Exp. 01161-2018-00566

I. Ordinary Action and Incompetence Exception

Relying on the ordinary general shareholders' assembly of May 24, 2012, Inversiones Torre Nova, S.A. filed an ordinary action for extinctive, negative, or liberatory prescription against Lisa, S.A., asking the court to declare that the obligation to pay the dividends decreed at that assembly had prescribed because five years had elapsed without Lisa collecting them.

Lisa, S.A. answered with 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 requires that disputes between the company and its shareholders arising from the corporate charter or corporate activities 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 incompetence exception, declined to rule on the remaining exceptions, and directed 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. The claim forms part of the pattern of actions filed by entities in the Avícola Villalobos Group to prevent 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

Torre Nova appealed on two central grounds: that Guatemalan courts are competent to hear claims against Lisa, S.A. under Article 34 of the Judiciary Act, because Lisa has performed legal acts in Guatemalan territory despite being incorporated in Panama; and 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. countered that the incompetence exception had been raised on the basis of subject matter, not territory, and invoked the principle of pacta sunt servanda (Article 1519, Civil Code) together with Article 11 of Decree 67-95, which bars courts from hearing actions subject to arbitration once the interested party raises the incompetence exception.

The First Chamber of the Court of Appeals, Civil and Commercial Division, dismissed the appeal and confirmed the first-instance ruling in its <doc id="gua-01161-2018-00566-2021-02-05-a" /> of February 5, 2021. Examining public deed number 89 under Article 186 of the Code of Civil and Commercial Procedure, the Chamber 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 Chamber condemned Torre Nova to costs.

III. Amparo Before the Supreme Court and the Constitutional Court

Torre Nova then 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, and Torre Nova appealed to the Constitutional Court.

The Constitutional Court denied the appeal and upheld the denial of amparo in its <doc id="gua-01161-2018-00566-2022-09-20-a" /> of September 20, 2022. 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 rested not on territorial competence but on the arbitration clause. It characterized Torre Nova's claim as commercial in nature, involving commercial legal entities in a dispute over prescription of a dividend payment obligation arising from their commercial relationship, and, citing its own precedent of May 28, 2020 (Case No. 4181-2019) in a similar dispute between Escobio, S.A. and Lisa, S.A., confirmed that Article 1039 of the Commercial Code requires commercial actions to proceed through summary proceedings unless the parties have agreed to arbitration. The Court found that Torre Nova had replicated in amparo the same arguments raised before the ordinary courts, improperly using the constitutional guarantee as a reviewing instance contrary to Article 211 of the Constitution, and fined attorneys David Erales Jop and Erick Efrén Pérez Martínez Q1,000.00 each.

Lisa, S.A. secured the definitive exclusion of the extinctive prescription claim over its dividends from the ordinary courts, leaving Torre Nova to proceed, if at all, solely through equity arbitration under its own corporate charter.