25 January 2024

PCA Press Release - PCA Case No. 2021-26 Windstream Energy LLC (USA) v. Government of Canada - Public Oral Hearing

In the above-referenced arbitration, an oral hearing will be held at Arbitration Place, Toronto from 5 to 9 February 2024. The arbitral proceedings are being conducted under Annex 14-C of the Canada-United States-Mexico Agreement, Chapter Eleven of the North American Free Trade Agreement, and the 2013 UNCITRAL Arbitration Rules. The Permanent Court of Arbitration (PCA) acts as registry in this arbitration.

Hearing Schedule

On 5 February 2024, the Tribunal will hear the disputing parties’ opening statements. On 6 and 7 February (with 8 February in reserve), direct, cross, and redirect examination of witnesses and experts will take place. On 9 February 2024, the Tribunal will hear the disputing parties’ closing statements. On each day, the hearing will commence at 9:00 a.m. EST (3:00 p.m. CET) and end at 5:00 p.m. EST (11:00 p.m. CET).

The hearing will be transmitted to the public via live-feed. The webcast will be virtually live in order to allow the Tribunal to address in camera confidentiality or other objections, if any. Those wishing to access the livestream of the hearing are requested to register in advance, by sending an e-mail to [email protected] by Wednesday, 31 January 2024.

Hearing transcripts will be uploaded to the PCA’s Case Repository in due course, after the conclusion of the oral hearing, subject to redactions to remove confidential information.

Background of the Arbitration

By a Notice of Arbitration dated 22 December 2020, the Claimant commenced arbitration proceedings against the Respondent on its own behalf and on behalf of its enterprise Windstream Wolfe Island Shoals Inc. pursuant to Article 3 of the 2013 UNCITRAL Arbitration Rules and Articles 1116, 1117 and 1120 of the North American Free Trade Agreement. The Claimant also invoked Annex 14-C of the Canada-United States-Mexico Agreement. The Tribunal is composed of Ms Wendy Miles KC (Presiding Arbitrator), Professor John Gotanda and The Right Honourable Beverley McLachlin.

The disputing parties have submitted several rounds of written pleadings, accompanied by witness statements, expert reports, fact exhibits and legal authorities. The United Mexican States and the United States of America have also filed non-disputing party submissions. At the forthcoming hearing, the disputing parties will have an opportunity to make presentations to the Tribunal and cross-examine witnesses and experts presented by the other side.

Further information about the case, the Tribunal’s orders and decisions and the disputing parties’ written submissions, are available on the PCA’s Case Repository at https://pca-cpa.org/en/cases/280/.

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Background on the Permanent Court of Arbitration

The Permanent Court of Arbitration is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 122 Contracting Parties. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties. The PCA’s International Bureau is currently administering 6 inter-state arbitrations, 1 other inter-state proceeding, 103 arbitrations arising under bilateral or multilateral investment treaties or national investment laws, 94 cases arising under contracts involving a State or other public entity, and 3 other proceedings. More information about the PCA can be found at www.pca-cpa.org.

Contact:      Permanent Court of Arbitration
E-mail:        [email protected]