NAFTA Tribunal Issues Ruling in Windstream-Canada Case

An investor-state arbitration tribunal published its final ruling last week in the row between a US-based wind energy company, Windstream, and the Canadian government. The award brought an end to a dispute that was filed four years ago under the investment chapter of the North American Free Trade Agreement (NAFTA). Windstream complained about a moratorium on offshore wind energy generation projects imposed in 2011 by the Canadian province of Ontario and its effects on the company’s offshore wind farm project in Lake Ontario. According to Windstream, the measures were discriminatory and arbitrary, while causing an indirect expropriation of the investment. Hearings were held in Toronto in February this year and the NAFTA tribunal reached a final decision in late September. The award was made publicly available in early December. (See Bridges Weekly, 18 February 2016 ) The tribunal rejected most of the company’s claims but found that the Canadian government had acted “unfairly” and “inequitably” – referring specifically to the government not taking the necessary steps to clarify promptly the “regulatory uncertainty” that resulted from the moratorium – and thus was in breach of its NAFTA obligations. It awarded Windstream damages of about C$25.2 million (US$19.1 million) and C$$2.9 million...