NAFTA - Chapter 11 - Investment

Cases filed against the Government of Canada

Windstream Energy LLC v. Government of Canada (II)

Claimant

Windstream Energy LLC (Windstream) is a limited liability company organized under the laws of Delaware, in the United States. In 2010, its Canadian subsidiary, Windstream Wolfe Island Shoals (“WWIS”), obtained an Ontario Feed-in-Tariff (“FIT”) contract to develop 300-megawatt offshore wind energy facility. In this second NAFTA (North American Free Trade Agreement) claim, Windstream now alleges that measures related to the February 2020 termination of its FIT Contract are in breach of NAFTA.

Articles

• 1105 (Minimum Standard of Treatment)
• 1110 (Expropriation and Compensation)
• 1503 (State Enterprises)

Damages claimed

CA$333 million plus costs and interest.

Status

Ongoing.

Arbitration Rules

United Nations Commission on International Trade Law (UNCITRAL)

Summary

Procedural history

In 2016, Windstream pursued a NAFTA Chapter 11 challenge of the Government of Ontario’s February 2011 moratorium on offshore wind development. That tribunal awarded Windstream approximately $25 million in damages, plus costs and interest, which was paid in full by the Government of Ontario.

On January 22, 2020, Windstream filed a new Notice of Intent to Submit a Claim to Arbitration. On December 22, 2020, Windstream filed a new Notice of Arbitration, thus commencing the second NAFTA arbitration process. Windstream filed its Memorial on February 18, 2022. Canada filed its Memorial and Request for Bifurcation on May 12, 2022, and Windstream filed its response on June 16, 2022. The Tribunal declined Canada’s request for Bifurcation. Canada filed its Counter-Memorial on December 13, 2022 and its rejoinder memorial on October 2023. A hearing took place in Toronto from February 5 to 9, 2024. The Tribunal’s decision is still pending.

Factual overview and nature of the claim

Windstream alleges that measures related to the February 2020 termination of its FIT Contract by the Government of Ontario  after the First NAFTA Award are tantamount to an expropriation without compensation. Windstream also alleges that those measures amount to a failure to accord WWIS treatment in accordance with customary international law.

Legal documents (all documents are in pdf)

Additional documents related to this case can be viewed at the website of the Permanent Court of Arbitration. Details of relevant facts and previous legal arguments may be found in the Windstream 1 award and pleadings, available on 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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