TERMS - Express terms - Force majeure

Law360 Canada (October 3, 2022, 9:03 AM EDT) -- Appeal by appellants, ENMAX Energy Corporation (ENMAX) and Balancing Pool, from the chambers judge’s dismissal of the application to set aside the arbitration award on grounds of manifest unfairness. TransAlta Generation Partnership (TransAlta), owner and operator of Keephills Generating Units, entered into a Power Purchase Arrangement (PPA) to supply electrical power to ENMAX, as buyer. The Balancing Pool had financial obligations under the PPA, and it was entitled to participate in any arbitration between an owner and a buyer. The Unit tripped and went off-line for 216 days. TransAlta claimed the shutdown was an event of force majeure. The arbitration panel in its award decision, concluded the shutdown of the Unit was an event of force majeure as defined in the PPA. The appellants challenged the award. They disputed the claim of force majeure and a demand for arbitration was issued under the PPA. Both claimed insufficient document disclosure denied them an opportunity to present their case or respond to that of TransAlta, and reliance by the arbitration panel on the absence of the undisclosed records either supported that conclusion or was another basis for finding manifest unfairness that warranted judicial intervention in the award....
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