Data

Date:: 27-12-2021
Country:: Panama
Number:: --
Court:: Supreme Court of Justice of Panama
Parties:: IMPORTADORA RICAMAR, S.A. vs. MARKETEC Targeted Solutions, S.A.

Keywords

LONG-TERM CONTRACTS - SERVICE CONTRACT FOR "SMART COUPONING" (PROMOTIONAL MARKETING TECHNOLOGY SERVICES) - BETWEEN A COMPANY INCORPORATED UNDER THE LAWS OF ARGENTINA AND A PANAMANIAM COMPANY - SILENT AS TO APPLICABLE LAW

ARBITRATION CLAIM BEFORE THE PANAMANIAN CENTER FOR CONCILIATION AND ARBITRATION (CECAP) - ARBITRAL TRIBUNAL APPLIED GENERAL PRINCIPLES OF INTERNATIONAL CONTRACT LAW - REFERENCE TO UNIDROIT PRINCIPLES - AWARD CONFIIRMED BY THE SUPREME COURT OF PANAMA SINCE THERE WAS NO VIOLATION OF PUBLIC POLICY

INTERPRTETATION OF CONTRACT - TAKING INTO CONSIDERATION THE SUBSEQUENT CONDUCT OF THE PARTIES - REFERENCE TO ART. 4.1.3 UNIDROIT PRINCIPLES IN ORDER TO SUPPORT THE APPLICATION OF THE DOCTRINE OF VENIRE CONTRA FACTUM PROPRIUM AND CONFIRM THE VALIDITY OF THE CONTRACT, SINCE THE COUNTERPARTY HAD EXECUTED AND ACCEPTED ITS EFFECTS WITHOUT SUBSTANTIAL OBJECTION FOR A LONG PERIOD

REFERENCE BY ONE OF THE PARTIES ALSO TO ARS. 4.1, 4.2, AND 4.8 OF THE UNIDROIT PRINCIPLES, ALTHOUGH NOT EXPRESSLY CITED IN THE AWARD

Abstract

The dispute arose from the "Smart Couponing" contract entered into between MARKETEC Targeted Solutions, S.A., a company incorporated under the laws of Argentina, and IMPORTADORA RICAMAR, S.A., a Panamanian company that operates the Súper 99 supermarket chain. The contract was for supply of digital and physical promotional marketing technology services by MARKETEC in the Panamanian chain's stores.

After alleging breaches of contract by IMPORTADORA RICAMAR, MARKETEC filed an arbitration claim before the Panamanian Center for Conciliation and Arbitration (CeCAP), seeking payments owed for services rendered and reimbursements for technological investments associated with the contract. The Arbitral Tribunal considered as proven RICAMAR's breaches and ordered it to pay more than $84,000, plus interest and costs.

In its reasoning, the arbitral tribunal based a great part of its decision on general principles of international contract law. In particular, it expressly quoted Article 4.3 of the UNIDROIT Principles, which establishes that, in interpreting the parties' intentions ,the conduct of the parties subsequent to the conclusion of the contract must be taken into consideration, among other things. The tribunal used this provision to support the application of the doctrine of venire contra factum proprium and dismiss subsequent allegations of invalidity of the contract by RICAMAR, which had executed and accepted its effects without substantial objection for a long period.

Furthermore, during the arbitration proceedings and subsequently in its opposition to the annulment action, the claimant argued that the arbitration should be interpreted in light of international standards of good faith, free will, and reasonableness, also invoking Articles 4.1, 4.2, and 4.8 of the UNIDROIT Principles, although these were not expressly cited in the award.

IMPORTADORA RICAMAR filed an appeal for annulment against the award before the Supreme Court of Panama, invoking MARKETEC's alleged legal incapacity at the time of signing the contract, the arbitral tribunal's lack of jurisdiction due to ambiguity in the arbitration clause, and the award's contradiction with international public policy.

The Court, however, rejected the annulment arguments. It held that MARKETEC had acquired legal capacity at the appropriate time, that the arbitral tribunal acted on the basis of a valid clause that sufficiently identified CeCAP as the designated center, and that there was no violation of public policy. It emphasized that the sustained performance of the contract and the parties' submission to the arbitration procedure demonstrated the existence of a clear and effective agreement.

In conclusion, the Court declared the arbitral award valid and rejected the appeal for annulment, reaffirming the autonomy of contractual will and the complementary application of international principles such as UNIDROIT regarding contractual interpretation.

Interesting excerpts:

The party opposing the annulment action did base its defense on these principles, particularly with regard to the interpretation of the contract and the subsequent acts of the parties:
“…the interpretation of the contract is subject to these principles and reflects Articles 4.1, 4.2, 4.3, and 4.8.”

Furthermore, the principle of proper acts (venire contra factum proprium), linked to Article 4.3 UNIDROIT, was invoked as a legitimate limitation to the annulment action:
“…the waiver of the right to object […] goes hand in hand with the Principle of proper acts (venire contra factum proprium), […] closely related to good faith.”

The Court, although not expressly citing the UNIDROIT Principles, accepts the validity of the reasoning based on the good faith and will of the parties, principles that reflect the philosophy of the UNIDROIT and are set forth in Article 1109 of the Panamanian Civil Code:
“Contracts are perfected by the mere consent and from then on they oblige, not only to the fulfillment of what was expressly agreed, but also to all the consequences that, according to their nature, are in accordance with good faith, usage and the law.”

English translation of the Spanish abstract written by Marta Ríos Barbero for CISG Spain.

Fulltext

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Source

Abstract and fulltext in Spanish:
- available at the University of Carlos III website, http://www.cisgspanish.com}}