May 6 2020
8th Civil Court
Inversiones Empresariales, S.A. filed an ordinary claim for extinctive, negative, or liberatory prescription of the obligation to pay dividends against Lisa, S.A. The court admitted the claim through the ordinary procedural track by decree of February 24, 2017. Lisa filed a motion for revocation (recurso de revocatoria) arguing that the correct procedural track was the summary proceeding (juicio sumario), pursuant to Article 1039 of the Commercial Code and Clause Twenty-Five of the articles of incorporation of Inversiones Empresariales, which establishes a submission clause requiring disputes between the company and its shareholders to be resolved through summary proceedings.
The court denied the revocation on December 6, 2018. Lisa filed an amparo before the Second Chamber of the Court of Appeals for Civil and Commercial Matters, sitting as an amparo tribunal. On appeal, the Constitutional Court ruled on October 17, 2019, declaring Lisa's appeal well-founded, granting the amparo, and ordering the court to issue a new resolution consistent with its findings. The court received the ejecutoria on May 5, 2020.
The court reproduces at length the Constitutional Court's reasoning, which determined that the extinctive prescription claim over dividends is mercantile in nature, as it involves mercantile legal entities in a dispute centered on dividend payments to shareholders. The Constitutional Court held that Article 1039 of the Commercial Code prescribes that actions arising from the application of that statute must be processed through summary proceedings.
Lisa argued, and the Constitutional Court agreed, that Clause Twenty-Five of the articles of incorporation of Inversiones Empresariales (public deed number sixteen, dated March 6, 1984) contains a submission clause mandating that disputes between the company and its shareholders be resolved through summary proceedings before the ordinary courts. In its reproduced reasoning, the court records that the underlying dispute concerns Lisa's right to the dividends that the company has failed to pay it since 1999, the very obligation that Inversiones Empresariales now seeks to extinguish through prescription. Lisa maintained that admitting the claim through the ordinary track violated due process and the principle of legal certainty, citing Constitutional Court precedent (cases 1258-00 and 1311-2000) on the obligation of authorities to respect the applicable legal framework.
The Constitutional Court concluded that the judge, by denying the revocation without legal basis and merely stating that the claim should proceed through the ordinary track, violated Lisa's right to effective judicial protection (tutela judicial efectiva).