By Lauren Fleming, Staff Member
Protests held around the world on February 4, 2016 against the ratification of the Trans-Pacific Partnership (TPP) were another sign of growing discontent against market liberalization and multilateral free trade agreements. Labor groups and environmentalist were among the most vocal opposition groups, denouncing the erosion of labor standards and environmental protections.
One element of the TPP and similar trade agreements that has received widespread criticism is investor-state dispute settlement (ISDS). ISDS provisions in international trade agreements allow corporations to sue governments through an apolitical arbitration system. Independent tribunals are formed to adjudicate disputes between investors, who claim their property rights have been infringed upon in violation of international treaties; and governments, who claim their actions were just.
Although only a small number of disputes were arbitrated in the mid-1990s, there has been a large increase in the number of investor-state arbitrations. Several of these decisions have provoked strong criticism from environmental groups. For example, In 2000, a United States corporation successfully sued the Mexican government, alleging improper denial of a permit to operate a hazardous waste site, and collected over $18 million in damages. In 2011, a Swedish energy company sued Germany for its decision to phase out nuclear energy after the Fukushima disaster. Germany settled the case before arbitration and withdrew its plans.
These cases are often cited to in order to illustrate the dangers ISDS has on countries’ ability to regulate the environment. Recently, one investor-state dispute has emerged that has prompted the idea that private investors can utilize ISDS in order to promote environmental policies.
In 2010, Peter Allard, a Canadian businessman, initiated an ISDS action against Barbados. Allard operated an environmental sanctuary and eco-tourism site in Barbados. In 2005, the South Coast Sewage Treatment Plant, owned and operated by the Barbados Water Authority, accidently discharged raw sewage into the wetlands, parts of which comprised Allard’s sanctuary. Allard alleged that Barbados’s negligent operation of the plant, coupled with other failures, damaged his investment and constituted a breach of Barbados’s treaty obligations with Canada.
In June 2016, the arbitration panel published its conclusions. First, the panel found that Allard failed to prove that the health of the sanctuary materially declined during the relevant period, thus forcing him to cease operating the sanctuary. Second, the arbitrators concluded that even if Allard had established sufficient injury to the sanctuary, he failed to prove that injury “was caused by the actions or inactions of Barbados.” In addition, the tribunal found Allard failed to establish that Barbados violated any of the provisions of the BIT between Canada and Barbados.
Although Allard was ultimately unsuccessful, this case marks a significant shift in the use of ISDS. This is one of the first disputes where the investor has utilized ISDS as a means to protect the environment. It prompts an interesting conversation regarding future suits and whether ISDS can be used as a mechanism for the promotion of environmental goals.
 TPP Signing Sparks Dozens of Protests Across US Over Biggest Trade Pact, Reuters, February 5, 2016, https://www.rt.com/usa/331356-tpp-signing-protests-usa/; Trans Pacific Partnership Trade Deal Signed in Auckland, BBC News, February 4, 2016, http://www.bbc.com/news/business-35480600.
 See generally Cathleen Cimino-Isaacs, Labor Standards in the TPP, in Trans-Pacific Partnership: An Assessment 261, 261–78 (Cathleen Cimino-Isaacs & Jeffrey J. Schott eds., 2016) (providing an overview of the TPP’s labor standards and trade rules); Jeffrey J. Schott, TPP and the Enviornment, in Trans-Pacific Partnership: An Assessment 251, 251–60 (Cathleen Cimino-Isaacs & Jeffrey J. Schott eds., 2016) (analyzing the TPP’s environment chapter and member-countries’ environmental obligations).
 Stephen E. Blythe, The Advantages of Investor-State Arbitration as a Dispute Resolution Mechanism in Bilateral Investment Treaties, 47 Int’l Law. 273, 276 (2013). See also Charles N. Brower & Shashank P. Kumar, Investomercial Arbitration: Whence Cometh It? What Is It? Whither Goeth It?, 30 ICSID Rev. – For. Inv. L.J., 44 (2015).
 See generally Zachary Douglas, The International Law of Investment Claims 1–6 (2009) (providing broad overview of investment treaties and arbitration).
 Kyla Tienhaara, Regulatory Chill and the Threat of Arbitration: A View From Political Science, in Evolution in Investment Treaty Law and Arbitration 606, 676 (Chester Brown & Kate Miles eds., 2011).
 See Madison Condon, The Integration of Environmental Law into International Investment Treaties and Trade Agreements: Negotiation Process and the Legalization of Commitments, 33 Va. Envtl. L.J. 102, 108 (2015); Samrat Ganguly, The Investor-State Dispute Mechanism and a Sovereign’s Power to Protect Public Health, 38 Colum. J. Transnat’l L. 113, 145 (1999).
 Meredith Wilensky, Reconciling International Investment Law and Climate Change Policy: Potential Liability for Climate Measures Under the Trans-Pacific Partnership, 45 Envtl. L. Rep. 10683, 10584 (2015)
 Allard v. Barbados, PCA Case Repository 2012-06, Award, ¶¶ 1, 4(2016).
 Id. at ¶ 33.
 Id. at ¶¶ 33, 43.
 Id. at ¶ 3.
 Id. at ¶ 139.
 Id. at ¶ 166.
 Id. at ¶¶ 228, 252, 226.