California renewable energy investor fails to qualify as an ‘investor’ under the NAFTA (Tennant v Canada)

Article summary

Arbitration analysis: An UNCITRAL tribunal (with its president appointed by ICSID) and administered by the PCA, has ruled that Tennant Energy LLC, a California investor in an Ontario wind project, failed to prove it was a qualifying investor under the North American Free-Trade Agreement (NAFTA). Tennant alleged that Canada had breached its obligations under the NAFTA, including Article 1105—Minimum Standard of Treatment, when awarding renewable energy contracts as part of its Feed-in-Tariff Program (FIT Program). The award upheld Canada’s objection to jurisdiction on the ground that the claimant failed to demonstrate that it owned or controlled the investment at the time of the alleged breach. It further found that there was no evidence that the claimant had suffered any damage, having acquired the investment in full knowledge of the alleged breach. The award is of interest to investment law practitioners as it addresses novel issues, such as whether a NAFTA claim can be assigned to another...