Legal certainty is a goal for all emerging nations. Legal certainty is a principle, which states that rules and principles of law are most effective when they are knowable and reliable.[i]   A legal structure, whose content and formulation is well defined, provides comfort domestically and internationally. In the pursuit of economic growth, nations seek private investment and alliances beyond those with International Aid organizations. Most investors want full disclosure of relevant rules and laws that apply to them at the time of their investment. Surprises and changes in the law can occur but should be orderly and transparent. 

 

It is not new for environmentalists to exploit the law, not for the purpose of winning an argument but rather for the ultimate win, in the court of public opinion.[ii] That strategy was the only one available at a time when Environmental regulations were scarce. Today, however, environmental concerns are paramount in Europe and growing in importance elsewhere leading to a boom in environmental regulation. Rules became certain. Previous strong arm tactics to force countries to focus on the environment should now be obsolete or at least less necessary. This is particularly true for EU member nations. 

 

What is taking place in the courts of Romania however seems particularly un-European. Litigation as offense rather than defense has a distinctly North American flavour. A lawsuit filed on a technicality, generously allowing that the suit is even legal, results in the cessation of progress. It is reminiscent of toxic tort litigation in the US over the harm inflicted by asbestos, breast implants and the Dalkon Shield. These actions buy time. In Romania, we can surmise that the time bought allows anti-cyanide legislation to proceed or allows the fires of public opinion to be stoked, or merely discourages RMGC.  

 

Do NGOs exceed their remit as intermediaries and protectors of the public interest when they exploit the weak and unstable legal infrastructure of struggling nations? To me, the Romanian government seems the sympathetic character in this legal thriller. I wonder about all of the individuals who valiantly worked and struggled to help Romania gain acceptance to the EU only to be fired shortly after, left to watch her falter and stumble politically, socially, and economically. Legal certainty is difficult to achieve. It requires political and economic stability.

 

Without the requisite legal certainty, the Case of the Missing Information Filings begins to feel like Alice in Wonderland, following the white rabbit down the black hole of the legal unknown. This leads me to ask, “What would Disney do?” The soulless, creatures of the night that protect the legal interests of Mickey worldwide are scarier than any vampire. But if legal action is necessary, perhaps they can advise RMGC on how to proceed. By the end of those consultations everyone in Romania, including the judges, will have t-shirts, lunchboxes, and knickers displaying Grigore the Gold Wolf who says that cyanide is safe!

 

What is the point? This dispute is wrong. Recourse in the law, environmental, corporate or other law, is wasteful and harmful for Romania. Economically, 2008 is not looking good. Romania needs investment; investment that is safe, reliable and profitable. RMGC can provide that and appears to be complying with the rules and principles currently in place.

 

With all of the table-pounding going on, it is easy to forget to pound the facts. If the cases currently in the courts are frivolous, they need to be thrown out. If it is legal for the company to continue with its activities then it should do so and the government should continue with the EIA approval process. When the Romanian legislature passes the anti-cyanide bill then the company will have to deal with that, but not before. All of this supports legal certainty.   

 

June McLaughlin, Esq., LLM, LLM, MCIArb

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