NAFTA - Chapter 11 - Investment

Cases Filed Against the Government of Canada

Tennant Energy, LLC. v. Government of Canada

Claimant

The claim was brought by Tennant Energy, LLC (“Tennant”), a US corporation that claimed to own and control Skyway 127 Wind Energy Inc. Skyway 127 Wind Energy Inc. is an enterprise that proposed to develop a wind farm in Ontario as part of Ontario’s Feed-in Tariff Program.

Article

• Article 1105 (Minimum Standard of Treatment)

Damages claimed

At least CA $219,012,000

Status

Won.

Arbitration rules

United Nations Commission on International Trade Law (UNCITRAL)

Summary

Procedural history

On March 2, 2017, Tennant filed a Notice of Intent  to submit a claim to arbitration against the Government of Canada under Chapter 11 of the NAFTA (North American Free Trade Agreement). On June 1, 2017, Tennant filed its Notice of Arbitration , thus commencing the NAFTA arbitration process.

A tribunal was established on November 9, 2018.

The Claimant filed its Memorial on Jurisdiction, Merits and Damages on August 7, 2020. Canada filed its Counter-Memorial on Jurisdiction, and Renewed Request for Bifurcation, on September 21, 2020. The Claimant filed its Response to Canada’s Renewed Request for Bifurcation on October 12, 2020. On November 12, 2020, the Tribunal issued Procedural Order No. 8, wherein the Tribunal granted Canada’s Renewed Request for Bifurcation with respect to Canada’s objection that the Claimant was not an “investor of a Party” when the alleged breaches occurred.

The Claimant filed its Reply Memorial on March 1, 2021, after which the Tribunal issued Procedural Order No. 9 on March 10, 2021. In that order, the Tribunal decided that it would also hear Canada’s second jurisdictional objection – that the Claimant’s claims were submitted outside the limitation period in Article 1116(1) of the NAFTA.  

Canada filed its Rejoinder Memorial on Jurisdiction on May 26, 2021. 

The governments of the United States and Mexico filed Non-Disputing Party submissions, pursuant to NAFTA Article 1128 on June 25, 2021, and the disputing parties filed their responses to these submissions on July 26, 2021.

The hearing took place from November 15-19, 2021.

Factual overview and nature of the claim

Tennant alleged that Ontario’s administration of the Feed-In Tariff program (FIT) was non-transparent and opaque, and that Tennant was treated unfairly with respect to their project in Ontario. In addition, Tennant alleged that government records documenting the nature and extent of the alleged unfair energy regulatory measures were intentionally destroyed.

Final Award

In its Final Award dated October 25, 2022, the Tribunal declined jurisdiction to hear the claim on the grounds that the requirements under Article 1116(1) of NAFTA were not satisfied. It dismissed the Claimant’s claim in its entirety and ordered the Claimant to bear 100% of the arbitration costs and 80% of Canada’s legal representation and assistance costs.

Legal documents

Additional documents related to this case can be viewed at the website of the Permanent Court of Arbitration.

Copies of all legal documents posted have been prepared in a language of operation of the Tribunal or Court in question. The Government of Canada has not modified or changed them in any way. As such they have not been translated from the original.

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