Summary

I. Introduction

1. The present Order is made in an arbitration between Tennant Energy, LLC (the "Claimant") and the Government of Canada ("Canada" or the "Respondent"), pursuant to Chapter 11 of the North American Free Trade Agreement ("NAFTA") and the Arbitration Rules of the United Nations Commission on International Trade Law, as adopted in 1976 (the "UNCITRAL Rules").

2. The dispute between the Parties concerns the Respondent's alleged breaches under Chapter 11, Section A of the NAFTA through the application of the 2011 Feed-in Tariff Program (the "FIT Program") in respect of the Claimant's alleged investment in Skyway 127 Wind Energy Inc. ("Skyway 127"), an enterprise incorporated in Ontario, Canada.

3. At issue in this Order are the following applications:

(a) The Claimant's Request for Interim Measures, dated 16 August 2019 (the "Request for Interim Measures"), in which it requested that the Tribunal order (i) the disputing parties to preserve, index, protect, and scan documentation in their possession, custody, or control that is relevant to the dispute; and (ii) the Respondent to produce within 30 days the non-confidential documents on record in the Windstream Energy LLC v. Government of Canada case in their entirety to the Claimant, along with an index;

(b) The Respondent's Request for Bifurcation, submitted on 23 September 2019 (the "Request for Bifurcation") to address in a preliminary procedure the Respondent's NAFTA Article 1116(2) time-bar jurisdictional objection; and

(c) The Respondent's Motion for Security for Costs, and in the same submission, its Motion for the Disclosure of Third-Party Funding, dated 16 August 2019 (the "Motion for Security for Costs" and "Motion for the Disclosure of Third Party Funding"), in which it requested the Tribunal to order the Claimant to (i) issue security for costs in the amount of 6,934,001.95 CAD, by depositing the security into an escrow account arranged by the Permanent Court of Arbitration (the "PCA") within 90 days of the order, or the arbitral proceedings will be discontinued; and (ii) disclose the existence of any third-party funding agreement that the Claimant has entered into to finance its claim in this arbitration, the name(s) and details of the third-party funder(s), and the nature of the arrangements concluded with the third- party funder(s), including whether and to what extent it/they will share in any successes that Claimant may achieve in this arbitration, or pay an adverse costs order against the Claimant.

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