Inversiones Torre Nova 2012 Dividend Prescription Action Dismissed on Jurisdiction

I. Ordinary Action and Incompetence Exception

Inversiones Torre Nova, S.A. filed an ordinary action for extinctive, negative, or liberatory prescription against Lisa, S.A., seeking a declaration that the obligation to pay dividends decreed at the annual ordinary general shareholders' assembly of May 24, 2012 had prescribed. Torre Nova alleged that five years elapsed without Lisa collecting the dividends.

Lisa, S.A. raised preliminary exceptions of incompetence, defective complaint, lack of standing in the plaintiff, failure to fulfill the condition to which the asserted right is subject, and failure to fulfill the term to which the asserted right is subject. The central basis for the incompetence exception was clause twenty-five of public deed number 89, executed on August 17, 1999 before notary Héctor René López Sandoval, which provides that disputes between the company and its shareholders arising from the corporate charter or corporate activities must be resolved through equity arbitration under the Arbitration Law and the Conflict Resolution Commission of the Chamber of Industry of Guatemala.

On December 3, 2019, the Eleventh Civil Court of First Instance upheld the preliminary exception of incompetence and declined to rule on the remaining exceptions, directing the parties to equity arbitration under Torre Nova's corporate charter.

Torre Nova's claim as a mechanism to extinguish dividends owed. The extinctive prescription action sought to eliminate through litigation the obligation to pay dividends owed to Lisa, S.A. This claim is part of the pattern of legal actions filed by entities in the Avícola Villalobos Group aimed at preventing Lisa from exercising its shareholder rights and collecting the dividends to which it is entitled.

II. Appeal Before the First Chamber of the Court of Appeals

Appeal Ruling

Torre Nova appealed the first-instance ruling on two central grounds: first, that Guatemalan courts are competent to hear claims against Lisa, S.A. under Article 34 of the Judiciary Act, given that Lisa has performed legal acts in Guatemalan territory despite being incorporated in Panama; second, that the extinctive prescription claim is grounded in the Civil Code and does not constitute a "dispute" between shareholder and company requiring arbitration.

Lisa, S.A. clarified that the incompetence exception was raised on the basis of subject matter, not territory, contradicting Torre Nova's framing. Lisa invoked the principle of pacta sunt servanda (Article 1519, Civil Code) and Article 11 of Decree 67-95, which bars courts from hearing actions subject to arbitration when the interested party raises the incompetence exception.

The First Chamber of the Court of Appeals, Civil and Commercial Division, in its ruling of February 5, 2021, dismissed the appeal and confirmed the first-instance ruling. The Court examined public deed number 89 under Article 186 of the Code of Civil and Commercial Procedure, verified that clause twenty-five establishes equity arbitration as the mandatory mechanism, and cited Constitutional Court jurisprudence (Case No. 387-2010) on party autonomy in arbitration and the displacement of judicial competence to the arbitrator. The Court condemned Torre Nova to costs.

III. Amparo Before the Supreme Court and the Constitutional Court

Amparo Ruling

Torre Nova filed a constitutional amparo against the appellate ruling, alleging violation of its rights to equality and effective judicial protection. The Supreme Court of Justice, Chamber of Amparo and Impeachment, denied the amparo as manifestly inadmissible on February 1, 2022. Torre Nova appealed to the Constitutional Court.

The Constitutional Court, in its ruling of September 20, 2022, denied the appeal and upheld the denial of amparo. The Court acknowledged that Guatemalan courts are competent to summon Lisa, S.A. under Article 34 of the Judiciary Act, but clarified that the challenged ruling was not based on territorial competence but on the arbitration clause. It determined that Torre Nova's claim is commercial in nature, involving commercial legal entities in a dispute over prescription of a dividend payment obligation arising from their commercial relationship. Citing its own precedent of May 28, 2020 (Case No. 4181-2019), in a similar dispute between Escobio, S.A. and Lisa, S.A., the Court confirmed that Article 1039 of the Commercial Code provides that commercial actions must proceed through summary proceedings unless the parties have agreed to submit their disputes to arbitration.

The Court noted that Torre Nova replicated in amparo the same arguments it raised before the ordinary courts, seeking to use the constitutional guarantee as a reviewing instance, which is impermissible under Article 211 of the Constitution. It fined attorneys David Erales Jop and Erick Efrén Pérez Martínez Q1,000.00 each.

Lisa, S.A. succeeded in having the extinctive prescription claim over dividends definitively excluded from the ordinary courts, requiring it to proceed solely through arbitration under Torre Nova's corporate charter.