In the nineteenth- and early-twentieth centuries, mixed claims commissions were established as a way of resolving claims for injuries caused to foreign nationals by rebels when political instability, especially in the form of revolution and civil war, threatened foreign imperial and commercial ambitions and interrupted periods of capitalist expansion in decolonised Mexico and Venezuela. Enforcing state responsibility for such claims was often the justification for intervention in Latin America during the late nineteenth- and early twentieth-centuries. While not all of the mixed claims commissions were imposed by the threat or use of force, invasion, occupation and bombardment existed alongside arbitration as part of a spectrum of more or less coercive measures to protect foreign commerce and capital during this time. The system of mixed claims commissions – as a political intervention in decolonised Latin America – served to insulate global economic liberalisation against revolution and civil war in the decolonised world, by taking the question of who assumed the risk of harm by rebels out of the scope of national authority.

The mixed claims commissions, which had a degree of autonomy from the agendas of the states that imposed them, produced a rich and extensive body of case law on state responsibility for rebels. The practice of the commissions to enforce claims based in contract greatly increased the scope of state responsibility for rebels, in a way that reduced the risks for foreign nationals of doing business in Latin America and insulated commercial relations from political instability; the arbitral practice had a politics, even if it did not necessarily or straightforwardly reflect the context of the commissions’ establishment. The commissions engaged with a number of important international legal rules and principles: the general principle of non-responsibility for rebels, with exceptions for successful rebels, rebels who establish de facto authority and negligence in failing to protect against rebels. The exceptions to non-responsibility, particularly the duty of protection, would end up being more important than the rule. At the same time, the practice of the commissions was at times contradictory and ambiguous, providing only the shakiest foundation for future obligations.

Chapter 3 examines the historical origins of the standing, cause of action, and damages ideas that are at the heart of this study. The focus is on decisions of ad hoc arbitral tribunals and ‘mixed claims commissions’ of the nineteenth and first half of the twentieth centuries, in particular the Venezuelan and Mexican Commissions of 1903 and 1923–1934 respectively. The chapter aims to understand the context and function of the concepts from which the current position on shareholder standing and international causes of action evolved. It concludes that mixed claims commissions and ad hoc tribunals were already attentive to and dealt with the effects of overlaps between national and international claims. This chapter suggests that contemporary investment tribunals should adopt a similar approach.