Tennant Energy, LLC v. Government of Canada
PCA · Investment (ICSID and treaty) · Canada · 4 May 2022
Why it matters
This case addresses critical issues of NAFTA investor standing, including whether a successor in interest can bring a claim, the effect of government deception on limitation periods, and the relevance of the Westmoreland Coal award. It tests the boundaries of beneficial ownership and assignment of claims under NAFTA, with implications for future investor-state disputes involving corporate restructuring and alleged state misconduct.
Summary
Tennant Energy, LLC, a US company, brought a NAFTA Chapter 11 claim against Canada alleging that Ontario's FIT Program was administered unfairly and deceptively, favoring politically connected companies and harming Tennant's investment in Skyway 127 Wind Energy. Canada challenged jurisdiction on several grounds, including that Tennant Energy was not the proper investor because it acquired the shares after the alleged breach and that the claim was time-barred under NAFTA Article 1116(2). Tennant Energy argued that it was the successor in interest to John Tennant, who had a beneficial interest in the shares since 2007, and that the limitation period should be tolled due to Canada's ongoing deception about the FIT Program. The investor relied on a trust arrangement and a confirmatory memorandum (C-268) to show that John Tennant held the shares in trust for Tennant Energy from April 2011, and that the company controlled Skyway 127 from December 2011. Tennant Energy also argued that the breach was not complete until the truth about the program's favoritism became known in 2015-2017. The Westmoreland Coal award was cited by Canada but distinguished by Tennant Energy on its facts. The tribunal had not yet issued a decision on jurisdiction at the time of this post-hearing submission.
The detail
Parties: Tennant Energy, LLC v. Government of Canada
Case number: PCA Case No. 2018-54
Outcome: Jurisdictional phase ongoing; no final award on merits.
Applicable law: NAFTA Chapter 11, UNCITRAL Rules
Issues in play: NAFTA Article 1116 (time limits), Article 1109 (transfers), and the definition of 'investor' and 'investment' under NAFTA Article 1139; also issues of succession in interest and tolling due to alleged government deception.
Read the full decision at italaw ↗
Locus Standi links to the source decision and publishes its own plain-language summary. It does not reproduce the text of the award.