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Windstream Energy LLC v Canada, Award, PCA Case No 2013-22, ICGJ 504 (PCA 2016), 27th September 2016, Permanent Court of Arbitration [PCA]

Windstream Energy LLC v Canada, Award, PCA Case No 2013-22, ICGJ 504 (PCA 2016), 27th September 2016, Permanent Court of Arbitration [PCA]

Whether the Ontario Power Authority was a ‘State Enterprise’ within the meaning of Article 1503(2) of the North American Free Trade Agreement (‘NAFTA’).

What standard was appropriate for assessing whether an expropriation had taken place under Article 1110 of NAFTA, in the circumstances of the case.

Whether a temporary moratorium on the construction of offshore wind power in fresh water, which extended beyond the end of the Claimant’s contract period, amounted to an expropriation of the Claimant’s investment.

What standard was appropriate for determining the correct treatment to be accorded to investors under Article 1105(1) of NAFTA (the ‘minimum standard of treatment’).

Whether, by imposing a moratorium on the construction of offshore wind power in fresh water, the Respondent acted unfairly or inequitably toward the Claimant.

Whether the Respondent’s subsequent failure to clarify the regulatory framework relating to the construction of offshore wind power amounted to a failure to treat the Claimant fairly or equitably.

Whether the Respondent treated the Claimant less favourably than other investors ‘in like circumstances’ under Articles 1102–1103 of NAFTA.

What standard was appropriate to measure the damages to be paid to the Claimant, given that the Claimant’s investment had been damaged but not wholly lost.

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