Through <doc id="gua-01049-2022-00243-2024-09-13-a" /> of September 13, 2024, Guatemala's Sixth Pluripersonal Civil Court of First Instance sustained Lisa, S.A.'s jurisdictional objection and ordered the parties to submit to arbitration, imposing costs on Inversiones Torre Nova, S.A.
Inversiones Torre Nova, S.A. filed a summary proceeding against Lisa, S.A. seeking a declaration that the dividends decreed at the Annual Ordinary General Assembly of Shareholders on June 10, 2016, for fiscal year 2015, had prescribed. Lisa raised two preliminary exceptions: lack of jurisdiction based on the arbitration clause in Torre Nova's articles of incorporation, and lack of condition due to embargo orders on Lisa's dividends across multiple courts. Through <doc id="gua-01049-2022-00243-2024-09-13-a" /> of September 13, 2024, Guatemala's Sixth Pluripersonal Civil Court of First Instance sustained the jurisdictional objection, holding that the arbitration clause requires the dispute to be resolved through equity arbitration, and imposed costs on Inversiones Torre Nova, S.A.
Inversiones Torre Nova, S.A. filed a summary proceeding against Lisa, S.A. seeking a declaration that the obligation to pay the dividends decreed at the Annual Ordinary General Assembly of Shareholders on June 10, 2016, for the fiscal year January 1 through December 31, 2015, had prescribed. Lisa filed two preliminary exceptions within the statutory period, lack of jurisdiction based on an arbitration clause and lack of condition to which the asserted right is subject.
Through <doc id="gua-01049-2022-00243-2024-09-13-a" /> of September 13, 2024, Guatemala's Sixth Pluripersonal Civil Court of First Instance sustained the exception of lack of jurisdiction and declined to hear the claim. The court held that Clause 25 of Public Deed No. 89, executed on August 17, 1999, before Notary Héctor René López Sandoval, through which Torre Nova was incorporated, requires disputes arising from the articles of incorporation to be resolved through equity arbitration under the Arbitration Law and the Conflict Resolution Commission of the Chamber of Industry of Guatemala. Finding that the prescription of dividend payment obligations is a dispute deriving directly from the articles of incorporation, and that Torre Nova offered no congruent counterargument or evidence rebutting the clause, the court concluded it lacked jurisdiction under Article 11 of the Arbitration Law.
Lisa's second exception, lack of condition, asserted that Inversiones Torre Nova is legally prevented from claiming prescription because multiple courts have ordered embargoes on the dividends, profits, and liquidation proceeds owed to Lisa. According to Lisa, when it requested payment of the dividends owed on December 31, 2018, Torre Nova responded that it could not pay because of prior embargo orders issued by competent courts, and that its own Manager or Administrator serves as judicial depositary of those funds. Lisa argued that before Torre Nova can seek prescription of the dividend obligations, those embargoes must first be lifted. The court did not reach this exception once it sustained the jurisdictional objection, leaving Lisa's arguments regarding the embargoes that prevent dividend collection, obtained at the instance of the same group now invoking prescription, without judicial resolution.
Practical effect: Inversiones Torre Nova's attempt to extinguish the dividend payment obligation through prescription was rejected in the civil courts. Lisa, S.A. prevailed, costs were imposed on Torre Nova, and the dispute must be resolved, if at all, before an arbitral tribunal.
The civil proceeding concluded with the referral to arbitration, and the lack-of-condition exception grounded in the embargoes was left without judicial resolution. No record indicates that arbitration proceedings have been initiated or that the court's ruling has been challenged.