Upholds Lisa's jurisdictional exception, refers La Perla's dividend prescription claim to arbitration
Jan 20 2020
11th Civil Court
The Eleventh First Instance Civil Court of Guatemala upheld the preliminary exception of lack of jurisdiction filed by Lisa, S.A. and referred the dispute to arbitration. Compañía Importadora La Perla, S.A., an Avícola Group entity, had filed an ordinary action seeking to declare Lisa's dividend rights extinguished by prescription. The ruling blocked the prescription claim from proceeding in ordinary courts and compelled the parties to submit the controversy to arbitration under the clause in La Perla's articles of incorporation.
Compañía Importadora La Perla, S.A. brought an ordinary action against Lisa, S.A. seeking a judicial declaration of extinctive prescription of the obligation to pay dividends decreed by the Annual Ordinary General Assembly of Shareholders on April 6, 2011. La Perla argued that Lisa had failed to claim its dividend distribution within the five-year statutory period.
Lisa, S.A. filed five preliminary exceptions: lack of jurisdiction, defective complaint, lack of legal standing in the plaintiff, failure to fulfill a condition precedent, and failure to fulfill a time requirement.
La Perla sought a declaration that Lisa's right to collect dividends had prescribed under the general five-year limitation period of the Código Civil, on the grounds that Lisa never presented itself to collect the dividends decreed in the April 2011 assembly.
Lack of jurisdiction. Lisa invoked Clause Twenty-Eight of La Perla's articles of incorporation (Public Deed No. 71, dated April 16, 2001, authorized by Notary Carolina Paniagua Corzantes), which provides that any dispute between the parties arising from the contract, its interpretation, adjudication, resolution, or nullity shall be resolved through arbitration under Decree 67-95 of the Congress of the Republic. Lisa argued that the prescription of dividend obligations is a controversy arising from the corporate charter, since Clause Twenty-Five of the same instrument governs dividend distribution. Lisa also raised territorial incompetence, noting that it is a Panamanian entity with no domicile in Guatemala.
Lack of legal standing in the plaintiff. Lisa argued that La Perla's mandatary lacked prior written authorization from the Board of Directors (Consejo de Administración) for acts of disposition, as required by the mandate itself. Lisa characterized the attempt to extinguish a shareholder's dividend rights as an act of disposition that, under Article 137 of the Código de Comercio, falls within the exclusive competence of the General Assembly of Shareholders and requires the affected shareholder's consent under Article 155.
Failure to fulfill condition precedent. Lisa argued that La Perla had not complied with its obligation under the Ley de Extinción de Dominio (Decree 55-2010) to convert Lisa's bearer shares to registered shares and file the corresponding notice. Without that conversion, the prescription period had not begun to run.
Failure to fulfill time requirement. Lisa argued that prescription had been interrupted on two grounds. First, La Perla's own General Assembly resolved to exclude Lisa as a shareholder in 2011, instructing the administration to liquidate Lisa's share, including dividends, which constituted an express recognition of Lisa's rights under Article 1506(2) of the Código Civil. Second, Lisa's summary opposition proceeding against the exclusion resolution interrupted prescription under Article 1506(1). Lisa emphasized that Avícola Group entities maintained active embargoes on its dividends, preventing collection, and were now seeking to declare prescribed the very obligation they themselves had blocked.
This argument reveals a pattern of abuse of legal process: the Avícola Group embargoed Lisa's dividends, prevented collection, and then brought a prescription action to extinguish the same obligation whose fulfillment it had obstructed through embargoes and shareholder exclusion proceedings.
The court examined Clause Twenty-Eight of La Perla's articles of incorporation and determined that La Perla's claim, seeking to extinguish the dividend payment obligation by prescription, constitutes a dispute arising from the corporate charter. The analysis rested on three grounds:
Validity of the arbitration clause. The certified copy of Public Deed No. 71 carries full evidentiary value under Article 186 of the Código Procesal Civil y Mercantil, having been notarized and not challenged for nullity or falsity.
Connection between dividends and the corporate charter. Clause Twenty-Five of the same instrument governs the distribution of profits and the manner of dividend payment. Since the lawsuit sought to extinguish that payment obligation, the arbitration clause applied.
Pacta sunt servanda. Under Article 1519 of the Código Civil, the parties are bound to honor their contractual commitments. Clause Twenty-Eight subjects the parties to arbitration. Lisa complied with Article 11(1) of Decree 67-95 (Arbitration Law), which provides that an arbitration agreement bars ordinary courts from hearing disputes submitted to arbitration when the interested party raises the exception of lack of jurisdiction.
The court implicitly rejected La Perla's argument that prescription is a purely statutory institution unrelated to the corporate charter, concluding that the controversy arises from corporate activities governed by the charter itself.
Under Article 121 of the Código Procesal Civil y Mercantil, having upheld the jurisdictional exception, the court declined to rule on the remaining exceptions.
No judge is identified by name in the text of the ruling.
Compañía Importadora La Perla, S.A. appealed the ruling. The First Chamber of the Civil and Commercial Court of Appeals ruling of March 1, 2021 denied the appeal, affirmed the first-instance order, and condemned La Perla to pay the procedural costs of the second instance.