A company owned by Texas tycoon T. Boone Pickens has lost a NAFTA claim against Canada over Ontario’s wind energy procurement process.
Mr. Pickens’ company, Mesa Power Group LLC, filed a claim in 2011 alleging that the Ontario government discriminated against the privately owned wind energy company, which had planned to build four wind farms in the province.
Mr. Pickens founded Mesa in 2007 to build wind projects across North America, and was pursuing four in southwestern Ontario with total capacity of 465 megawatts.
After it failed to get the contracts, Mesa filed a claim for more than $600-million under NAFTA, saying political interference doomed its plans, and that preferential treatment was given to other companies. Under NAFTA rules, the federal government had to defend the case, even though the complaint was against Ontario.
The case was heard by a NAFTA arbitration tribunal, organized by the Netherlands-based Permanent Court of Arbitration, in October, 2014. It took the panel more than a year and a half to reach its decision.
While the details of its ruling have not yet been released, the federal government put out a release Friday confirming the decision in its favour. It also said the tribunal decided that Mesa will have to pay all the costs of the arbitration, which amounted to $2,948,701.
Trade lawyer Larry Herman, of Herman & Associates, called the decision “an important victory” which “may dampen the enthusiasm of American claimants, and their financial underwriters, to bring cases that aren’t based on clear and compelling arguments that the NAFTA was really breached.” But he said it will be necessary to see the detailed reasoning of the panel to understand the broader significance of the decision.
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