Sustains lack of jurisdiction, refers Torre Nova's dividend prescription claim to arbitration
Sep 13 2024
6th Civil Court
The Sixth Pluripersonal Civil Court of First Instance of Guatemala sustained the preliminary exception of lack of jurisdiction filed by Lisa, S.A. and declined to hear the summary prescription action brought by Inversiones Torre Nova, S.A. over unpaid dividends. The court held that the arbitration clause in Torre Nova's articles of incorporation requires shareholder disputes to be resolved through equity arbitration, divesting the civil court of jurisdiction. Lisa's second exception, concerning embargoes that prevent dividend collection, was left unresolved because the jurisdictional ruling was dispositive.
Inversiones Torre Nova, S.A. filed a summary proceeding against Lisa, S.A. seeking a declaration that the obligation to pay 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.
Exception of lack of jurisdiction. Lisa based this exception on Clause 25 of Public Deed No. 89, executed on August 17, 1999, before Notary Héctor René López Sandoval, through which Inversiones Torre Nova, S.A. was incorporated. The clause provides:
"Las diferencias que surjan entre la sociedad y los accionistas, o solo entre éstos con motivo o que resulten de la escritura social o de las disposiciones sociales, que no puedan ser resueltas en forma directa, serán dirimidas en juicio Arbitral de equidad, conforme a las normas y procedimientos de la Ley de Arbitraje y Comisión de Resolución de Conflictos de la Cámara de Industria de Guatemala." (Page 7)
Lisa argued that the prescription claim over dividends derives directly from the articles of incorporation, making the arbitration clause binding under Article 11 of the Arbitration Law, which bars courts from hearing disputes subject to an arbitration agreement.
Exception of lack of condition. Lisa argued that Inversiones Torre Nova is legally prevented from claiming prescription because multiple courts have ordered embargoes on dividends, profits, and liquidation proceeds owed to Lisa. According to Lisa, on December 31, 2018, it requested payment of dividends owed and Torre Nova responded that it could not pay because prior embargo orders issued by competent courts prohibited it. Lisa contended that before Torre Nova can seek prescription of dividend obligations, the embargoes weighing on those funds as precautionary measures must first be lifted, since the Manager or Administrator serves as judicial depositary of the embargoed funds.
Torre Nova argued that Guatemalan courts have jurisdiction over claims against Lisa despite its incorporation under Panamanian law, citing Constitutional Court precedent and Article 34 of the Judiciary Act. On the embargo exception, Torre Nova contended that precautionary measures do not interrupt prescription and that, even if they had interrupted it under Article 1507 of the Civil Code, the five-year period would have run anew from the date of the measures without Lisa claiming payment.
The court addressed the jurisdictional exception first, as procedural law requires. After examining Clause 25 of Public Deed No. 89, the court found the arbitration clause unambiguous: disputes arising from the articles of incorporation and corporate activities must be resolved through equity arbitration. The court determined that the prescription of dividend payment obligations is a dispute arising from the articles of incorporation. Because Torre Nova failed to present a congruent counterargument or evidence rebutting the arbitration clause, the court sustained the exception of lack of jurisdiction.
Having sustained the jurisdictional exception, the court declined to address the exception of lack of condition, reasoning that the referral to arbitration precluded further adjudication. Lisa's arguments regarding embargoes preventing dividend collection, including the existence of embargo orders from multiple courts and the administrator's status as judicial depositary, were left without judicial resolution.