Midst the maelstrom of legal misadventure that currently impedes this gold mine project, I propose taking a step back in order to examine the broader issues raised by this struggle, such as: the role of NGO’s in governance, regulation and economic development, legal certainty, standards of corporate social responsibility and the role of law in society. It would be impossible to adequately discuss these issues and those not yet mentioned all at once. Rather, I suggest taking things at a more considered pace. After all, the EIA process has been suspended and the Romanian Senate is considering legislation that bans the use of cyanide. It seems a good time to kick back and ponder the law.

The story of this mine is compelling in so many ways, politically, economically but also legally. Perhaps not as sexy as politics, the law is pervasive, inescapable and can be polarizing. It does not disappoint in the case of Rosia Montana. To begin with, Romania is a civil law country like France. This is in contrast to the US and the UK which are common law countries. Romania is also a member of the EU and must comply with and apply EU law. And membership in the EU is why how this dispute plays out is all the more weighty. Respect for the rule of law is a prerequisite to membership in that exclusive club.

Decisions by courts do not serve as law or precedent in civil law countries. A statute is the law. Additionally, there are rules of civil procedure that govern how you bring a case to court and tell you if you even can bring the case. For example, in the US, there is a federal rule of civil procedure, Rule 11, which permits judges to dismiss a case if it is based on frivolous arguments. Hopefully we all may have access to the Court of Appeals decisions in the RMGC cases, but now can only wonder what provisions of the code of civil procedure, indeed what causes of action, support and underlie these cases?

In the instance of the Rosia Montana Court of Appeals cases currently winding their way through the system, decisions by those judges will not be binding on subsequent disputes that may arise. If however, the case is appealed to the Supreme Court, the highest court, the decision will become binding law. Should RMGC lose in the Court of Appeal but succeed in the Supreme Court that decision will be legally significant within the limits of the legal issues of the case. But what does that all mean? Aren’t we just talking about the validity of information filings and the like?

Unfortunately, it is all much bigger than that. Regardless of ones personal opinion of the law or lawyers, a reliable, credible legal infrastructure aids development. Donors want it and it contributes to economic growth. As with much of the activity that led up to the out and out legal dispute here, there has been a fair amount of slight of hand in this situation. While we focus on the big, bad corporation plundering and pillaging the people and the landscape for the sake of bling, what is actually at stake is nothing less than the independence of the Romanian judiciary. Judges are the gatekeepers in civil and common law countries. They uphold the law whether statute or case law. There is an argument, particularly under the Romanian system, that in comparison to common law systems, judges are not all that critical because their powers of judicial review are limited and they don’t make law. How are they unimportant when the Ministry of Environment and Sustainable Development can suspend the progress of this project after a mere case filing? That is heavy handed and it smacks of a lack of independence between the organs of government.

In civil law countries, the judge is the trier of law and fact. There is no jury to persuade. With that judge lies the fate of the dispute. That judge and the resolution of disputes by the court system must be neutral, impartial and above influence. For developing countries and developing economies worldwide a judiciary that is independent of influence by any outside force, governmental or not, is paramount.  

I intend to follow these cases and developments in Rosia Montana and use them to discuss, among other things, what appears to be a disturbing abuse of process for some purpose we can only now guess at. No need to kill the lawyers. The law is a beautiful thing, but it can be wrongly manipulated if it lives and grows in an environment without accountability and transparency.

 

June McLaughlin, Esq., LLM, LLM, MCIArb