INTERNATIONAL CENTRE FOR THE SETTLEMENT OF
INVESTMENT DISPUTES
GABRIEL RESOURCES LTD.
AND GABRIEL RESOURCES (JERSEY) LTD.
Claimants
VS.
ROMANIA
Respondent
ICSID CASE NO. ARB/15/31
RESPONDENT’S REPLY TO CLAIMANTS’ RESPONSE
TO THE TRIBUNAL’S QUESTIONS
REGARDING POST-2013 EVENTS
19 SEPTEMBER 2022
LALIVE
LDDP
LEAUA DAMCALI DEACONU PAUNESCU
Attorneys & Counselors
[Page ii]
[Page 1]
1 This submission sets out the Respondent's comments on the Claimants'
submissions in response to the Tribunal's questions of 12 April 2022 (the
“PHB4-Cl.”).1 The Respondent provides an Executive Summary of its
responses to the Tribunal's questions. The remainder of the submission
further expands on the Respondent's position and also comments on the
Claimants' answers to the Tribunal's questions.2
The Tribunal's first question:
"How should the Tribunal consider post-2013 events in evaluating
Claimants' principal claim (see C-PHB, Section VIII.A) and first
alternative claim (see C-PHB, Section VIII.B)?"When evaluating the principal and first alternative claims, the Tribunal
may largely disregard post-2013 events.First, by the Claimants' own admission, the post-2013 events do not form
the basis of these claims. Indeed, the Claimants recognize that, for these
claims, "post-2013 events ... were not the events that gave rise to the
breach and were not the cause of Gabriel's losses."Second, even if these claims were based on post-2013 and, more
specifically, post-2015 events, the Tribunal would not have jurisdiction
to hear them (Section 2).Third, on the merits, late/post-2013 events show that the Project Rights
have remained intact (Section 2.1). Contrary to the Claimants' arguments,
late/post-2013 events do not demonstrate or confirm the existence of an
anterior BIT breach – let alone a repudiation of the Project or a taking of
the Project Rights – in July 2011 or September 2013 (Section 2.2).
1 This is, indeed, the Claimants' fourth submission since the September 2020 hearing. The ↩
Claimants filed a third post-hearing brief (their "Observations on New Evidence") on 29
October 2021 (the "PHB3-Cl."), to which Romania responded on 6 December 2021 (the
"PHB3-Resp.").
2 Due to the page limit, the Respondent has focused this submission on only key points. ↩
Romania respectfully requests that the Tribunal not rely on the Claimants' selective narrative
and that it independently analyse the evidence.
[Page 2]
Fourth, on causation, late/post-2013 events show that there is no causal
link between Romania's alleged breaches and the Claimants' alleged losses
(Section 2.3).
The Tribunal's second question:
"What are the specific positions and/or claims of the Parties related to the
post-2013 events as presented in Claimants’second alternative claim (see
C-PHB, Section VIII.C)? What is the Claimants'position on when a breach
of the BITs occurred in respect of their second alternative claim?”The Respondent's position as to the second alternative claim can be
summarized as follows.First, as with the principal and first alternative claims, the Tribunal lacks
jurisdiction over the second alternative claim insofar as it rests on post-
2013 events that also post-date the Notice of Dispute (Section 3.1). (More
broadly, the second alternative claim is inadmissible (Section 3.2)).Second, the second alternative claim also fails on the merits (Section 3.3).
There are no "post-2013 events" that, on the facts before the Tribunal, can
amount to a breach of the BITs.The Claimants suggest that some of the purported post-2013 acts or
omissions "may" have amounted to a breach. Seven years after the Notice
of Dispute, the Claimants still cannot point to a BIT breach (before, during
or after 2013). They, however, have the burden of proving their claims,
including of taking a position on the purported breach, providing evidence
in support thereof, and establishing a cogent case. They have failed to do
so.There is also no evidence of any State policy or practice – before or after
2013 – to take or frustrate the Project Rights. Furthermore, none of the
post-2013 events or categories of events identified by the Claimants were
wrongful.
[Page 3]
Third, the second alternative claim also fails on causation (Section 3.4).
The full record of post-2013 events confirms that there is no causal link
between Romania's alleged breaches and the Claimants' alleged losses.
The Tribunal's third question is:
“In respect of damages, what specific positions and/or claims do the
Parties have in connection with the post-2013 events? What is the
Claimants' position on the quantification of damages for their second
alternative claim?"For their primary claim, the Claimants argue that a composite act, which
allegedly started on 1 August 2011, culminated in the alleged repudiation
of the Project Rights on 9 September 2013, in breach of the BITs. For their
first and second alternative claims, the Claimants contend that a single
measure led to the alleged repudiation of the Project Rights. The Claimants
further contend that, prior to the alleged repudiation of the Project Rights,
Romania breached FET through its treatment of the Claimants' investment.
For the quantification of the first and second alternative claims, the
Claimants recognize that their claim must be quantified as of the alleged
date of breach but argue that the valuation should be based on an ex-ante
value of the Project Rights, which would exclude the impact of Romania's
alleged breach of FET. To quantify their claims (as of 9 September 2013
for the first alternative claim and 27 July 2021 for the second alternative
claim), they calculate the indexed public market capitalization of Gabriel
Canada relative to its value on 29 July 2011.However, the Claimants' use of indexation for their alternative claims lacks
a legal basis, since the Claimants have not established that Romania's
treatment of the Claimants' investment amounted to a prior breach of FET,
separate from the alleged repudiation (Section 4.1.1).Any compensation awarded by the Tribunal for the first or second
alternative claims must be based on the FMV of the Project Rights
immediately prior to the breach. Should the Tribunal find that the Project
Rights have been repudiated, it should use Dr. Burrows' DCF valuation of
USD 156 million for the Project
[Page 4]
Even though
these valuations were as of 29 July 2011, this value would not have
increased thereafter given market trends (as evidenced by declines in the
gold share indexes) and greater social opposition.If the Tribunal accepts the Claimants' use of indexation, it should
nevertheless disregard their quantifications as they contain errors that
grossly overstate the value of the alleged losses (Section 4.1.2).First, Gabriel Canada's stock market capitalization is not a valid proxy for
the value of the Project Rights.Second, Exhibit C-2991 – which includes an “Index Calculator" that will
compute an indexed value of Gabriel Canada's market capitalization on a
selected valuation date, based on a selected "last clean" date – contains a
methodological error. In its reports, Compass Lexecon uses a trailing 90-
day volume-weighted average to calculate Gabriel Canada's market
capitalization (USD 2,617 million on 29 July 2011), whereas Exhibit C-
2991 performs this calculation using the unadjusted share value on the
selected "last clean date” (USD 2,956 million on 29 July 2011), thereby
further overstating Gabriel Canada's value by more than USD 300 million.
This error, as well as the other errors described below have been corrected
in the spreadsheet prepared by CRA, which is submitted as Exhibit CRA-
307.Third, if the Tribunal were to accept the use of indexation, it must choose
a "last clean date” that filters out the decreases in market capitalization for
reasons that are unrelated to the alleged breach, such as NGO opposition
to the Project and RMGC's lack of a social license. The Claimants'
valuation date for its principal claim, 29 July 2011, is not a “last clean date"
as the market capitalization on this date overstates the value of Gabriel
Canada and would make Romania liable for decreases in value that are not
attributable to the Respondent. Gabriel Canada's market capitalization on
23 and 29 November 2011 and 31 January 2012 suffers from similar issues.The earliest starting point for indexation is the trailing 90-day volume-
weighted average of Gabriel Canada's market capitalization as of 3 July
2012, which is 90-days after the 4 April 2012 court decision which
[Page 5]
confirmed the annulment of the Roşia Montană Local Council's attempt to
retroactively re-approve the 2002 PUZ and PUG. Within a month of this
decision, Gabriel Canada's capitalization collapsed due to the market's
belated realization that the disclosed Project timelines were unrealistic.
There could not have been any wrongful measures that affected Gabriel
Canada's value prior to this date as RMGC did not meet the requirements
for issuance of the environmental permit.Fourth, if indexation is used, the MVIS index (not the S&P/TSX index) is
the most appropriate, since adjusting for incorrect information would
reduce Gabriel Canada's market capitalization well below the MVIS
average value of USD 800 million.Fifth, the Claimants commit another error by failing to subtract net assets
(excluding mineral properties) from Gabriel Canada's market
capitalization on the “last clean date”. Instead, the Claimants deduct actual
cash on hand on the date of the alleged breach from the hypothetical
indexed market capitalization, thereby mixing “actual” and “but-for"
scenarios.Sixth, there is no basis to apply a 35% acquisition premium. Acquisition
premiums have never been awarded in international investment arbitration,
as they are not a standard feature of valuation analysis and are only
justified when there is additional value to a buyer. The Claimants fail to
provide any justification for an acquisition premium in this case.The Claimants' alleged losses for their first alternative breach, using a
trailing 90-day volume-weighted average of Gabriel Canada's market
capitalization on 3 July 2012 as a starting point (minus USD 138 million
in cash and assets held on that date) adjusted by the MVIS index as of 9
September 2013, would amount to USD 445 million (Section 4.2).Using the same methodology but with a date of an alleged breach of 4
January 2017 (the date on which Romania submitted the nomination file
to UNESCO), the Claimants' second alternative claim would amount to
USD 347 million (Section 4.3).
* * *
[Page 6]
2 The Respondent notes that all of the Tribunal's questions were addressed,
in substance, to the Claimants (who, therefore, were also invited to respond
to them first). This implies that the Claimants' case, as set out in their
previous pleadings and at the oral hearing, indeed was “not straightforward
and clear.”3 Accordingly, this additional round of pleadings effectively
amounts to yet another opportunity for the Claimants to replead their case,
as well as to produce additional evidence.4
3 The Respondent therefore maintains the position it set out in its Second
Post-Hearing Brief5 and its letter of 20 April 2022, including the position
that the PHB4-Cl., the first and second alternative claims, and the new
evidence (C-2991), are inadmissible.
4 To the extent that the Tribunal may wish to consider "post-2013 events" in
the context of the Claimants' principal and/or first alternative claims, it
lacks jurisdiction over those events insofar as they occurred after January
2015 (Section 2.1); on the merits, post-2013 events do not support either
the Claimants' principal claim or their first alternative claim (Section 2.2);
and post-2013 events only confirm that, even if RMGC had secured the
environmental permit by 2013, it would not have been able to secure the
building permit (Section 2.3).
5 As demonstrated in the Respondent's previous submissions, the Tribunal
lacks jurisdiction over most of the post-2013 events and thus must
3 Letter from Tribunal dated 27 April 2022. ↩
4 Not surprisingly, the Claimants have taken advantage of the opportunity and submitted new ↩
evidence prepared by their experts at Compass Lexecon (C-2991); PHB4-Cl., 32 (para. 90)
("Claimants provide herewith an updated excel file, prepared by Compass-Lexecon”).
5 PHB2-Resp., 5 (para. 19) and 85 (para. 181). ↩
[Page 7]
disregard them. Specifically, the Tribunal lacks jurisdiction (under both
BITs) over the claims and events that post-date the Notice of Dispute dated
20 January 2015.6
6 For the principal and first alternative claims, the Claimants admit that
"post-2013 events ... were not the events that gave rise to the breach and
were not the cause of Gabriel's losses.”7 Stated differently, the principal
and first alternative claims are not based on post-2013 events (whether they
pre-date or post-date the Notice of Dispute).
7 In any event, the Claimants do not point to any post-2013 acts or omissions
by Romania that would support the principal or first alternative claims, i.e.,
that would support the argument that a breach occurred in September 2013
(see Section 2.2).
8 The first alternative claim is also inadmissible on a separate and
independent basis.8 The Claimants only introduced their first alternative
claim (which was based on an entirely new date of alleged breach of the
BITs) in their responses to the Tribunal's questions following the
December 2019 hearing.9 The Respondent strongly objected, noting that it
was "too late to introduce new claims,"10 and further complained in
correspondence11 and its post-hearing briefs,12 noting that the admission of
the claim would constitute a serious departure from a fundamental rule of
procedure under Article 52(1)(d) of the ICSID Convention. To this day, the
Claimants have failed to provide any justification for their belated
submission.
6 Counter-Memorial, 176 (Sections 8.1.3 and 8.2); Rejoinder, 12 (Sections 2.1.2 and 2.2.2); ↩
PHB1-Resp., 2 (para. 6).
8 The Claimants' second alternative claim is similarly inadmissible. Infra, Section 3.2. ↩
9 Cl. PO27 Answers, 1 (paras. 3, 56, 84 and 120). ↩
11 Respondent's Letter dated 1 October 2020; Respondent's Letter dated 4 October 2020; ↩
Respondent's Letter dated 30 October 2020.
12 PHB1-Resp., 2 (para. 5); PHB2-Resp., 24 (para. 55). ↩
[Page 8]
9 For both the principal and first alternative claims, the Claimants
acknowledge that post-2013 events "were not the events that gave rise to
the [purported] breach” and “were not the cause of Gabriel's losses.”13
They nevertheless wrongly argue that late/post-2013 events “confirm" that
there was a “definitive and permanent" repudiation of the Project Rights
on 9 September 2013.14
10 However, late/post-2013 events do not support any alleged breach in
September 2013.15 On the contrary, late/post-2013 events show that
RMGC still holds all of its rights.
11 Should the Tribunal be inclined to consider late/post-2013 events to assess
the claims that a breach occurred in September 2013, it should consider all
late/post-2013 evidence on record. The Claimants' selection of late/post-
2013 events is incomplete and misleading.
12 The Claimants fail to recall, inter alia, that the License was renewed in
2019.16 The renewal of the License alone confirms that the Project is alive
and disproves the Claimants' claims.17 The Claimants have lost nothing
(since 2013 or otherwise) – neither the License, nor their assets relating to
the Project, including real estate.18 The Claimants also fail to recall that
Gabriel Canada did not impair the value of its allegedly worthless assets
until March 2016, i.e., years after the purported breach.19 This shows that,
15 Although the Tribunal's questions are directed at "post-2013" events, the Claimants also ↩
refer to several (late) 2013 events. PHB4-Cl., p 4 (paras. 9, 11, 16-24, 55-56, 58-59).
16 R-666; PHB2-Resp., 20 (para. 50). ↩
17 Tr. 2019, 358:16-359-11; Rejoinder, 41 (Sections 4 and 7). ↩
18 PHB1-Resp., 137 (paras. 500-501). ↩
19 Rejoinder, 291 (paras. 912-916). ↩
[Page 9]
prior to 2016, the Claimants themselves did not consider that the Project
Rights had been repudiated.
13 The Claimants try to rationalize their post-2013 behavior by claiming that
they did not have "the benefit of hindsight" and that they were "hopeful
that the announced decision rejecting the Project might change".20
However, this excuse is contradicted by the fact that, years later, the
Claimants sought (and obtained) the renewal of the License, and does not
explain how the alleged destruction of the value of their investment could
have occurred without their knowledge.
14 The Claimants also fail to acknowledge the numerous permits Romanian
authorities have issued or renewed since 2013. Those permits include
(i) dam safety permits and endorsements by the Ministry of Environment
issued in December 2014 and October 2017 (which remained valid until
their expiration in October 2019);21 and (ii) urban certificates (with UC
47/2013 remaining valid until 2016 and, in turn, UC 98/2016 remaining
valid until 2018).22
15 The Claimants also fail to recall that State authorities (including the
Ministry of Culture, the Alba County Council and the Ministry of
Environment) have defended in court ADCs, urban certificates, and urban
plans issued (or approved) for the Project – in proceedings initiated by
NGOs. As of September 2013, State authorities had been involved in 78
such proceedings (including six that were still ongoing).23 Since
September 2013, State authorities have continued defending the Project in
litigation brought by NGOs.24
16 Numerous Project endorsements/approvals remain valid and have neither
expired nor been otherwise modified since 2013, including the Ministry of
21 RMGC did not seek to renew the permits. PHB2-Resp., 20 (para. 50); C-2213. ↩
22 For a more exhaustive list, see PHB2-Resp., 21 (para. 50); see also Rejoinder, 181 (para. ↩
577); R-290 (RMGC has not applied for a prolongation of the validity of this UC).
23 PHB2-Resp., 22 (para. 51); Counter-Memorial, 363 (Annex IV rows 1-78); Rejoinder, 322 ↩
(paras. 994-995).
24 See R-289; Counter-Memorial, 145 (paras. 383-385). ↩
[Page 10]
Culture's April 2013 endorsement,25 the February 2013 Orlea Research
Plan for preventive archaeological research (which RMGC has yet to
initiate),26 and ten ADCs.27
17 The Claimants also fail to mention their statements in late-2013 and 2014
reflecting their understanding that the Project was alive and that the
environmental permitting process was ongoing (notwithstanding the
rejection of the Roșia Montană Law).28 This is fatal to the Claimants'
attempt to manufacture a treaty claim after the fact.
18 To support their argument that a BIT breach occurred on or as of
9 September 2013,29 the Claimants point to various “post-2013 events”.
19 The Claimants do not produce a shred of evidence that these events are
related to a purported (prior) repudiation of the Project. None of the
purported events were accompanied by any decisions or statements that
they were being taken pursuant to a (prior) repudiation of the Project. They
could not since there is no such governmental decision or policy.
20 Many of the "events" that the Claimants purport to rely upon are not events
at all, but political statements – without any implementing conduct – made
in late 2013 and 2014 in the context of the vote on the Roşia Montană
Law.30 Similarly, none of the statements refer to a prior governmental
decision – on or around 9 September (or at any time) – to "repudiate" or in
any way reject the Project.
25 PHB1-Resp., 22 (paras. 50-51); C-655. ↩
26 PHB1-Resp., 23 (para. 57); R-221. ↩
27 See C-669 to C-671 and C-673 to C-679. ↩
29 The Respondent has already demonstrated at length that the Claimants have failed to prove ↩
a BIT breach on or as of 9 September 2013. Rejoinder, 168 (Section 3.6); PHB1-Resp., 58
(Sections 2.1.6 and 2.4.6); R. PO27 Reply, 3 (Section 2).
30 PHB4-Cl., 4 (paras. 11(b)-(d) and (f)-(g)). ↩
[Page 11]
21 Furthermore, the Claimants take statements out of context.31 For example,
they misleadingly suggest that Prime Minister Ponta indicated on
11 September 2013 that Romania was nationalizing the Project,32 when he
was in fact explaining that a hypothetical cancellation of the Licence would
amount to nationalization.33
22 The Claimants also wrongly suggest that Minister of Environment Plumb
indicated that, should Parliament reject the Roşia Montană Law, the
Ministry of Environment would reject the Project.34 Minister Plumb,
however, merely noted that Parliament's decision would be considered by
the Ministry of Environment.35 The Claimants also fail to mention that
Minister Plumb reiterated before the Joint Special Committee in
September 2013 that the Ministry of Environment was “not asking the
Romanian Parliament to issue the environmental permit”, since it was “the
sole responsibility of the [TAC] in view of initiating and proposing the
environmental permit.”36 She was thus making clear that the outcome of
the vote on the Roşia Montană Law was separate from that of RMGC's
application for the environmental permit.
23 Conversely, the Claimants omit to mention the statements of Romanian
officials as well as the Claimants' own statements (i) supporting the Roşia
Montană Law and the Project in 2013 and thereafter (see Section 3.3
below) and/or (ii) dissociating the outcome of the Roşia Montană Law vote
from that of the Project.37
24 For instance, in late 2013, even after the Joint Special Committee
recommended the rejection of the Roşia Montană Law, Gabriel Canada
conveyed its understanding to the market that the environmental review of
31 PHB2-Resp., 67 (para. 151); for a detailed response to the Claimants' mischaracterization of ↩
the political statements at issue, see PHB1-Resp., 107 (paras. 385-394).
32 PHB4-Cl., 4 (para. 11(b)). ↩
33 PHB2-Resp., 65 (para. 146). ↩
34 PHB4-Cl., 5 (para. 11(f)). ↩
35 C-828; see also PHB1-Resp., 65 (para. 216). ↩
36 C-506, 31; see also id, 39 (Ms. Plumb also made clear that, if the Law were rejected, RMGC ↩
still needed to inter alia secure a declaration of outstanding public interest, for purposes of the
Water Framework Directive, and to provide the agreed environmental, financial guarantees).
37 PHB2-Resp., 48 (para. 116); PHB1-Resp., 107 (para. 386). ↩
[Page 12]
the Project still needed to be completed in any event.38 Also, in early 2015,
RMGC was still recognizing in its annual management report that the
environmental permitting process remained underway and that it was in
“frequent contact with the various ministries and levels of government
... and ha[d] not been given any information to suggest that the
[Project] w[ould] not go ahead".39
25 To argue that there was a BIT breach on or as of 9 September 2013, the
Claimants refer to certain subsequent events,40 none of which confirm or
even suggest a taking of the Project Rights or repudiation of the Project
(on or as of 9 September 2013 or otherwise):
38 Rejoinder, 167 (paras. 523, 530); see also R-539, 5; R-540, 2 (noting, in March 2014, that ↩
the Government deferred decision on the environmental permit until after Parliament's review).
39 See Respondent's Opening 2019, 93; C-1570.03, 6 and 16; C-1570.04, 21 (emphasis ↩
added); on Gabriel Canada's statements; see also Rejoinder, 5 (para. 20); PHB1-Resp., 108
(paras. 390-393).
41 PHB4-Cl., 4 (paras. 11(a) and 11(d)). ↩
42 PHB2-Resp., 69 (para. 154). ↩
[Page 13]
of Orlea and Cârnic;43 in this regard, the Claimants fail to recall
that:
i) in January and March 2014, RMGC and Gabriel Canada
recognized, respectively, that RMGC still needed to apply for
and secure several endorsements for the PUZ;44
ii) even though (1) the Romanian authorities (and the public) had
an ongoing concern regarding cyanide management,
(2) Mr. Henry recognized in 2013 that a cyanide audit was
necessary, and (3) Wardell Armstrong proposed in late
September 2013 to undertake that audit, RMGC did not follow
through;45
iii) in late 2013 and 2014, State authorities reiterated concerns
about the Project's lack of compliance with the Water
Framework Directive and the need for a water management
permit. Yet, RMGC never submitted the necessary
documentation;46
43 PHB2-Resp., 69 (para. 154); Respondent's Opening 2019, 39 (referring to C-473, 16). ↩
44 Respondent's Opening 2019, 59-60. ↩
45 Respondent's Opening 2020, 39-44. ↩
46 PHB2-Resp., 35 (para. 80); C-2909; R-545; Respondent's Opening 2019, 79-82. ↩
47 Rejoinder, 284 (paras. 889-896); Respondent's Opening 2019, 227. ↩
48 Counter-Memorial, 162 (Section 7); Rejoinder, 228 (paras. 720-746); Respondent's ↩
Opening 2019, 231; Infra, Section 2.2.3.
49 Rejoinder, 233 (paras. 733-736). ↩
[Page 14]
26 According to the Claimants, the Government's post-2013 “decisions"
relating to cultural heritage were “blocked politically" since August 2011
(further to the Government's alleged “new policy") and the result of the
alleged September 2013 decision not to do the Project.52
27 However, the Ministry of Culture did not block or decide to block the
Project in either August 201153 or September 2013.54 Nor did the
Government.55 The Ministry of Culture's April 2013 endorsement of the
Project remained valid throughout 2013 and remains valid to this day. This
endorsement in and of itself disproves any suggestion that the Ministry
blocked the Project.
28 As to cultural heritage, the Claimants allege that "[post-2013] events must
be viewed in light of the status in 2013” of (i) “developments relating to
the [LHM]" and (ii) “[ADCs] for Cârnic and Orlea”.56 The Claimants' new
position57 seems to be that these “matters would not have blocked the
50 Rejoinder, 281 (paras. 880-885); see also Reasoned Decision on Claimants' Request for ↩
Emergency Temporary Provisional Measures dated 21 October 2016.
51 Rejoinder, 288 (paras. 901-902); Reply, 248 (para. 586) (the moratorium is “not a keystone ↩
of Claimants' case").
52 PHB4-Cl., 7 (paras. 15, 16(d) and (e), 19(c), and 21-22). ↩
53 Rejoinder, 94 (Section 3.3.2.7). ↩
54 Rejoinder, 212 (Section 3.6.2). ↩
55 Rejoinder, 135 (Section 3.5). ↩
56 PHB4-Cl., 7 (paras. 15-38). ↩
57 Contrast PHB4-Cl., 11 (paras. 20-22) (noting Claimants' alleged expectation "as of 2013" ↩
that the NGO litigation against the Cârnic ADC would be rejected, that an ADC for Orlea would
be issued, and that the 2010 LHM would be corrected) with Memorial, 62 (para. 167) (noting
[Page 15]
Project" but that following the Government's purported repudiation of the
Project Rights in September 2013, the Ministry of Culture “was not
motivated to give effect to the ADCs ... and correct ... the LHM".58 The
Claimants' attempt to differentiate between the cultural authorities' actions
before and after September 2013 (to demonstrate the purported repudiation
of the Project) is not supported by the facts: the Ministry of Culture did not
block the Project in 2011, 2013 or at any time.59
29 Regarding the 2010 LHM, although recognizing the necessity of
amending the LHM list before "the eventual issuance of construction
permits",60 the Claimants wrongly allege that Romania obstructed the
amendment process. Under Romanian law, the LHM amendment process
involves the Ministry of Culture, the NIH, and the decentralized Alba
Directorate. After exchanges between these authorities in 2012-2014 (i.e.,
a year after the alleged repudiation of the Project Rights), there was no
consensus regarding the nature and scope of the modifications to be made
to the LHM. While the Alba Directorate shared RMGC's views, the NIH
proposed to revert to the delimitations of the 1991 LHM (because the
Alburnus Maior archaeological site included in the 1991 LHM had
incorrectly been divided in the 2004 LHM) and thus to include the 2km
radius around the Roşia Montană archaeological site.61 Although the
outcome of this process (namely the 2015 LHM) may not be to the
Claimants' liking, it does not evidence any wrongful conduct on the part
of Romania. The adoption of the 2015 LHM – by the Ministry of Culture
– was the last step in a deliberative process that began before 2013,
involving the Alba Directorate, the NIH and the Ministry of Culture.
the Ministry of culture's arbitrary refusal prior to 2013 to authorize the Orlea preventive
research), 128 (paras. 324-325) (alleging that the Ministry of Culture improperly withheld the
Cârnic ADC in 2011 pending Claimants' agreement to increase its financial contribution for
heritage protection), 132 (paras. 332-333) (alleging that the Ministry of Culture failed to correct
the 2010 LHM), and 158 (para. 384) (alleging that the Ministry of Culture was withholding its
endorsement in 2012 pending the commercial renegotiations).
58 PHB4-Cl., 7 (paras. 15 and 23). ↩
59 E.g., supra, para. 16 (showing that the cultural authorities issued/did not revoke approvals in ↩
favor of the Project even after the alleged September 2013 repudiation).
61 Rejoinder, 217 (paras. 690-695). ↩
[Page 16]
30 The Claimants' arguments regarding the modification of the 2010 LHM62
lack merit:
62 PHB4-Cl., 8 (paras. 16-19). ↩
63 Rejoinder, 213 (paras. 679-683). ↩
64 PHB4-Cl., 8 (paras. 16(d) and 18(c)). Minister Hunor was not suggesting that he was ↩
involved in any possible renegotiations. See Rejoinder, 115 (para. 375).
65 Rejoinder, 216 (para. 685-686 and 688). ↩
66 Counter-Memorial, 82 (para. 218); Rejoinder, 220 (para. 695). ↩
67 Rejoinder, 221 (paras. 697-701). ↩
69 Rejoinder, 221 (para. 699); PHB2-Resp., 71 (para. 156, first bullet). ↩
[Page 17]
permits for the Project on numerous grounds, the 2010 LHM being just
one;70
31 Regarding the Cârnic ADC, the Claimants downplay any risk that existed
in 2013 in relation to this ADC. The Claimants allege that the NGO legal
challenge, which was pending in 2013, would be rejected, that "in due
course the challenge indeed was dismissed",76 and that the Ministry of
Culture should have given effect to the ADC and declassified Cârnic
70 PHB4-Cl., 9 (paras. 18(a) and 24). See also Counter-Memorial, 54 (Section 3.4); Rejoinder, ↩
138 (paras. 454, 563, 696, and 715).
73 Rejoinder, 223 (paras. 702-708). The Minister of Culture's tagging of NGOs in a Facebook ↩
post does not demonstrate opposition to the Project but served the purpose of informing the
NGOs of his answers to Professor Piso, the President of the Roşia Montană Cultural
Foundation, who had publicly raised cultural heritage issues with the Ministry.
75 Rejoinder, 214 (paras. 681-683 and 689). See also Respondent's Opening 2019, 40-41 ↩
(timelines) and 42 (map showing areas not covered by a valid ADC).
76 PHB4-Cl., 9 (para. 18(b)). ↩
[Page 18]
"following issuance of [the] ADC” in July 2011.77 These propositions are
misguided.78
32 The NGO challenge to the Cârnic ADC was ultimately upheld. Indeed,
although it was dismissed on 10 December 2020,79 the Claimants fail to
disclose that the Ploiești Court of Appeal overturned that decision and
annulled the ADC on 16 February 2022.80 This decision brings to an end
eleven years of litigation; it is now incumbent on RMGC to propose a new
ADC for Cârnic.
33 In 2013, the Claimants could not reasonably assume that the NGO
challenges to the (second) Cârnic ADC would be dismissed.81 Indeed,
some of the grounds raised by Project opponents (such as the fact that areas
had been discharged without being fully researched)82 had successfully led
to the annulment of the first Cârnic ADC.83 In the end, the court annulled
the ADC on two other grounds, unrelated to the issues raised by the
Claimants in the arbitration.84
34 The Claimants have not complained about this decision or more generally
about the court proceedings, including by raising any sort of due process
argument (in the proceedings or in this arbitration). And, as previously
noted, the Claimants have not alleged that any of the court decisions
relating to the Project amount to a breach of FET or denial of justice.85
35 Regarding the Orlea ADC, the Claimants recognize that “research ...
remained to be completed" but inexplicably blame in the arbitration the
Ministry of Culture for not issuing the permits for the preventive
78 Supra, para. 30(g) (in relation with the proposition that the Ministry of Culture should have ↩
declassified Cârnic once the ADC was issued).
79 PHB4-Cl., 9 (para. 18(b) and footnote 47). ↩
81 PHB4-Cl., 9 (para. 18(b)). ↩
82 See Counter-Memorial, 83 (para. 219). ↩
83 See Counter-Memorial, 63 (para. 167). ↩
84 The arguments have been raised since 2012, when RMGC was an intervening party. See C- ↩
2990, 23 and 27.
85 See Rejoinder, 2 (footnote 1) and 222 (para. 701 and footnote 990). ↩
[Page 19]
archaeological research earlier (prior to February 2013).86 The Claimants
only have themselves to blame for the lack of ADC for Orlea (since 2013
and in general), since:
86 PHB4-Cl., 10 (para. 19(a)). ↩
87 Respondent's Opening 2019, 43. ↩
88 PHB4-Cl., 10 (para. 19(a)). ↩
92 Rejoinder, 209 (para. 667). ↩
[Page 20]
securing an ADC for Orlea.93 Neither the Ministry of Culture's
endorsement, nor the Orlea Research Plan have ever been revoked.
36 Moreover, the Claimants have no basis to state that “RMGC reasonably
expected that an ADC for Orlea in due course would have been issued”94
especially given the likelihood of significant discoveries in this area.95
RMGC's failure to start the research and obtain an ADC also affected the
area's characterization in the LHM and the potential need to modify the
footprint of the Project.96
37 The Claimants refer to a delineation study of the Roşia Montană
archaeological site, which the Ministry of Culture commissioned in late
2016 to establish the precise limits of the site instead of the generic 2km
radius that figures in the LHM around this historical monument, and
complain that it covered areas that had been archaeologically discharged.97
The study, however, explains why the delineated area also includes
discharged areas: an area can be covered by an ADC (because of the
expectation that no further artifacts will be found) but nevertheless remain
on the LHM or be proposed as a UNESCO site (because it belongs to a
wider integrated landscape).98
38 Regarding the UNESCO listing,99 the Claimants argue that the decisions
leading to the UNESCO inscription “were the result of the Government's
decision on September 9, 2013 not to do the Project”.100 However, there
was no decision in September 2013 “not to do the Project" and there was
no decision at that point in time to propose Roșia Montană as a UNESCO
site. When the Ministry of Culture reactivated the application in late
93 PHB1-Resp., 23 (para. 57 third bullet). ↩
94 PHB4-Cl., 10 (para. 19(b)). ↩
95 PHB1-Resp., 52 (paras. 161-162); PHB2-Resp., 78 (para. 170). ↩
96 PHB1-Resp., 52 (paras. 159 and 163-164); Rejoinder, 189 (para. 606). ↩
97 PHB4-Cl., 13 (paras. 28-29); C-2370, 5. The Claimants' suggestion that the Ministry of ↩
Culture should have invalidated the ADCs is inapposite where the ministry cannot invalidate
an ADC, this can only be done by courts to decide on a challenge to annul an ADC, as happened
with the first and second Cârnic ADC.
98 Dragos LO II, 112 (paras. 482-497); see also CMA - Claughton Report I, 5 (paras. 18-26). ↩
99 PHB4-Cl., 13 (paras. 30-38). ↩
[Page 21]
January 2020, that was nearly seven years after the alleged breach in
September 2013. The Ministry of Culture did not in any way link the
reactivation of the UNESCO application to a prior Government decision
(in September 2013 or otherwise) “not to do the Project".
39 The Respondent has already explained the reasons behind its reactivation
of the UNESCO application.101 For years, the village of Roșia Montană
(and the surrounding area) has been paralyzed and in socio-economic
limbo due to RMGC's failure to develop the Project. The UNESCO listing
lays the groundwork for funding and development opportunities in case
RMGC definitively abandons the Project and/or until such time as it
secures the permits and social license for the Project. It is a positive
development which does not affect RMGC's mining rights.
40 The Claimants suggest that there was inconsistent conduct on the part of
the Respondent and its counsel in stating at the hearing in December 2019
that the nomination file was “no longer submitted to UNESCO".102
However, the Respondent correctly represented the status of the UNESCO
process at the time.
41 The Claimants maintain that the UNESCO protection regime "would
preclude any construction permit" that must be “reflected in the urbanism
plan for the area”.103 However, as previously explained, Romanian law
already required urbanism plans for the protection of the areas classified
as historical monuments within the Project Area.104 The Project has always
needed a declassification of those monuments and the UNESCO listing has
not changed that.105 Further, the UNESCO listing does not affect RMGC's
right to seek the declassification of the Project Area from the list of
historical monuments.106 Thus, the Claimants' assessment as to the effect
101 PHB3-Resp., 1 (paras. 1-4). ↩
102 PHB4-Cl., 16 (para. 35). ↩
103 See PHB4-Cl., 14 (paras. 32-33). ↩
104 PHB3-Resp., 10 (para. 27); R-99, 37 (Art. 47(3)(b)) (providing that the preparation of a ↩
PUZ shall be mandatory in case of "protected built-up areas and protected areas for
monuments").
105 PHB3-Resp., 10 (para. 27). ↩
106 PHB3-Resp., 13 (Section 2.2.5). ↩
[Page 22]
of the UNESCO listing as a matter of Romanian law is manifestly
erroneous.
42 The Claimants argue that post-2013 events show that the Government's
purported repudiation of the Project in September 2013 encompassed the
joint venture with the Claimants and the Bucium Project.107
43 The Respondent did not abandon the joint venture with the Claimants –
before or after 2013 – and has showed in many ways its support of the joint
venture and the Project since late 2013.108
44 The Respondent has already addressed at length the Claimants' arguments
about (i) allegedly retaliatory investigations against RMGC in November
2013 and (ii) Minvest's alleged failure as of November 2013 to participate
in the recapitalization of RMGC.109
45 As regards Bucium, it remains unclear whether the Claimants allege that
NAMR's purported failure to take a decision was a breach in itself (i.e., as
it falls within the scope of the alleged repudiation) or constituted a
consequence (“is among the effects”) of the alleged repudiation.110 In any
event, NAMR's actions have always complied with Romanian law;111 the
Claimants were responsible for much of the delay and have never lodged
any complaint with the Romanian authorities or in court to enjoin a
decision from NAMR.112 Further, once they realized RMGC would neither
obtain the social license (following the massive street protests of 2013) nor
satisfy the permitting requirements for the Project, they reignited their
107 PHB4-Cl., 18 (paras. 43-45). ↩
108 Supra, Section 2.2.1; R. PO27 Reply, 114 (Section 7); PHB2-Resp., 20 (Section 2.5). ↩
109 PHB4-Cl., 18 (para. 45); Rejoinder, 284 (paras. 879-885) (investigations) and (paras. 886- ↩
896) (recapitalization). The Claimants have not brought a claim in connection with the VAT
investigations. See R. PO27 Reply, 118 (footnote 472).
110 PHB4-Cl., 18 (paras. 43-44). ↩
111 Rejoinder, 228 (paras. 720-736 and 739-744). ↩
[Page 23]
interest in Bucium only in anticipation of the arbitration.113 As they
confirm now,114 the two projects were interdependent and just as they
stopped progressing the Project, the Claimants also stopped progressing
the Bucium applications, instead focusing on the arbitration.
46 Should the Tribunal consider late/post-2013 events in relation to the
Claimants' primary or first alternative claims, it must also consider these
events in terms of causation.
47 The Claimants must prove that, had the environmental permit been issued
in 2011 or 2013, and in the absence of further alleged breaches of the BITs,
RMGC would “in all probability” or “with a sufficient degree of certainty"
have obtained all necessary approvals and the Project would be operating
profitably.115
48 Even if RMGC had obtained an environmental permit in 2011, 2013, or
thereafter, the late/post-2013 evidence further confirms that RMGC would
in any event have not obtained financing or a building permit due to its
failure to obtain a social license, its inability to secure the necessary surface
rights, and its inability to meet the permitting requirements. Most
importantly:
113 Rejoinder, 235 (paras. 737-738). ↩
114 PHB4-Cl., 18 (para. 44). ↩
115 Rejoinder, 302 (Section 8). ↩
116 Counter-Memorial, 130 (paras. 342-356) and 354 (Annex III); Rejoinder, 331 (para. 1017); ↩
PHB1-Resp., 135 (paras. 493-496).
117 E.g., Pop Opinion, 13 (paras. 42 and 49); Stoica Opinion, 51 (paras. 101 and 125). ↩
[Page 24]
endorsement for the PUZ, and the urban certificate).118 Gabriel Canada
noted in its 2014 Annual Management Report that the objective of the
NGOs' litigation was to “sto[p] the Roşia Montană Project”;119
49 The Tribunal should accordingly dismiss the Claimants' principal and first
alternative claims due to their failure to establish the causal link between
a purported breach in August 2011 or September 2013 and the alleged
losses.
118 Respondent's Opening 2019, 41, 61, 66, and 70 (litigation timelines). ↩
120 R. PO27 Reply, 98 (para. 244); Rejoinder, 324 (para. 1000) (referring to the witness ↩
statements of Messrs. Cămărășan, Cornea, Devian, Jurcă, Golgot, and Petri, and Ms. Jeflea);
PHB1-Resp., 39 (paras. 111-117 and 456) (also referring to the second witness statements of
Ms. Jeflea and Messrs. Cămărășan, Devian, Golgot, and Jurcă).
121 Respondent's Opening 2020, 137; Tr. 2020, 241:3-17. ↩
123 Rejoinder, 377 (paras. 1108 and 1122-1125); PHB1-Resp., 206 (paras. 801-804). ↩
[Page 25]
50 Post-2013 events also do not support the Claimants' second alternative
claim.
51 As with the principal and first alternative claims, the Tribunal lacks
jurisdiction over the second alternative claim insofar as it rests on events
that post-date the Notice of Dispute (Section 3.1) and more broadly, the
second alternative claim is inadmissible (Section 3.2).
52 On the merits, there is not a single post-2013 event that could conceivably
amount to a breach of the BITs (Section 3.3). The claim therefore stands
to be dismissed.
53 In any event, as with the principal and first alternative claims, post-2013
events confirm that the Project was not viable and that there is no causal
link between the alleged breach and the alleged losses (Section 3.4).
54 For the second alternative claim, the Claimants argue that "the Tribunal
may consider ... several dates associated with Romania's post-2013 acts
and omissions... as the moment when the Project Rights were effectively
taken ...”124 They then refer to various “events”, most of which occurred
in or after 2015. The Tribunal, however, does not have jurisdiction over the
second alternative claim insofar as it is based on events that post-date
20 January 2015 for the reasons stated in Section 2.1 above, and in
previous submissions.125
124 PHB4-Cl., 21 (para. 54) (emphasis added). ↩
125 PHB3-Resp., 15 (Section 3.1). ↩
[Page 26]
55 The Claimants articulated (albeit superficially) a second alternative claim
for the first time in their PHBs, i.e., after the hearings.126
56 The Respondent objected, noting that the claim was late127 and that its
admission would amount to a breach of a fundamental rule of procedure
under Article 52(1)(d) of the ICSID Convention.128 The Claimants have
not presented any response to that objection. Notably, they do not deny that
the second alternative claim is a new claim.129
57 Nevertheless, the Tribunal in its 12 April 2022 letter provided another
opportunity for the Claimants to develop this new claim.130
58 The Claimants have seized upon this opportunity to propose yet another,
different formulation of their case: whilst the Claimants had claimed in
their PHB1 dated 18 February 2021 that the purported frustration of the
Project Rights had occurred with the issuance of the 2015 LHM or the
UNESCO nomination in February 2016 (or other dates linked to alleged
failures in relation to the Bucium license application and the environmental
permit),131 they now say that the alleged breach “most clearly occurred"
on 27 July 2021, i.e., when UNESCO inscribed Roşia Montană as a World
126 PHB1-Cl., 106 (Section VIII.C). Although the Tribunal noted that this claim was presented ↩
"for the first time" in the Claimants' "Responses to the Tribunal's Questions set out in
Procedural Order No. 27 and Post-Hearing Briefs", the Claimants' first attempt at articulating
this claim as a further alternative claim only occurred in their PHB1 (i.e., after the hearings). In
any event, it is undisputed that the second alternative claim was submitted after the Claimants'
Reply, and is therefore inadmissible under Rule 40(2) of the ICSID Arbitration Rules.
127 PHB2-Resp., 5 (para. 19). ↩
128 PHB2-Resp., 85 (para. 181). ↩
129 The Claimants initially tried to characterize their second alternative claim as merely an ↩
argument for an alternative valuation date. See PHB1-Cl., 99 (para. 231). However, the
Tribunal has rejected this characterization, referring to it in its letter as "the second alternative
claim". See Letter from Tribunal with further questions dated 12 April 2022, 2.
130 Letter from Tribunal with further questions dated 12 April 2022, 2; supra, para. 2. ↩
131 PHB1-Cl., 106 (paras. 250-252). ↩
[Page 27]
Heritage site, whilst maintaining that the breach might also have occurred
earlier.132
59 The second alternative claim (both in its original and new formulation)
falls foul of Rule 40(2) of the ICSID Arbitration Rules and is therefore
inadmissible.133
60 When asked when the purported breach of the BITs occurred in respect of
their second alternative claim, the Claimants are still unsure.
61 First, they state that "after September 9, 2013, the date when Romania's
treatment most clearly completed the effective taking of the Project Rights
in breach of the BITs was July 27, 2021...”134 They also refer to several
"dates" that “the Tribunal may consider as the moment when the Project
Rights were effectively taken..."135 The Claimants do not take a definitive
position as to the alleged date of breach and fail to meet their burden of
proof.
62 Second, the Claimants' uncertainty as to when the purported post-2013
breach occurred is evidenced by their further change of position. The
Claimants' new position that a breach “most likely occurred" on 27 July
2021136 contradicts their position in their PHB1, where they asserted that
the breach occurred either with the issuance of the 2015 LHM or the
UNESCO nomination in 2016 (or earlier).137 The Claimants could have
pleaded a new date of breach in their PHB3 dated 29 October 2021 (which
was filed after the UNESCO listing) but they did not.138 This latest change
132 PHB4-Cl., 21 (para. 53). ↩
133 Rule 40(2) provides: “An incidental or additional claim shall be presented not later than ↩
in the reply and a counter-claim no later than in the counter-memorial, unless the Tribunal,
upon justification by the party presenting the ancillary claim and upon considering any
objection of the other party, authorizes the presentation of the claim at a later stage in the
proceeding." (emphasis added).
134 PHB4-Cl., 19 (para. 47) (emphasis added). ↩
135 PHB4-Cl., 21 (para. 54) (emphasis added). ↩
136 PHB4-Cl., 19 (paras. 47 and 53). ↩
137 PHB3-Cl., 18 (paras. 38-39). ↩
138 See PHB3-Cl., 18 (para. 39). ↩
[Page 28]
of position thus appears to be driven solely by tactical considerations
related to the performance of gold share indexes.139 It is, in any event,
inconsistent with the Claimants' own case140 and lacks credibility.
63 Indeed, it is an unrebuttable demonstration of the inherent weakness of the
Claimants' claims that they have to rely on events that took place six years
after the start of this arbitration as the alleged factual basis of their claims.
64 The Claimants' uncertainty as to the purported breach is further established
by their enumeration of additional measures "that the Tribunal may
consider as the moment when the Project Rights were effectively taken”,141
specifically (i) the “voting down of the Special Law"; (ii) alleged "failures
to take administrative actions that were due”; and (iii) the 2015 LHM.142
65 Third, the Claimants' allegations rest upon the purported existence of a
"Government policy and course of conduct in relation to the Project that
began in August 2011 and continued thereafter”, which allegedly “led to a
decision by the Government on the political level to reject the Project" and
subsequently “caused the Government not to complete any aspect of
permitting in relation to the Project Rights.”143 However, the absence of
any such policy is evident from the record of not only pre-2013 but also
post-2013 events (Section 3.3.1). Moreover, the post-2013 events
enumerated by the Claimants are not wrongful (Section 3.3.2).144
66 The Claimants' selection of post-2013 events involve an array of alleged
acts or omissions, at different moments in time, by a broad spectrum of
actors, including the Senate, the Chamber of Deputies, the Joint Special
139 See, the evolution in the gold share indexes in C-2991, tab "C-2091.02". ↩
141 PHB4-Cl., 21 (para. 54). ↩
142 PHB4-Cl., 21 (paras. 54-65) (citing "acts and omissions that the Tribunal may consider as ↩
the moment when the Project Rights were effectively taken or otherwise entirely frustrated").
143 PHB4-Cl., 28 (para. 76). ↩
144 PHB4-Cl., 22 (paras. 57, 60, and 62). ↩
[Page 29]
Committee, the Special Commission, various Government Ministers, the
Ministries of Environment and of Culture, civil servants involved in the
TAC procedure, the NAMR, decentralized State agencies (such as the Alba
Directorate), and scientific bodies attached to the Ministry of Culture (such
as the NIH and the National Committee for Archaeology). The Claimants
have failed to establish that the late/post-2013 acts, omissions and/or
"events" of which they complain were driven by any sort of policy or
practice.
67 Throughout this arbitration, the Respondent has consistently shown that
the State acted in accordance with Romanian law, supporting the Project
to the extent that it could, before and after 2013.145
68 The Claimants allege that the UNESCO listing was "the culmination of a
Government policy and course of conduct in relation to the Project that
began in August 2011 and continued thereafter” to “reject the Project and
the State's joint venture with Gabriel”.146 They have, however, produced
no evidence that the UNESCO nomination in February 2016, the
submission of the nomination file in January 2017, its referral back to
Romania in July 2018, and its reactivation in late January 2020 are part of
a State policy or practice. They vaguely say that the alleged rejection of
the Project that began in August 2011 “in turn caused the Government ...
to seek the UNESCO listing"; however, the alleged causal relationship
between these two sets of circumstances is based on nothing but inference
and speculation. Further, the conduct in question spans a period of ten
years, during which there were multiple successive changes of
Government and Prime Ministers. The theory that the actions of these
successive Governments were part of a State policy or practice is simply
not credible.
145 E.g., Rejoinder, 5 (paras. 19, 365-367, 426, 609, 723, and 1056); R. PO27 Reply, 27 (paras. ↩
69, 110, 153, and 224).
146 PHB4-Cl., 28 (para. 76). ↩
[Page 30]
69 As demonstrated below, there is nothing wrongful about the purported acts
and omissions listed by the Claimants.
The “voting down of the Special Law"
70 The Claimants do not allege that the rejection of the Roşia Montană Law
by the Special Commission, the Senate and the Chamber of Deputies
between November 2013 and June 2014 was wrongful under Romanian or
international law.147 This should be the end of the argument. If these events
were not wrongful as a matter of international law, they are irrelevant to
the determination of a breach of the BITs.
71 The Claimants try unsuccessfully to link those votes to purported political
statements “insist[ing] that the Project would proceed only if Parliament
voted to approve” the Roșia Montană Law.148 There was, however, nothing
"pre-arranged" or untoward about these votes.149 The MPs hailed from
different political groups and voted freely, in accordance with Romanian
law.
72 The Respondent has also repeatedly shown that (i) political statements are
not measures for the purpose of determining a breach of international law;
and (ii) the rejection of the Roşia Montană Law was not a rejection of the
Project.150 Political statements do not represent any decisions taken by the
government; in Romania, as elsewhere, governmental decisions are taken
in a formal session, in accordance with a strictly defined procedure. The
Claimants recognize as much when they state that “the formal rejection of
the Special Law, which occurred progressively through the votes taken on
the dates referenced above, did not provide a basis in law to cancel the
Project or to repudiate the Project Rights.”151
147 PHB4-Cl., 21 (para. 55). ↩
148 PHB4-Cl., 22 (para. 56). ↩
151 PHB4-Cl., 22 (para. 57) (emphasis added). ↩
[Page 31]
73 The Claimants again disregard statements by the same politicians which
indicated that, regardless of the outcome of the vote on the Roşia Montană
Law, the Project needed to comply with Romanian environmental laws and
regulations.152
Alleged "[f]ailures to take administrative actions that were due"
74 The Claimants refer to the “ongoing failure to issue the environmental
permit or any administrative decision on the permit during or after 2013,
punctuated by what turned out to be pretextual TAC meetings in 2014 and
2015".153
75 However, the Ministry of Environment was under no obligation to issue
the environmental permit given that RMGC had not and still has not met
the requirements for the issuance of the permit.154 It was also within its
margin of discretion when deciding to continue the TAC process to give
RMGC an opportunity to meet those requirements.155
76 As stated above, the TAC meetings held in 2014 and 2015 were not
"pretextual",156 and the Claimants have not presented any evidence to
show that they were.
77 The Claimants also allege that the alleged “failure to issue the exploitation
licenses for Bucium or to take any decision on RMGC's license
applications" corroborates “the decision reached earlier by the
Government [the alleged 9 September 2013 “oral decree"] that these
Projects would not be done.”157
152 PHB2-Resp., 48 (para. 116); Rejoinder, 187 (para. 599), 200 (para. 641) and 204 (paras. ↩
654 and 656).
153 PHB4-Cl., 23 (para. 60) (emphasis added). ↩
154 Supra, para. 25; PHB2-Resp., 69 (para. 154). ↩
155 Tr. 2019, 2856:5-21 and 2629:22-2633:8 (Tofan). ↩
157 PHB4-Cl., 23 (paras. 61-62). ↩
[Page 32]
78 Both the premise and the conclusion are incorrect. First, the Claimants
have failed to show that NAMR did anything wrongful in relation to the
Bucium Applications.158
79 Second, the Claimants have provided no evidence that NAMR's conduct
has been influenced or interfered with by the Government.159 The
Claimants have failed to provide a shred of evidence to support their
allegations.
The issuance of the 2015 LHM
80 The Claimants only raise the 2015 LHM to set the stage for their
complaints regarding the UNESCO listing. Indeed, they admit that the
2015 LHM was not "the real blockage" and its adoption should not be
“seen as the date when the Project Rights were repudiated in breach of the
BITs".160
81 The Claimants suggest that the problem was rather the Ministry of
Culture's "continued failure to declassify the listed historical monuments
as required by law".161 The Respondent commented on the declassification
process in Section 2.2.2 above. In any event, the declassification process
can be initiated for Orlea before an ADC is obtained.
The Claimants' rights were unaffected by the UNESCO listing
82 The Claimants wrongly allege that, as per Romania's purported admission,
the submission of the UNESCO nomination file created a legal
impediment to the issuance of the building permit.162 The Respondent has
not made any such admission and would have had no basis to do so since
it has consistently noted that neither the 2017 submission nor the 2021
159 Rejoinder, 229 (paras. 722-723). ↩
160 PHB4-Cl., 24 (paras. 63-65). ↩
161 PHB4-Cl., 24 (para. 64). ↩
162 PHB4-Cl., 26 (para. 68). ↩
[Page 33]
listing impacted RMGC's ability to pursue and secure the building
permit.163
83 The Claimants' assertion that the UNESCO listing created a "legal
impediment to obtaining any construction permit" relies on political
statements, not on governmental decisions or Romanian law.164 As already
explained, the Project has always needed a declassification of the areas
listed as historical monuments; the UNESCO listing does not affect
RMGC's right to seek a declassification of those areas.165
84 The Claimants only have themselves to blame for RMGC not securing the
permits for the Project, whether it be the environmental permit or the
building permit. For instance, as at the time of the UNESCO submission
in 2017, RMGC still needed to secure permits and endorsements in
connection with water management, the PUZ, ADCs, and the surface rights
for the Project - as well as, most importantly, secure a social license.166
85 The UNESCO listing (on 27 July 2021) cannot amount to a breach because
it represents a decision and measure by UNESCO, not Romania. The
Claimants use this date purely for tactical reasons – in an attempt to inflate
their alleged losses – but it has no justification in international law. On the
Claimants' own case, any breach would have occurred on 4 January 2017
(i.e., the date on which Romania submitted the nomination file to
UNESCO). Indeed, according to the Claimants, “Romania triggered the
conservation requirements" for UNESCO sites as soon as Romania
submitted that file,167 not later.
163 The Claimants cite Rejoinder, 226 (para. 711); and Tr. 2019, 556:12-14, 557: 16-558:7 (R- ↩
opening). The Respondent explained that the issue of the effect of the UNESCO submission
was moot in circumstances where the nomination file had been referred back to Romania but
did not discuss the effect of the UNESCO protection regime as a matter of Romanian law.
164 PHB4-Cl., 26 (paras. 68, 72, and 73). ↩
165 Supra, para. 41; PHB3-Resp., 11 (Sections 2.2.4-2.2.5). ↩
166 Respondent's Opening 2020, 14. ↩
167 PHB4-Cl., 25 (paras. 66-67). ↩
[Page 34]
86 For the reasons set out in Section 2.3 above, the post-2013 events do not
constitute the basis of a breach but rather show the absence of any causal
link between the Claimants' alleged breaches and losses.
87 The Claimants' quantification of their second alternative claim also
imputes to Romania the decrease in value of the Project Rights stemming
from measures that are not internationally wrongful. The second
alternative claim presupposes that the Tribunal does not find any breach of
the BIT stemming from Romania's measures in 2013 but finds that
Romania's measures related to the UNESCO listing resulted in a breach of
the BIT on 27 July 2021.168 Yet the Claimants make no attempt whatsoever
to determine the alleged losses specifically caused by this latter breach (in
isolation of the alleged breach in 2013), assuming instead that the Tribunal
would use Gabriel Canada's overstated market capitalization as of 29 July
2011 as a starting point for an indexation calculation. Nevertheless, given
that the second alternative claim is based on the assumption that Romania's
measures as of September 2013 did not breach the BIT (and therefore were
not internationally wrongful), only the measures related to the UNESCO
listing itself can be considered for the purposes of assessing the alleged
losses stemming from this claim. Indeed, there is no causal link between
measures that predate the UNESCO listing process and the alleged losses
caused by this purported breach.
88 The Tribunal should accordingly dismiss the Claimants' second alternative
claim due to their failure to establish the causal link between the purported
breaches and the alleged losses.
168 PHB4-Cl., 21 (para. 53). ↩
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89 The Claimants' continuously shifting case on quantum demonstrates that
their claims are meritless. Their three alternative claims, all introduced
after the Respondent's Rejoinder, are inadmissible for the reasons
explained in the Respondent's post-hearing briefs.169
90 For both their first and second alternative claims, the Claimants argue that
the Tribunal should use an “indexing" approach, starting with a “last clean
date" of 29 July 2011 (or, in the alternative, 23 or 29 November 2011, or
31 January 2012)170 until the date of the alleged breach, then add a 35%
acquisition premium.171 The first and second alternative claims only differ
in the alleged date of breach, respectively 9 September 2013 and 27 July
2021.172
91 For the reasons set out below, the Tribunal cannot rely on the Claimants'
quantification of their first and second alternative claims.
92 For their first alternative claim, the Claimants accept that “compensation
would be due as of September 9, 2013 (with interest running from that
date), and the measure of compensation should be based on the fair market
value of the Project Rights on that date, assessed without the impacts of
169 PHB2-Resp., 85 (para. 181). ↩
170 PHB4-Cl., 29 (para. 82); PHB4-Cl., 2 (footnote 7). ↩
171 PHB4-Cl., 34 (para. 96). ↩
172 PHB4-Cl., 21 (para. 53). ↩
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the State's wrongful treatment of Gabriel's investment.”173 The Claimants
justify indexation by arguing that, even if measures prior to September
2013 are not part of a composite act culminating in the repudiation of the
Project Rights, they nevertheless constitute a breach of FET. According to
the Claimants, this prior breach requires the Tribunal to assess, as of 9
September 2013, the indexed value of Gabriel Canada relative to its value
on the date of the breach of FET.174
93 The Claimants raise similar arguments with respect to their second
alternative claim: starting in August 2011 (or alternatively November 2011
or January 2012), Romania's treatment of the Claimants' investment
allegedly breached its obligation to provide FET.175
94 In other words, the Claimants' case on quantum for both their first and
second alternative claims is predicated on the Tribunal finding that
Romania breached FET prior to the alleged repudiation of the Project
Rights. This is a transparent attempt to reverse-engineer a claim to leverage
Gabriel Canada's overstated market capitalization in 2011.
95 The Claimants' new case on FET fails. They do not allege a composite
breach of FET and therefore must identify the specific measure at issue,
and then prove that it caused a breach of FET. The Claimants fail to do so,
vaguely pointing to the “Government's sustained blocking of permitting
decisions and other unfair treatment detailed in prior pleadings, which ...
breached the State's obligation to accord fair and equitable treatment
beginning in August 2011 (and on November 23, 2011 for Gabriel
Canada)."176 However, the Claimants fail to explain how the political
statements made in August 2011 (the only “measures” that they allege at
the time - although political statements obviously cannot by any stretch of
imagination amount to “measures”), by themselves, amount to a breach of
FET. There is therefore no basis for using indexation as of 29 July 2011
(nor could there be given the political statements at issue were not
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wrongful,177 even assuming they constituted “measures” capable of breaching Romania’s international obligations178).
96 The Claimants similarly fail to establish that a breach of FET occurred on their alternate “last clean dates” of 23 and 29 November 2011, and 31 December 2012:
177 Rejoinder, 109 (Section 3.4.1). ↩
178 PHB2-Resp., 56 (para. 128). ↩
179 PHB4-Cl., 2 (footnote 7). ↩
180 Ibid. ↩
181 PHB1-Resp., 14 (Section 2.1.2). ↩
182 PHB4-Cl., 30 (para. 84). The Claimants also rely on the false claim that Minister Borbély confirmed in an interview dated 29 November 2011 that the decision on the environmental permit should have been made by 31 January 2012. In fact, Minister Borbély's statement regarding the TAC endorsement was expressly conditional: "How long do you estimate it will take before this technical endorsement is granted? Laszlo Borbely: It may be until the end of January, this depends on the colleagues within the commission. We might clarify these aspects by the end of January." C-633, 2. Indeed, RMGC did not - and still has not - met all of the requirements for the issuance of the environmental permit, including the lack of an urban certificate and a water management permit. Supra, para. 25. ↩
183 PHB4-Cl., 9 (Section 2.1). It was not legally possible for the Ministry of Environment to issue the environmental permit in January 2012, since RMGC did not (i) secure the endorsement of the Ministry of Culture until 2013, (ii) secure a waste management plan until 2013, (iii) have approved urban plans, (iv) have a valid urban certificate, (v) comply with the Water Framework directive, (vi) secure all requisite surface rights, (vii) provide information on reforestation, and (viii) address critical technical issues. Any one of these issues prevented the issuance of the ↩
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the Claimants’ argument that the Minister of Environment was legally obligated to take a decision by 12 August 2013.184 Both arguments rely on the opinion of Prof. Mihai,185 who has never been involved in an EIA Procedure and is not qualified to express any opinions on administrative law matters.186 His opinion was also contradicted by the evidence of Profs. Tofan and Dragoş, whose expertise in the area remains unquestioned.
97 The Claimants do not provide an unindexed valuation of the Project Rights as of their alleged dates of breach, thereby failing to meet their burden of proof. In the unlikely event that the Tribunal were to find the Project Rights to have been de facto expropriated, it should use Dr. Burrows’ DCF valuation of USD 156 million for the Project,187 [Redacted] 188 Although these valuations are as of 29 July 2011, they would not increase thereafter given the general market trends (as evidenced by the declines in the gold share value indexes) and the growing social opposition against the Project. Moreover, due to the Claimants’ belated and inadmissible claims, the Respondent has been unable to submit expert evidence establishing the FMV of the Project Rights on the dates of breach alleged in the Claimants’ first and second alternative claims. Accordingly, any uncertainty regarding the quantum of the first and second alternative claims must be resolved in favour of the Respondent.
Environment Permit and there is no basis to claim that all eight would have been resolved by January 2012.
184 PHB4-Cl., 22 (para. 58). ↩
185 During the hearing, Prof. Mihai exhibited a superficial understanding and recollection of his opinion and admitted that an unidentified team helped him draft his opinions. PHB1-Resp., 47 (para. 143). ↩
186 PHB1-Resp., 12 (para. 23). ↩
187 CRA Presentation, 30. ↩
188 CRA Presentation, 81. ↩
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98 Even assuming the Tribunal were inclined to rely on indexation, it should in any event disregard the Claimants’ calculations as they contain errors that grossly overstate the value of the alleged losses.
99 First, indexation is not appropriate in this case, as (i) Gabriel Canada’s market capitalization is not a valid proxy for the Claimants’ alleged losses since the Project Rights have not lost all value189 and the value of the Claimants’ shareholding in RMGC does not correspond to the value of the Project Rights;190 and (ii) the decrease in Gabriel Canada’s value between July 2011 and the date of the alleged repudiation of the Project Rights was not caused by Romania’s allegedly wrongful measures.191
100 Second, the Claimants’ use of indexation is methodologically unsound. The “Index Calculator” submitted as Exhibit C-2991 contains a methodological error. As the Tribunal will recall, Compass Lexecon uses a trailing 90-day volume-weighted average of Gabriel Canada’s share price to determine its public market capitalization:
“To smooth out any short-term volatility that Gabriel Canada’s stock might have exhibited in the period prior to the Valuation Date, we focus in our damages analysis on Gabriel Canada’s market capitalization in the 90 calendar days leading to, and including, the Valuation Date, which … averaged US$ 2,617 million.”192
101 In contrast, Exhibit C-2991 uses the unadjusted market capitalization based on the share value on the selected “last clean date” (USD 2,956 million on 29 July 2011) as a starting point for indexation, thereby incorporating volatility and overstating by more than USD 300 million Gabriel Canada’s market capitalization on the dates selected by the Claimants. This mistake, as well as the other errors described below, have
189 PHB1-Resp., 191 (Section 5.22). ↩
190 PHB1-Resp., 195 (Section 5.4.1.1). ↩
191 PHB2-Resp., 103 (Section 6.2.5). ↩
192 CL Report I, 26 (para. 45). ↩
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been corrected in the spreadsheet prepared by CRA, which is submitted as Exhibit CRA-307.
102 Third, the Claimants’ starting points for indexation (in July and November 2011, and January 2012) are not “last clean dates” and massively overstate the value of Gabriel Canada. Gabriel Canada’s market capitalization in July 2011 was grossly overstated, primarily due to a speculative gold bubble. [Redacted]
103 Assuming the Tribunal were to rely on indexation, the earliest starting point for indexation is the trailing 90-day volume-weighted average of Gabriel Canada’s market capitalization as of 3 July 2012, 90-days after the 4 April 2012 court decision which confirmed the annulment of the Roşia Montană Local Council’s attempt to retroactively re-approve the 2002 PUZ and PUG.194 The 4 April 2012 decision, which granted a claim brought by several NGOs (including Alburnus Maior) and thus was a consequence of the social opposition to the Project, caused Gabriel Canada’s share price to drop by 72.4% in a little more than a month. [Redacted] 195 Using Compass Lexecon’s methodology, the 90-day volume-weighted average of Gabriel Canada’s share price accounts for the market volatility that followed the 4 April 2012 decision. [Redacted] 196
193 PHB1-Resp., 195 (Sections 5.4.1.2 and 5.4.1.3). ↩
194 R-207. ↩
195 PHB2-Resp., 103 (Section 6.2.5). ↩
196 PHB1-Resp., 192 (Section 5.4.1.2). ↩
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Accordingly, the Tribunal should make a further adjustment to reflect the impact of these factors.197
104 Fourth, the S&P/TSX index is not appropriate for valuing the Project Rights. The Claimants misrepresent the evidence, alleging that Dr. Burrows “maintains that it would be appropriate to use the average of the S&P/TSX index and the MVIS index” to value Gabriel Canada.198 Dr. Burrows unequivocally stated that the “MVIS Index is the correct index for extrapolating the market capitalization of the Company from 2011 to 2013.”199 The Claimants disregard Dr. Burrows’ explanation that using the average of the S&P/TSX index and the MVIS index would only be appropriate if one accepted Gabriel Canada’s inflated market capitalization as of July 2011:
“In the TSX Global Gold Index, as of 2011, the companies had an average value of $4.494 billion; the MVIS Index--the MVIS Index companies had an average value of $0.793 billion; Gabriel’s 90-day average market cap on July 29, 2011, which we of course argue was inflated, was $2.617 billion, pretty much exactly in between the MVIS and TSX Indexes.
[Redacted]”200
105 Fifth, the Claimants fail to subtract the value of Gabriel Canada’s net assets from its market capitalization on the “last clean date”. To value the Project Rights, Compass Lexecon subtracted Gabriel Canada’s cash and cash equivalents from its market capitalization on the Valuation Date.201 The Claimants now abandon this methodology, arguing that,
197 The Respondent is not in a position to quantify the extent of this overstatement since it has not been afforded the opportunity to produce evidence on this point. ↩
198 PHB4-Cl., 31 (para. 85(b)). ↩
199 CRA Presentation, 56. ↩
200 [Redacted] ↩
201 CL Report I, 6 (para. 6). ↩
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because they spent cash to maintain the Project Rights from 2011 to 2016, cash on hand should not be deducted from valuation dates after 2016.202 They also deduct only USD 60 million from Gabriel Canada’s indexed market capitalization as of September 2013, because “Gabriel had invested a further US$ 123 million into RMGC to maintain the Project Rights.”203
106 The Claimants’ argument is flawed. The Claimants provide no evidence that the payments to RMGC were in fact spent on maintaining the Project Rights.204 Even if such expenditures were evidenced, they remain irrelevant to the assessment of the Project Rights’ FMV. Compass Lexecon deducted cash and cash equivalents held by Gabriel Canada because they were separate from the Project Rights.205 Finally, by deducting actual cash and cash equivalents held on the date of valuation from an indexed market capitalization of Gabriel Canada on that date, the Claimants improperly mix hypothetical and actual values.
107 If an indexed value of Gabriel Canada is a valid proxy for the Project Rights (quod non), then at a minimum all net assets (excluding mineral properties) must be deducted from its market capitalization. As both CRA and Compass Lexecon confirm, any award should deduct the value of the assets not expropriated, as only the mineral rights were allegedly expropriated.206 All other assets (not just cash) must be deducted from the market capitalization to yield a market estimate of the value of the mineral rights. However, deducting total net assets (excluding mineral properties) on Gabriel’s balance sheet would not account for the residual value of RMGC’s land – which on the Claimants’ own case has not been expropriated and which value is included in Gabriel Canada’s mineral
202 PHB4-Cl., 34 (para. 95). ↩
203 PHB4-Cl., 37 (para. 102(a)). ↩
204 PHB4-Cl., 37 (footnote 181). This argument is especially egregious given Claimants’ opposition to Romania’s document production request related to these sunk costs, which was denied by the Tribunal for lack of relevance and materiality. PHB2-Resp., 108 (para. 219). ↩
205 CL Report I, 27 (para. 46). ↩
206 Tr. 2020, 1343:7-15 (Burrows); Tr. 2020, 1165:1-15 (Spiller). ↩
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properties207 – nor any other value that investors may have placed on Gabriel Canada in addition to the Project Rights.208
108 An indexed estimate of the value of the Project Rights at a later date (e.g., 9 September 2013) should start with the value of the Project Rights at the earlier date (e.g., 3 July 2012). As noted above, the Parties’ experts agree that Gabriel Canada’s market capitalization is greater than the value of the Project Rights, since the former includes the value of the net assets that are not alleged to have been expropriated. To avoid mixing “actual” and “hypothetical” values, the net assets (excluding mineral properties) must be deducted on the “last clean date”, thereby removing these assets from the equation during indexation. The indexation would then get applied only to the value of the Project Rights. The application of indexation to market capitalization results in indexation of all assets (including the un-expropriated net assets), which makes no sense.
109 Sixth, there is no basis whatsoever for applying an acquisition premium. Acquisition premiums have never been awarded in international investment arbitration as they are not a standard feature of valuation analysis, and are only justified when there is additional value to a buyer.209 There is no legal or factual justification to incorporate them here.
110 Each of these issues have been corrected in the Excel spreadsheet produced by CRA, Exhibit CRA-307. The “Summary_1stAltClaim” and “Summary_2ndAltClaim” tabs, provide an overview and a direct line-by-line comparison of the Parties’ respective scenarios related to the Claimants’ first and second alternative claims.
111 The full functionality of the Compass Lexecon’s spreadsheet is reproduced in the “Index Calculator” tab, with additional options allowing for the correction of the Claimants’ erroneous methodology. To use the Index Calculator of Exhibit CRA-307, the Tribunal should click on the “Index Calculator” tab, and select:
207 CRA Report II, 19 (paras. 47-48). ↩
208 PHB2-Resp., 88 (para. 188). ↩
209 PHB1-Resp., 214 (Section 5.4.3). ↩
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112 The result is automatically calculated once all options are selected.
113 In the “GBU Balance Sheet Items” tab, CRA provides quarterly Gabriel Canada balance sheet data by line item for the period from 31 March 2011 through 31 December 2021. These data are taken from Gabriel Canada’s public disclosures, and supplement data from 2011 to 2017 already in the record (quarterly data for Q1-Q2 2011 and Q1-Q3 2017, and annual data for 2011-2016).210 These data are used to compute data presented in the “GBU Public Market Cap” tab on “Cash and Equivalents” and “Net Asset, excl. Mineral Properties”.
114 In the “GBU Public Market Cap” tab, CRA presents quarterly data for the period from 31 March 2011 through 31 December 2021 for Gabriel Canada Cash and Equivalents, Net Assets (excluding mineral properties), and Gabriel Canada market capitalization (spot and trailing 90-day volume-weighted average). This tab also presents data on Gabriel Canada’s public market capitalization, less cash and equivalents (for both the spot market capitalization and the trailing 90-day volume-weighted average market capitalization), and Gabriel Canada’s public market
210 See Exhibits CRA-43 through CRA-53. ↩
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capitalization, less net assets, excluding mineral properties (for both the spot market capitalization and the trailing 90-day volume-weighted average market capitalization).
115 In the “CAD-USD FX” tab, CRA presents data on the Canadian dollar-USD exchange rate for each business day from 1 January 1996 through 31 August 2022. These data include data up to 12 October 2017 already in the record,211 supplemented by data from Bloomberg for dates after 12 October 2017.
116 In the “90-day Vol. W. Avg. Mkt Cap” tab, CRA reproduces data already in the record on Gabriel Canada’s public market capitalization and traded volume for every trading day from 1 January 2000 through 30 April 2022.212 These data are used to calculate the “GBU trailing 90-day volume-weighted average market cap.”
117 As explained above, the Claimants’ alleged losses for their first alternative claim are USD 156 million for the Project, 213 [Redacted] 214
118 Assuming the Tribunal were to accept the use of indexation of the value of the Project Rights based on public market capitalization, the Claimants’ alleged losses, using a trailing 90-day volume-weighted average of Gabriel Canada’s market capitalization on 3 July 2012 as a starting point (minus the USD 138 million in net assets held on that date) adjusted by the MVIS index as of 9 September 2013, would amount to USD 445 million.
211 See CRA-10. ↩
212 See C-2991, tab “C-2860.04”. ↩
213 CRA Presentation, 30. ↩
214 CRA Presentation, 81. ↩
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Claimants’ Alleged Losses for First Alternative Claim (if indexation accepted)
| Trailing 90-day Vol. Weighted Avg. Market Cap as of 03-Jul-12 | USD 855 million |
| - Less: Net Assets, excl. Mineral Properties, per GBU Balance Sheet as of 03-Jul-12 | (USD 138 million) |
| Value of Project Rights as of 03-Jul-12 | USD 717 million |
| Value of Project Rights Adjusted by MVIS Global Junior Gold Mining Index as of 09-Sep-13 (indexed relative to 03-Jul-12) | USD 445 million |
119 The Claimants’ alleged losses are the same as for their first alternative claim, USD 156 million for the Project, [Redacted]
120 Using the same methodology as above, but with a date of breach of 4 January 2017 (the date on which Romania submitted the nomination file to UNESCO),215 the alleged losses for the Claimants’ second alternative would be USD 347 million if indexation of public market capitalization is accepted.
Claimants’ Alleged Losses for Second Alternative Claim (if indexation accepted)
| Trailing 90-day Vol. Weighted Avg. Market Cap as of 03-Jul-12 | USD 855 million |
| - Less: Net Assets, excl. Mineral Properties, per GBU Balance Sheet as of 03-Jul-12 | (USD 138 million) |
| Value of Project Rights as of 03-Jul-12 | USD 717 million |
| Value of Project Rights Adjusted by MVIS Global Junior Gold Mining Index as of 04-Jan-17 (indexed relative to 03-Jul-12) | USD 347 million |
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Respectfully submitted,
19 September 2022
For and on behalf of Romania
Signature |
Signature |
LALIVE |
LDDP |
|
Veijo Heiskanen |
Crenguţa Leaua |