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Gabriel Resources Limited and Gabriel Resources (Jersey) Limited v Romania, Procedural Order No 6, ICSID Case No ARB/15/31, IIC 1267 (2017), 29th August 2017, World Bank; International Centre for Settlement of Investment Disputes [ICSID]

Parties:
Gabriel Resources Ltd, Gabriel Resources (Jersey) Ltd
Romania
Judges/Arbitrators:
Teresa Cheng (President); Horacio A Grigera Naón (Claimant appointment); Zachary Douglas (Respondent appointment)
Procedural Stage:
Procedural Order No 6
Previous Procedural Stage(s):
Procedural Order No 1; Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No ARB/15/31; IIC 887 (2016), 26 August 2016Procedural Order No 2; Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No ARB/15/31; 20 October 2016Procedural Order No 3; Gabriel Resources Ltd and Gabriel Claimant’s Request for Emergency Temporary Provisional Measures; Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No ARB/15/31; IIC 951 (2016), 21 October 2016Resources (Jersey) Ltd v Romania, ICSID Case No ARB/15/31; IIC 888 (2016), 14 November 2016Procedural Order No 4; Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No ARB/15/31; IIC 952 (2017), 10 January 2017Procedural Order No 5; Gabriel Resources Ltd and Gabriel Resources (Jersey) Ltd v Romania, ICSID Case No ARB/15/31; IIC 977 (2017), 16 June 2017
Governing Law:
Agreement between the Government of Canada and the Government of Romania for the Promotion and Reciprocal Protection of Investments, signed 8 May 2009, entered into force 23 November 2011 (‘Canada-Romania BIT’)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Romania for the Promotion and Reciprocal Protection of Investments, signed 13 July 1995, entered into force 10 January 1996 (extended to the Bailiwick of Jersey by Exchange of Notes 1999) (‘United Kingdom-Romania BIT’)
International law
Subject(s):
Procedural orders — Confidentiality

Oxford Reports on International Investment Claims is edited by:

Ian Laird, Crowell & Moring LLP, Washington, DC

Decision - full text

Original Source PDF

Paragraph numbers have been added to this decision by OUP

Having considered:

  • •  Procedural Order No. 3 dated November 14, 2016 (the “Confidentiality Order”).

  • •  The submissions filed by the Parties on January 10 and 17, 2017 in relation to the designation of confidential information and documents.

  • •  The Tribunal’s letter of May 10, 2017 in which the Tribunal provided its views and directions regarding the designation of confidential information and documents and invited the Parties to review their positions based on such directions and revert by June 1, 2017.

  • •  The Parties’ communications of June 1, 2017 informing the Tribunal of the agreements reached with respect to the redaction of their submissions, Tribunal decisions and hearing transcript.

  • •  The Tribunal’s letter of June 2, 2017 inviting Respondent to either (i) confirm that it no longer proposed to reclassify as non-confidential the remaining disputed confidentiality designations of witness statements and factual exhibits; or, if that was not the case, (ii) to set its arguments with regard to each one of them in the table included in Annex 1(B) of the Tribunal’s May 10, 2017 letter, no later than June 23, 2017.

  • •  Respondent’s letter of June 23, 2017, in which it maintained its request that certain exhibits and portions of witness statements be reclassified as nonconfidential and submitted a table providing the reasons on a document-bydocument basis.

  • •  Claimants’ letter of July 14, 2017, with which they submitted a table with their response to Respondent’s request to reclassify as non-confidential certain exhibits and portions of witness statements.

And having deliberated

The Arbitral Tribunal Hereby Orders as follow:

The Respondent’s request to reclassify certain factual exhibits and witness statements is decided as indicated in the “Tribunal’s Ruling” column in the Confidentiality Schedule attached as Annex A.

On behalf of the Tribunal,

Ms. Teresa Cheng SC

President of the Tribunal

Date: August 29, 2017

Annex A —  Confidentiality Schedule Second Category of Documents Witness Statements, Expert Reports and Exhibits (PO3 Section 2.6)

Item No.

Document

Proposed no-confidentialit y (Page and paragraph numbers, Phrases to be included if appropriate)

Applicant’s Reasons (Reference to page and paragraphs in 10 January and 17 January letters only)

Responding Party’s Response (Reference to page and paragraphs in 10 January and 17 January letters only)

Tribunal’s Ruling

Claimants’ Exhibits

1.

C-1: Agreement between the Government of Canada and the Government of Romania for the Promotion and Reciprocal Protection of Investments, done at Bucharest on May 8, 2009, entered into force on Nov. 23, 2011 (as corrected by an Exchange of Notes dated Apr. 12 and 29, 2011)

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, this document is in the public domain.1

Claimants agree this exhibit is not confidential.

No order

2.

C-2: Materials evidencing the Canadian BITs entry into force

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

3.

C-3: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Romania for the Promotion and Reciprocal Protection of Investments, done at London on July 13, 1995, entered into force on Jan. 10, 1996, UK Treaty Series No. 84 (1996); Exchange of Notes relating to the UK BIT, UK Treaty Series No. 54 (1999), indicating that the UK BIT was extended to the Bailiwick of Jersey effective Mar. 22, 1999

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

4.

C-4: Materials evidencing the UK BITs entry into force dated 23 April 1995

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

5.

C-5: Gabriel’s Consents and Authorizations to Commence Arbitration of Bilateral Investment Treaty Dispute dated 15 July 2015

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

6.

C-6: Gabriel Canada’s Waiver in Support of Its Request for Arbitration dated 17 July 2015

Entire document

This document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Claimants agree this exhibit is not confidential.

No order

7.

C-7: Powers of Attorney Authorizing Gabriel’s Counsel dated 15 July 2015

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, this information is in the public domain.

Claimants agree this exhibit is not confidential.

No order

8.

C-8: Letter from Gabriel addressed to the President of Romania and to the Prime Minister of Romania dated 20 January 2015

Entire document

See reasons provided for Item 7 above.

Claimants agree this exhibit is not confidential.

No order

9.

C-9: Letter from Gabriel addressed to the President of Romania and to the Prime Minister of Romania dated and delivered on Apr. 22, 2015

Entire document

See reasons provided for Item 7 above.

Claimants agree this exhibit is not confidential.

No order

10.

C-10: Government Decision No. 781/2002 on the Protection of Work Secret Information, published in Official Gazette Part I, No. 575, dated Aug. 5, 2002

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

11.

C-11: Mining Law No. 85/2003, published in Official Gazette Part I, No. 197, dated Mar. 27, 2003

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

12.

C-12: Government Decision No. 1208/2003 for the Approval of the Norms for the Implementation of the Mining Law No. 85/2003, published in Official Gazette Part I, No. 772, dated Nov. 4, 2003

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

13.

C-13: NAMR Order No. 202/2003 Approving the List of Classified Information (Work Secret) within NAMR dated Nov. 14, 2003

Entire document

See reasons provided for Item 7 above.

Claimants agree this exhibit is not confidential.

No order

14.

C-14: Government Decision No. 585/2002 for the Approval of the National Standards for the Protection of Classified Information in Romania, published in Official Gazette Part I, No. 485, dated July 5, 2002, as last consolidated on 24 March 2005

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

15.

C-15: NAMR Letter No. 1462 to RMGC dated 8 August 2008

Entire document

See reasons provided for Item 6 above.

Furthermore, we note the Tribunal’s inclination to find that this exhibit and other “correspondence and meeting minutes related to the declassification of Documents” is not confidential (Tribunal’s letter of 10 May 2017, p. 7)

Claimants do not object to Respondent’s view.

However, this document does not relate to the recent declassification of Documents.

Not Confidential

16.

C-16: NAMR Letter No. 2633 to RMGC dated 30 September 2010

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

However, this document does not relate to the recent declassification of Documents.

Not Confidential

17.

C-17: NAMR Letter No. 5586 to RMGC dated 1 November 2012

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

However, this document does not relate to the recent declassification of Documents.

Not Confidential

18.

C-18: NAMR Order No. 2/2013 on the Amendment of the Annex to Order No. 202/2003 Approving the List of Classified Information (Work Secret) within NAMR and the Declassification of Documents Eliminated from the Initial List dated Jan. 8, 2013

Entire document

See reasons provided for Item 7 above.

Furthermore, we note the Tribunal’s inclination to find that another NAMR Order relating to the declassification of documents (Exhibit R-15) is not confidential. (Tribunal’s letter of 10 May 2017, p. 7)

Claimants agree this exhibit is not confidential.

No order

19.

C-19: NAMR Permit for Temporary Access to Work Secret Information dated 17 June 2014

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view with regard to the document generally, but propose to resubmit the exhibit with confidential information in the document redacted, including [undisclosed] passport number.

Claimants also note that this document does not relate to the recent declassification of Documents.

The document is not confidential but the information identified by the Claimants in their response shall be redacted

20.

C-20 (resubmitted): Updated RMGC Registry dated 22 July 2016

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, the Parties had agreed that information relating to the Claimant’s First Request for Provisional Measures was not confidential (See Respondent’s 10 January 2017 letter, p. 1, second para.)

Third, we note the Tribunal’s inclination to find that the Storage Contract is not confidential and this exhibit is an annex to the Storage Contract. (Tribunal’s letter of 10 May 2017, p. 7)

Claimants do not object to Respondent’s view.

Not Confidential

21.

C-21: Addendum No. 2 to Contract No. 27 for the Preservation, Storage and Protection of Data and information Included in the National Geologic Fund and/or the National Fund of Mineral Resources / Reserves dated May 8, 2015

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, the Parties had agreed that information relating to the Claimant’s First Request for Provisional Measures was not confidential (See Respondent’s10 January 2017 letter, p. 1, second para.)

Third, we note the Tribunal’s inclination to find that this document is not confidential.

Claimants do not object to Respondent’s view.

Not Confidential

22.

C-22: Letter from Gabriel Resources Ltd. to NAMR dated 2 October 2015

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

23.

C-23: Letter from RMGC to NAMR dated 30 October 2015

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

24.

C-24: Law No. 182/2002 on the Protection of Classified Information, published in Official Gazette Part I, No. 248, dated Apr. 12, 2002, as last consolidated Feb. 18, 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

25.

C-25: Government Decision No. 1349/2002 on the Collection, Transportation, Distribution and Protection of Classified Correspondence on Romanian Territory, published in Official Gazette Part I, No. 909, dated Dec. 13, 2002, as last consolidated on Feb. 22, 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

26.

C-27: RMGC — Press Release

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

27.

C-28: Law No. 207/2015 on the Tax Procedure Code, published in the Official Gazette Part I, No. 547, as last consolidated on July 14, 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

28.

C-28 (as resubmitted): Law No. 207/2015 on the Tax Procedure Code, published in the Official Gazette Part I, No. 547, as last consolidated on July 14, 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

29.

C-33: Letter from Respondent’s counsel to ICSID Secretariat dated 25 October 2015

Entire document

See reasons provided for Item 7 above.

Furthermore, we note the Tribunal’s inclination to find that this document is not confidential. (Tribunal’s letter of 10 May 2017, p. 7)

Claimants agree this exhibit is not confidential.

No order

30.

C-45: Law No. 85/2014 on Insolvency Prevention Measures and Insolvency, published in the Official Gazette Part I, No. 466, as last consolidated on July 14, 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

31.

C-50: “Discretion and Its Limits in Tax Law”, by Tanti Anghel, Consultant Fiscal journal edited by the Romanian Fiscal Consultants Chamber, Year VIII. n. 49, Mar./Apr. 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

32.

C-51: Excerpts of Romanian Constitution

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

33.

C-52: Excerpts of Law No. 24/2000 on the Rules of Legislative Drafting

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

34.

C-53: NAMR Order No. 80/2004 to change the classification of class of certain information rated state secret

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

35.

C-54: NAMR Letter No. 2010 to Romanian Parliament dated 14 September 2007

Entire document

See reasons provided for Item 7 above.

Furthermore, we note the Tribunal’s inclination to find that this document is not confidential. (Tribunal’s letter of 10 May 2017, p. 7)

Claimants do not object to Respondent’s view. Claimants also note that this document does not relate to the recent declassification of Documents.

Not Confidential

36.

C-55: RMGC Letter No. 54042 to Minvest dated 6 October 2015

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

37.

C-57: Rosiamin S.A. Letter No. 346 to RMGC dated 9 October 2015

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

38.

C-60: NAMR Letter No. 6471 to RMGC dated 23 June 2016

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, the Parties had agreed that information relating to the Claimant’s First Request for Provisional Measures was not confidential (See Respondent’s 10 January 2017 letter, p. 1, second para.)

Third, we note the Tribunal’s inclination to find that correspondence, such as this document, relating to the declassification of documents as well as the Storage Contract are not confidential (Tribunal’s letter of 10 May 2017, p. 7).

Claimants do not object to Respondent’s view.

Not Confidential

39.

C-61: NAMR Letter No. 7283 to RMGC dated 14 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

40.

C-62: RMGC Letter No. 56623 to NAMR submitting the updated list of classified documents held by RMGC dated 21 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

41.

C-63: NAMR Letter No. 7610 to RMGC dated 22 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

42.

C-64: NAMR Letter No. 7611 to RMGC dated 22 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

43.

C-65: RMGC Letter No. 56646 to NAMR dated 26 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

44.

C-66: NAMR Letter No. 7783 to RMGC dated 28 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

45.

C-67: NAMR Letter No. 7808 to RMGC dated 29 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

46.

C-68: NAMR Order No. 155 of 29 July 2016 with cover letter NAMR Letter No. 7864 dated 1 August 2016

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, the Parties had agreed that information relating to the Claimant’s First Request for Provisional Measures was not confidential (See Respondent’s 10 January 2017 letter, p. 1, second para.)

Third, we note the Tribunal’s inclination to find that Exhibit R-15, which contains the same NAMR Order, is not confidential (Tribunal’s letter of 10 May 2017, p. 7).

Claimants do not object to Respondent’s view.

Not Confidential

47.

C-69: RMGC Letter No. 56732 to NAMR dated 4 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

48.

C-70: RMGC Letter No. 56733 to NAMR dated 4 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

49.

C-71: NAMR Letter No. 8001 to RMGC dated 4 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

50.

C-72: NAMR Letter No. 8002 to RMGC dated 4 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

51.

C-73: NAMR Letter No. 8003 to RMGC dated 4 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

52.

C-74: RMGC Decision No. 56742 regarding declassification dated 5 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

53.

C-75: RMGC Letter No. 56758 to Minvest dated 9 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

54.

C-76: RMGC Letter No. 56777 to NAMR attaching list of documents classified by RMGC dated 11 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

55.

C-77: RMGC Letter No. 56778 to NAMR attaching lists of documents classified by Cepromin, Minvest, and Ipromin dated 11 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

56.

C-78: RMGC Letter No. 56779 to NAMR dated 11 August 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

57.

C-80: RMGC Classified Information Registry as of July 2016 color-coded colorcoded to show declassification status

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, the Parties had agreed that information relating to the Claimant’s First Request for Provisional Measures was not confidential (See Respondent’s 10 January 2017 letter, p. 1, second para.)

Third, we note the Tribunal’s inclination to find that the Storage Contract and its amendments are not confidential. (Tribunal’s letter of 10 May 2017, p. 7) This document is an annotated version of the annex to the Storage Contract.

Claimants do not object to Respondent’s view.

Not Confidential

58.

C-81: RMGC Letter No. 56647 to NAMR dated 26 July 2016

Entire document

See reasons provided for Item 38 above.

Claimants do not object to Respondent’s view.

Not Confidential

59.

C-84: Excerpts of Law 31/1990, as amended

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

60.

C-85: Denmark-Russia BIT dated 4 December 1997

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

61.

C-88: RMGC Extraordinary General Meeting of Shareholders Resolution dated 13 December 2004

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, this document is in the public domain.

Pursuant to Romanian corporate law (Law No. 31/1990), this resolution was published in the Official Gazette.2

Claimants agree this exhibit is not confidential.

No order

62.

C-89: RMGC Extraordinary General Meeting of Shareholders Resolution dated 16 October 2009

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, this document is in the public domain.

Pursuant to Romanian corporate law (Law No. 31/1990), this resolution was published in the Official Gazette.3

Claimants agree this exhibit is not confidential.

No order

63.

C-91: Loan Agreement between Gabriel Jersey and Minvest dated 16 December 2009

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential because it was submitted to the Romanian Trade Registry and thus is in the public domain.

The re-publication of this document on the scribd website is not relevant to this conclusion.

No order

64.

C-92: RMGC Extraordinary General Meeting of Shareholders Resolution No. 1 dated 13 October 2011

Entire document

See reasons provided for Item 62 above.

Claimants agree this exhibit is not confidential.

No order

65.

C-93: RMGC Extraordinary General Meeting of Shareholders Resolution No. 1 dated 6 September 2012

Entire document

See reasons provided for Item 62 above.

Claimants agree this exhibit is not confidential.

No order

66.

C-94: Substantiation Note to Government Decision 275/2013 dated 15 May 2013

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

67.

C-95: Government Decision 275/2013 on the Approval of Measures for the Reorganization by Partial Division of the National Company of Copper, Gold and Iron “Minvest” — S.A. Deva and on the Establishment of “Minvest Roşia Montană” — S.A. dated 29 May 2013

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

68.

C-96: Government Emergency Ordinance No. 74/2013 on Certain Measures on the Improvement and Reorganization of the Activity of ANAF dated 29 June 2013

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

69.

C-98: Senate Letter No. L.475/2013 to Chamber of Deputies dated 19 October 2013

Entire document

See reasons provided for Item 1 above.

This document is publicly available at: https://www.senat.ro/legis/PDF/2013/13L475AM.pdf

Claimants agree this exhibit is not confidential.

No order

70.

C-99: [undisclosed]

Entire document

See reasons provided for Item 7 above.

Claimants disagree and consider this document to be confidential.

First, this document contains “confidential business information” under Article 1.1 of PO3. (See Claimants’ 10 January 2017 letter, p. 3, paras. 1–2; Claimants’ 17 January 2017 letter, pp. 6–7.)

Second, such information is “sensitive in the commercial context.” (See Tribunal’s 10 May 2017 letter, para. 21.)

Third, we note the Tribunal’s inclination to find that similar correspondence [undisclosed] needs to be confidential. (See Tribunal’s letter of 10 May 2017, p. 7 (citing C-97, C-103, and C-113).)

Confidentiality maintained. Document contains confidential business information and hence within Article 1.1 of PO3

71.

C-100: [undisclosed]

Entire document

See reasons provided for Item 7 above.

Claimants disagree and consider this document to be confidential.

See reasons provided for Item 70 above.

Confidentiality maintained. Document contains confidential business information and hence within Article 1.1 of PO3

72.

C-101: [undisclosed]

Entire document

See reasons provided for Item 7 above.

Claimants disagree and consider this document to be confidential.

See reasons provided for Item 70 above.

Confidentiality maintained. Document contains confidential business information and hence within Article 1.1 of PO3

73.

C-102: RMGC Extraordinary General Meeting of Shareholders Resolution dated 30 December 2013

Entire document

See reasons provided for Item 62 above.

Claimants agree this exhibit is not confidential.

No order

74.

C-104: Agreement for the free assignment of a share stake in Roşia Montană Gold Corporation S.A. dated 17 January 2014

Entire document

See reasons provided for Item 7 above.

Claimants agree this exhibit is not confidential because it was submitted to the Romanian Trade Registry and thus is in the public domain.

No order

75.

C-108: Chamber of Deputies Letter to Senate dated 4 June 2014

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

76.

C-109: [undisclosed]

Entire document

See reasons provided for Item 6 above.

Claimants disagree and consider this document to be confidential.

See reasons provided for Item 70 above.

Confidentiality maintained. Document contains confidential business information and hence within Article 1.1 of PO3

77.

C-110: RMGC Extraordinary General Meeting of Shareholders Resolution dated 10 October 2014

Entire document

See reasons provided for Item 62 above.

Claimants agree this exhibit is not confidential.

No order

78.

C-112: [undisclosed]

Entire document

See reasons provided for Item 7 above.

Claimants disagree and consider this document to be confidential.

See reasons provided for Item 70 above.

Confidentiality maintained. Document contains confidential business information and hence within Article 1.1 of PO3

79.

C-114: [undisclosed]

Entire document

See reasons provided for Item 7 above.

Claimants disagree and consider this document to be confidential.

See reasons provided for Item 70 above.

Confidentiality maintained. Document contains confidential business information and hence within Article 1.1 of PO3

80.

C-115: RMGC Convening Notice for the Extraordinary General Meeting of Shareholders dated 7 September 2015

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, this document is in the public domain.

Pursuant to Romanian corporate law (Law No. 31/1990), this convening notice was published in the Official Gazette.4

Claimants agree this exhibit is not confidential.

No order

81.

C-118: RMGC Extraordinary General Meeting of Shareholders Resolution No. 2 dated 8 October 2015

Entire document

See reasons provided for Item 62 above.

Claimants agree this exhibit is not confidential.

No order

82.

C-119: RMGC Trade Registry History dated 12 February 2016

Entire document

First, this document does not fall within one of the three categories set out in Article 1.1 of PO3, namely, that it is “(i) confidential business information, (ii) information that is privileged, or (iii) information that is otherwise protected from disclosure.” (See Respondent’s 10 January 2017 letter, p. 2, first para.)

Second, this document is in the public domain.5

Claimants agree this exhibit is not confidential.

No order

83.

C-125: RMGC Trade Registry excerpt dated 16 August 2016

Entire document

See reasons provided for Item 82 above.

Claimants agree this exhibit is not confidential.

No order

Respondent’s Exhibits

84.

R-1: Letter from NAMR to Romanian Parliament 14 September 2007

Entire document

See reasons provided for Item 1 above.

Claimants do not object to Respondent’s view.

However, this document does not relate to the recent declassification of Documents.

Not Confidential

85.

R-2: Letter from NAMR to Gabriel and RMGC 18 September 2007

Entire document

See reasons provided for Item 1 above.

Claimants do not object to Respondent’s view.

However, this document does not relate to the recent declassification of Documents.

Not Confidential

86.

R-3: Letter from Gabriel and RMGC to NAMR 27 November 2007

Entire document

See reasons provided for Item 1 above.

Claimants do not object to Respondent’s view.

However, this document does not relate to the recent declassification of Documents.

Not Confidential

87.

R-4: Letter from NAMR to RMGC 23 June 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

88.

R-5: Letter from NAMR to RMGC 14 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

89.

R-6: Letter from RMGC to NAMR 22 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

90.

R-7: Updated RMGC Registry of documents relating solely to the Rosia Montana License 22 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

91.

R-8: Letter from NAMR to RMGC 22 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

92.

R-9: Letter from NAMR to RMGC 22 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

93.

R-10: Letter from RMGC to NAMR 26 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

94.

R-11: Letter from RMGC to NAMR 26 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

95.

R-12: Letter from NAMR to RMGC 29 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

96.

R-13: Letter from NAMR to Cepromin 28 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

97.

R-14: Letter from Cepromin to NAMR 2 August 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

98.

R-15: NAMR Order regarding the declassification of work secret documents relating to the Rosia Montana License 29 July 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

99.

R-16: Letter from NAMR to RMGC 1 August 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

100.

R-17: Excerpt from Regulation regarding the drafting of regulatory acts 10 May 2009

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

101.

R-18: Excerpt from Decision no. 1361 regarding the substantiation of legislative acts 27 September 2006

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

102.

R-19: Excerpt from Law No. 24 regarding the drafting of legislation 27 March 2000

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

103.

R-20: Gabriel Resources, Management's discussion and analysis-Second Quarter 2016"

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

104.

R-24: Gabriel Resources, "Management’s discussion and analysis -Fourth Quarter 2015"

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

105.

R-25: Gabriel Resources, "Management's discussion and analysis-First Quarter 2015"

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

106.

R-27: RMGC Trade Registry excerpt 16 August 2016

Entire document

See reasons provided for Item 82 above.

Claimants agree this exhibit is not confidential.

No order

107.

R-28: RMGC Trade Registry History 12 February 2016

Entire document

See reasons provided for Item 82 above.

Claimants agree this exhibit is not confidential.

No order

108.

R-29: Emergency ordinance no. 74 regarding ANAF 26 June 2013

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

109.

R-32: Work Order regarding fiscal inspection of RMGC 11 March 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

110.

R-33: Tax Procedure Code

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

111.

R-34: Law no. 571 of 22 December 2003

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

112.

R-36: Excerpt from Order no. 3699 to approve the procedure for the settlement of the returns with a negative VAT amount with refund option 17 December 2015

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

113.

R-39: Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

114.

R-40: Government Decision no. 520 on organization and functioning of ANAF 24 July 2013

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

115.

R-41: Excerpts from Law 554 of 2 December 2004 on contentious administrative matters

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

116.

R-42: Letter from NAMR to RMGC 23 August 2016

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

117.

R-43: Storage Contract 12 May 2005

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

118.

R-44: Storage Contract, Addendum 1 17 May 2010

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

119.

R-45: Storage Contract, Addendum 2 8 May 2015

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

120.

R-46: Minvest Protocol No. 1988 25 August 2016

Entire document

See reasons provided for Item 21 above.

Claimants do not object to Respondent’s view.

Not Confidential

121.

R-48: Print-out regarding decision 1009/2015, Alba Tribunal 23 December 2015

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

122.

R-49: Print-out regarding decision 82/2016, Alba Tribunal 2 February 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

123.

R-50: Print-out regarding decision 456/2016, Alba Tribunal 27 June 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

124.

R-51: Print-out regarding decision 478/2016, Alba tribunal 16 August 2016

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

125.

R-52: Excerpts from the Civil Procedure Code

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

126.

R-53: Excerpts from Law No. 188 on the statute of civil servants 8 December 1999

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

127.

R-54: Excerpts from the Criminal Code 17 September 2009

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

128.

R-55: Romanian Constitution as amended in 2003

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

129.

R-56: Excerpt from Criminal Procedure Code

Entire document

See reasons provided for Item 1 above.

Claimants agree this exhibit is not confidential.

No order

130.

R-57: Letter from Ipromin to NAMR 24 August 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

131.

R-58: Letter from RMGC to NAMR (extracted from Annex A to Claimants' letter to Tribunal dated 16 September 2016) 13 09 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

132.

R-61: Letter from NAMR to RMGC regarding copies of documents in Registry 16 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

133.

R-62: Letter from NAMR to Cepromin regarding de-classification 19 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

134.

R-63: Letter from NAMR to Ipromin regarding declassification 19 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

135.

R-64: Letter from NAMR to RMGC regarding declassification of Bucium License 19 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

136.

R-65: NAMR Order No. 223 regarding the declassification of the Bucium License (Annex A to the Claimants’ letter to the Tribunal dated 22 September 2016) 19 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

137.

R-66: NAMR Order No. 224 on the declassification of documents regarding Bucium and Roşia Montană Licences (Annex B to the Claimants’ letter to the Tribunal dated 22 September 2016) 20 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

138.

R-67: Letter from NAMR to RMGC regarding declassification of Bucium and Roşia Montană Licences 20 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

139.

R-68: Letter from NAMR to IPROMIN regarding declassification of documents relating to the Bucium License 21 June 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

140.

R-69: Letter from NAMR to MINEXFOR regarding declassification of documents relating to the Bucium License 21 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

141.

R-70: Letter from NAMR to Mineral Resources Department regarding declassification of documents relating to the Bucium License 21 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

142.

R-71: Letter from NAMR to MINVEST regarding declassification of documents relating to the Bucium License 21 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

143.

R-72: Letter from NAMR to RMGC regarding declassification of documents relating to the Bucium License (Annex C to the Claimants’ letter to the Tribunal dated 22 September 2016) 21 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

144.

R-73: Letter from RMGC to NAMR regarding declassification order relating to the Bucium License 21 September 2016

Entire document

See reasons provided for Item 15 above.

Claimants do not object to Respondent’s view.

Not Confidential

Witness Statement of Dragos Tanase

145.

Para. 1. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

146.

Para. 2. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

147.

Para. 3. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

148.

Para. 4. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

149.

Para. 6. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

150.

Para. 22. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

151.

Para. 23. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

152.

Para. 24. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

153.

Para. 26. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

154.

Para. 27. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

155.

Para. 28. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

156.

Para. 29. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

157.

Para. 30. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

158.

Para. 31. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

159.

Para. 32. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

160.

Para. 33. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

Witness Statement of Max Vaughan

161.

Para. 1. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

162.

Para. 2. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

163.

Para. 3. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

164.

Para. 4. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

165.

Para. 5. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

166.

Para. 6. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

167.

Para. 7. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

168.

Para. 8. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

169.

Para. 9. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

170.

Para. 11. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

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[undisclosed]

171.

Para. 13. [undisclosed]

[undisclosed]

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[undisclosed]

[undisclosed]

172.

Para. 14. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

173.

Para. 15. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

174.

Para. 17. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

Witness Statement of Petre-Dragoş Voinescu

175.

Para. 1. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

176.

Para. 4. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

177.

Para. 5. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

178.

Para. 6. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

179.

Para. 7. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

180.

Para. 8. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

181.

Para. 9. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

182.

Para. 10. [undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

[undisclosed]

1  A number of the exhibits are legal texts such as the BIT s or Romanian laws or regulations, all of which are in the public domain. In this regard, the Respondent notes the Tribunal’s statement that “[t]he existence of enforcement proceedings and the fact that RMGC risked paying interest and penalties are given facts as set out in the Romanian Fiscal Code. They are not confidential as they merely recite the plain wordings of the national law.” See Tribunal’s letter of 10 May 2017, para. 23(d).

2  Article 211 of Law 31/1990 (as in force in December 2004 and abrogated in June 2007) provided: “The decision of the general assembly to increase the registered capital shall be published in the Official Gazette of Romania, Part IV, granting a period of at least one month for the priority right to be exercised starting from the publication day.” (emphasis added)

3  Article 131 (4) of Law 31/1990 (as in force as of November 2006) provided: “In order to be opposable to third parties, the decisions of the general assembly shall be filed within 15 days at the trade register office in order to be mentioned in the register and published in the Official Gazette of Romania, Part IV.” (emphasis added)

4  Article 117(3) of Law 31/1990 provides: “The Covening note shall be published in the Official Gazette of Romania, Part IV, and in one widely circulated newspaper in the locality of the company’s registered office or in the nearest locality.” (emphasis added)

5  Article 4 of Law 26/1990 provides: “(1)The trade registry is public. (2) The trade registry office is obliged to issue, on the applicant's expense who filed the request, information, excerpts from register and certified copies of registrations carried on in the register, as well as certificates ascertaining that certain deeds or facts are or are not registered, copies and certified copies of the registrations carried on in the register and of presented documents, for which fees are charged. (3) The deeds mentioned at paragraph (2) can be required and delivered by correspondence as well. (4) Upon request, the documents mentioned in paragraph (1) are issued electronically, with on-line transmission, having incorporated, attached or logically associated with the extended electronic signature. (5) The fees charged for the issuance of the copies and/or information, irrespective of the mode of supply, will not exceed the administrative costs involved in their issuance.”