Reproduced from www.worldbank.org/icsid with permission of ICSID.
1 This submission provides the Respondent's replies to the Tribunal's questions in Procedural Order No. 27 and the Claimants' answers to those questions, submitted on 11 May 2020.
2 In Procedural Order No. 27, the Tribunal sought clarifications from the Claimants regarding fundamental aspects of their claims, including the precise measures that the Claimants complain of, the timing and date of the alleged breach, and the timing of the Claimants' alleged losses.
3 More than five months after the main hearing in this case, the Claimants' case remains as unclear and confused as it was in their Memorial, filed some three years ago. The Claimants have thus not only failed to meet their burden of proof; they have also failed to meet their burden of pleading.
4 After having repeatedly refused at the Hearing to identify the date on which the alleged treaty breaches were committed, the Claimants have finally attempted to identify that date. They now argue, for the first time, that the alleged treaty breaches occurred "on or about 9 September 2013" - a date that they had only mentioned in passing in their Memorial and Reply.
5 The Claimants' belated attempt to restate their case calls for three preliminary comments.
6 First, the Claimants do not explain the implications of their newly chosen date - 9 September 2013 - on their jurisdictional case. The Respondent reserves the right to address these issues in its post-hearing submission.
7 Second, the Claimants now effectively acknowledge that they have no claim for a treaty breach prior to 9 September 2013, and that therefore their complaints about events that took place in 2011 and 2012 are irrelevant to their case.
8 Third, despite this fundamental change in their case theory, the Claimants continue to rely on a valuation date - in July 2011 - that is more than two years before the alleged treaty breaches were purportedly committed (in September 2013). This is untenable.
9 The scope of this submission is determined by Procedural Order No. 27. As recalled above, the Tribunal's questions in Procedural Order No. 27 were directed to the Claimants, which were asked to respond first. The Respondent was asked in turn to comment on the Claimants' answers. In this submission, the Respondent therefore only addresses the timing of the alleged breaches and losses, as well as the legal characterization of its conduct, in response to the Claimants' answers. The Respondent has already demonstrated at length why the claims should, more generally, be dismissed.
10 In Procedural Order No. 27, the Tribunal also granted the Respondent's request, made in its letter dated 9 January 2020, for a page limit for these submissions, to ensure that they responded to the Tribunal's questions and were not inappropriately converted into full-fledged post-hearing submissions. The Tribunal also made clear that there would be no post- hearing briefs at this stage of the proceedings.4
11 The Claimants have disregarded the Tribunal's directions and for all intents and purposes submitted a post-hearing brief which not only fails to answer the Tribunal's questions, but also selectively summarizes hearing testimony that is not directly relevant to the Tribunal's questions.
12 In this submission, the Respondent will address only those arguments on the part of the Claimants that are relevant to the Tribunal's questions. The Respondent reserves the right to respond further to the Claimants' answers in oral closing statements or written post-hearing submissions.
2 QUESTION A
2.1 Romania Did Not Breach Its Obligations at any Point in Time, Including "on or about" 9 September 2013
2.1.1 There Could Not Have Been an Expropriation on 9 September 2013
2.1.2 There Could Not Have Been a Breach of FET on 9 September 2013
2.1.3 There Could Not Have Been a Breach of the Other Six Obligations on 9 September 2013
2.2 The Claimants Do Not Identify a Precise Measure Attributable to Respondent that Resulted in an Alleged Breach on 9 September 2013
2.2.1 The Claimants Do Not Identify a Precise Measure Attributable to Romania on 9 September 2013
2.2.2 There Was No Expropriation as at 9 September 2013
18.104.22.168 The Government's Alleged Efforts to Increase the State's Benefits from the Project Did Not Impact the Claimants' Investments
The Period August 2011-February 2012
The Period February 2012-September 2013
22.214.171.124 The Government's Submission of the Roia Montan Law to Parliament Did Not Impact the Claimants' Investments
Romania Did Not Condition the Issuance of the Environmental Permit on Parliament's Approval of the Roia Montan Law
The Purpose of the "Parliamentary Route" Was to Facilitate the Project
The Roia Montan Law Was Not Imposed on the Claimants
126.96.36.199 Parliament's Rejection of the Roia Montan Law Did Not Adversely Affect the Claimants' Investments
2.2.3 There Was No Breach of FET as at 9 September 2013
188.8.131.52 There Had Been No Political Interference with the EIA Review Process as at 9 September 2013
184.108.40.206 RMGC Had Not Met the Requirements for the Environmental Permit as at 9 September 2013
220.127.116.11 The Claimants' Allegations that the EIA Review Process Was Reaching Its Conclusion with the November 2011 TAC Meeting Are Without Merit
18.104.22.168 The Claimants' Allegation that the Ministry of Environment Failed to Allow Permitting to Advance After the 29 November 2011 TAC Meeting Is Without Merit
The 29 November 2011 TAC Meeting
The Aftermath of the 29 November 2011 TAC Meeting
22.214.171.124 The TAC and the Ministry of Environment Have Discretion in their Decision-Making Process
The TAC and the Ministry of Environment's Discretion in Requesting that RMGC Meet Certain Requirements Prior to Issuance of the Environmental Permit
The TAC and the Ministry of Environment's Discretion in Drafting and Issuing the Environmental Permit, Including the Attached Conditions and Mitigation Measures
The Ministry of Environment's Discretion and, in Turn, the Government's Discretion in Deciding Whether to Issue the Environmental Permit
3 QUESTION B
3.1 The Claimants Do Not Allege that Their Purported Losses Occurred (or Began to Occur) at the Time of the Alleged Breach
3.2 Losses Should Be Quantified on the Date upon Which a Breach Is Alleged to Have Been Consummated
3.3 The Point in Time When Losses Occur Is Relevant to Establish Liability
4 QUESTION C
4.1 There Cannot Be a Composite Act Under Article 15 of the ILC Articles if There Is No Systematic State Policy or Practice
4.2 The Conduct Attributed to Romania Does Not Involve a Systematic State Policy or Practice and Therefore Cannot Be Characterized as a Composite Act
5 QUESTION D
5.1 There Was Strong Social Opposition to the Project
5.2 The Relevance of the Negative Public Opinion of the Project to the Tribunal's Assessment of Liability
5.3 The Relevance of the Negative Public Opinion of the Project to the Tribunal's Assessment of Causation
5.4 The Relevance of the Negative Public Opinion of the Project to the Tribunal's Assessment of Damages
6 QUESTION E
7 QUESTION F