Windstream Energy LLC v. Government of Canada, UNCITRAL, Claimant Memorial (August 19, 2014)
PART ONE – INTRODUCTION
1. In an effort to phase out dirty coal-fired power plants and establish a robust renewable power industry supporting “green-collar” jobs, in the mid-to-late 2000s the province of Ontario, Canada, turned to the private sector to build thousands of megawatts of power supplied by renewable sources. The sources of renewable energy that Ontario promoted included offshore wind electricity generation. Over a period of more than two-and-a-half years, Ontario actively promoted itself to investors as a safe jurisdiction in which to invest in offshore wind renewable energy projects – a jurisdiction that would provide “certainty” to investors in offshore wind projects. Ontario made multiple representations and commitments to the Claimant, Windstream Energy LLC (“Windstream”), that it supported offshore wind electricity generation generally and Windstream’s offshore wind project, the Wolfe Island Shoals Project (the “Project”), specifically. Relying on these multiple representations and commitments, Windstream invested millions of dollars in developing the Project.
2. In February 2011, Ontario reversed its support for offshore wind by imposing a “moratorium” on offshore wind development, citing “scientific uncertainty” as the moratorium’s rationale. The moratorium remains in effect as of the date of this memorial. The moratorium and Ontario’s related actions have had devastating and drastic effects on Windstream’s investments in Ontario, which are now effectively worthless and have no prospect of recovering in value even if the moratorium is lifted. Ontario’s actions breach Canada’s obligations under Articles 1110, 1105, 1102 and 1103 of NAFTA, and give rise to an obligation to compensate Windstream.
3. Windstream’s investments in Canada. In August 2010, Windstream, through its Canadian investment Windstream Wolfe Island Shoals Inc. (“WWIS”), entered into a power purchase agreement under the Ontario Power Authority’s (“OPA”) feed-in-tariff program (the “FIT Contract”).