Data
- Date:
- 12-01-2023
- Country:
- Chile
- Number:
- 2617-2020
- Court:
- Corte Suprema de Justicia de Chile
- Parties:
Keywords
PUBLIC TENDER ANNOUNCED BY A CHILEAN REGION - REFERENCE TO THE UNIDROIT PRINCIPLES IN ORDER TO INTERPRET AND SUPPLEMENT APPLICABLE CHILEAN LAW
ARBITRARY DECISON TO DECLARE VOID THE BIDDING PROCEDURE - CHILEAN REGION SENTENCED TO COMPENSATE FOR LOSS OF CHANCE - REFERENCE TO ART. 7.4.3 UNIDROIT PRINCIPLES IN ORDER TO QUANTIFY THE LOSS OF CHANCE
Abstract
The dispute arose from the arbitrary decision taken by Defendant, the Region of Valparaíso, to declare void the call for tender announced for the improvement of the Quillota trunk road, which should have been awarded to Claimant. The first instance court held that Defendant was responsible for the loss of chance that Claimant suffered by having been in first place in the evaluation of the proposal abruptly terminated by the Defendant.
Since the concept of loss of chance is not defined in Chilean law, the Supreme Court referred to art. 7.4.3 UNIDROIT Principles in order to "codify" what is expressed in similar terms by Chilean doctrine and jurisprudence.
By applying these principles, the Supreme Court decided that, if the call for public bidding had not been illegally declared void, Claimant would have had the possibility of having been awarded the bidding since he was the best evaluated opponent. Therefore, the Court reformed the First instance ruling and condemned Defendant to pay, as damages, 7% of the expected profit since Defendant called for a new contest where Claimant was able to participate on equal terms with the remaining opponents.
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