Litigation 2019 Second Edition

Last Updated December 05, 2019

Guatemala

Law and Practice

Authors



Legalsa is a team of more than 20 driven and highly responsive lawyers with more than 20 years of experience. The firm is fully committed to advancing and defending clients’ interests at the negotiating table, at government institutions and regulatory agencies, and in courts and arbitration forums, both local and international. The firm can provide comprehensive legal services for all types of business. It has been particularly successful in dispute resolution (including complex litigation and arbitration), banking law, intellectual property (including IP litigation), administrative law related to government bids and concessions, and estate planning. The firm has advised big companies in Guatemala and the region in their intercorporate disputes in the areas of agribusiness and banking, among others, as well as dispute resolution involving white-collar criminal conflicts and administrative issues.

Guatemala's legal system is mainly based on civil law, with certain elements from other legal systems, such as binding constitutional jurisprudence from the Constitutional Court for lower courts. Regarding procedural law, the system varies depending on the branch of law to which it pertains. Civil and criminal procedures follow a largely adversarial model, with some inquisitorial characteristics. On the other hand, constitutional and family procedures follow a mixed model, with the relevant tribunal having several inquisitorial powers in order to protect a person’s human or family rights.

Legal processes do not only differ according to the relevant branch of law, but also according to the type of claim. For example, civil procedures are conducted primarily through written submissions that must comply with stringent formalities, but there are oral trials for specific claims, such as the division of goods in co-ownership, where the process is more dependent on oral submissions. Labour and criminal proceedings, on the contrary, are mainly conducted through oral arguments and are guided by principles of simplicity, immediacy, and celerity. Constitutional procedures mainly utilise written submissions, but the litigants are given the right to ask for a public hearing.

The structure of the Guatemalan court system is set up under the Supreme Court of Justice, which is vested with jurisdiction throughout the country. The system is arranged as follows, from the highest to the lowest levels:

  • the Supreme Court of Justice, with three different chambers (Criminal, Civil, and Impeachment and Amparo Chambers), composed of 13 magistrates;
  • the Courts of Appeals, where hearings are held before three judges, organised by matter as follows:
    1. Civil and Commercial;
    2. Criminal, Narcotics and Environment;
    3. Labour and Social Security; and
    4. Family;
  • the First Instance Courts, where hearings are held in most cases by one judge, organised by matter, as follows:
    1. Civil;
    2. Criminal, Narcotics and Environment;
    3. Labour and Social Security; and
    4. Family;
  • the Minor Courts, where hearings for small claims and personal disputes are held before one judge, organised by matter as follows:
    1. Civil;
    2. Criminal, Narcotics and Environment;
    3. Labour and Social Security; and
    4. Family.

Guatemala is divided into 22 departments which are in turn divided in 340 municipalities, so it is common for there to be, in some departments and municipalities, certain courts that have several different subject matters under their jurisdiction.

An independent Constitutional Court, chaired by five judges and five deputy judges, is responsible for hearing cases involving appeals, amparos, habeas corpus, and unconstitutional actions. Though the Constitutional Court is not part of the common court system, it can hear appeals from – and even overturn rulings by – the Supreme Court of Justice or other courts, on constitutional matters.

All the proceedings in Guatemala are deemed public, with a few exceptions established by law. In criminal cases, for example, the court or the parties may require the hearing to be private for one of the following reasons:

  • when modesty, life, or the physical integrity of one of the parties could be impacted;
  • when the hearing is deemed to have a severe impact on public order or state security;
  • when the hearing may impact or endanger an official, private, commercial or industrial secret whose undue disclosure is punishable by the law;
  • when the law specifically states that the hearing must be private in nature; and
  • when a minor is cross-examined, if the court deems the public nature of the hearing to be objectionable because it may endanger the minor.

Notwithstanding the foregoing, most of the procedural actions during the process are deemed private, and therefore closed to external parties. However, the hearings, such as the evidence stage and last hearings requested by the parties, are deemed to be of a public nature.

Any person who is to appear in court, as plaintiff or defendant, must do so through their lawyer, who must be an authorised attorney before the Supreme Court of Justice. In order to be authorised as a lawyer of the Republic of Guatemala, it is necessary to have degree (licenciatura) as an attorney from a Guatemalan university.

If the attorney holds a degree from an international university, it must be validated by the Universidad de San Carlos de Guatemala (the public university), and the attorney must then present extensive documentation regarding their conduct and background to the Supreme Court of Justice. After meeting the different requirements, the attorney may be authorised to act in court. If they do not go through this process, they are not allowed to represent any of the parties involved in a judicial process.

There is no third-party funding for litigation before Guatemalan courts. This practice can only be found in arbitration, but arbitral tribunals in Guatemala are not part of the justice system as such.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

There is no regulation in Guatemala, on pre-action conduct.

According to the Guatemalan Civil Code, the statute of limitation applicable to civil suits varies depending on the civil matter in question, as follows: one year for torts and damages; two years for fees for any service, unpaid invoices, rents, allowances, etc; and three years for an account rendered. For other undetermined cases, there is a five-year statute of limitations.

It is triggered from the day on which the legal action can be initiated, and can be interrupted by different actions, such as validly serving a lawsuit.

It is a general rule that the plaintiff must sue the defendant in the court which has jurisdiction at the address of the latter. However, the parties may agree to submit their dispute in a specific jurisdiction. If the court where the lawsuit will take place considers that it is not competent to try the case – due to reasons of matter, degree, value or territory – it can refer the brief of the case to the judge it considers to be competent to take it. The defendant may also invoke this lack of competence.

The initial complaint in a civil procedure is subject to stringent requirements that must be met in order not only for it to be accepted by the judge or tribunal, but also to avoid preliminary objections by the counterparty. It is presented in written form and must include:

  • the competent tribunal to which it is being presented;
  • the name, age, civil status, nationality, profession, domicile and address for receiving notifications of the claimant;
  • the specific facts of the claim;
  • the legal grounds that form the basis for that claim, citing the statutes and regulations;
  • the complete name and domicile of the respondent;
  • the petition or request for findings;
  • the date and place; and
  • the necessary signatures.

As long as the respondent does not present preliminary objections (dilatory defences) or their statement of defence (response), the claimant is allowed to amend the document.

There are different procedures for informing an adversary that is being sued. The first notification (generally the serving of the lawsuit) must always be done personally at the address given by the complainant. This responsibility falls on the court, but the complainant can ask to appoint a notary, whose costs are borne by the complainant, to notify their adversary. In their first written submission, the respondent must establish an address at which to be notified. If they fail to do so or give an address outside the legal perimeter of the court, the notification will be placed within the court and it is understood that the person is served two days after this happens.

The Code of Civil and Commercial Procedure and some regulations by the Supreme Court of Justice contain other forms of service. There can be service by electronic means, where the person has a virtual locker where they receive the notification. Service can also be performed by an edict of government, which must usually be published in the official journal and another leading newspaper in the country, or through a specific web portal created for this purpose. Finally, it can also be done through a judicial bulletin, which is utilised when there is a large amount, or an undetermined number, of respondents.

It is possible to sue outside Guatemalan jurisdiction, if the claim is related to acts or transactions done in Guatemala, to goods located in Guatemala or to acts or transactions for which the parties have submitted to the Guatemalan national courts. To do this, a letter rogatory is utilised via the Supreme Court of Justice.

In civil, commercial and family matters, the consequences of a failure to respond differ depending on whether it is a regular process or an execution proceeding. In the former case, at the request of a party, the defendant's default is declared by the judge and the proceedings must continue on the presumed basis that the defendant has presented a statement of defence. The defendant in these cases can appear in the process at any stage but cannot make requests whose deadlines have passed. In the latter case, in the absence of a response to the application, the judge is obliged to deliver a judgment.

In criminal matters, the failure of the defendant to present themselves following a summons may lead to the ordering of immediate detention. It is not possible to conduct a criminal trial in absentia.

In labour matters, default operates for both sides; however, if the employer is missing, the worker’s petitions must be granted in the judgment.

There is no regulation for collective actions such as class actions in Guatemala. However, Guatemalan law does allow for joinders (litisconsorcios). This refers to situations in which a group of persons are required to start one single proceeding, for instances in which a decision has to be made taking them all into consideration (compulsory joinder or litisconsorcio necesario), or in which there is a connection between the object or legal title being disputed or the decision relates to identical matters (voluntary joinder or litisconsorcio voluntario). In the case of compulsory joinder, all parties must appear before the court; if one of them is missing, the tribunal must summon the rest of them. In both compulsory and voluntary joinders, the plaintiffs must name a common representative and if they do not, the judge will appoint one.

There is generally no requirement for a cost estimate. However, the Code of Ethics of the Guatemalan Bar (Colegio de Abogados y Notarios de Guatemala) dictates that a lawyer should estimate his or her fees according to, among other things, the value and merit of a case; his or her experience, reputation and specialty; and his or her clients economic possibilities.

In Guatemala, the only interim applications known are precautionary measures or injunctions to ensure the outcome of the process. These can be filed by the plaintiff before the trial.

There is no process or procedure through which any party may apply for early judgment on some or all of the issues in dispute, unless there is an actual confession by the defendant. In this case, the law states that a judgment has to be issued by the court granting all the petitions of the claimant.

The court, without the intervention of the defendant, has the power to reject the application on formal grounds, making the claim inadmissible.

In Guatemala, there are no dispositive motions that can dismiss procedural issues nor motions for summary judgment as in common law legal systems. The only similar mechanisms contemplated within the Guatemalan Code of Civil and Commercial Procedure are preliminary objections.

The Guatemalan Code of Civil and Commercial Procedure gives some procedural defences (excepciones previas) with which a party can seek to dismiss the trial before a definite ruling. These dilatory defences may challenge, among other things, the competence or jurisdiction of the court, lis pendens, formal defects in the lawsuit and the statute of limitations. If the court finds for the respondent for any preliminary objection, the trial ends without a final ruling.

Interested parties not named as plaintiffs can join a lawsuit as third parties. Legislation allows for two types of third parties: voluntary and opposing. Voluntary third parties can join a lawsuit to support either the complainant or the respondent (tercería coadyuvante), or even to take their place. If there has been no final ruling, they can appear at any stage of the procedure and be part of the remainder of the process. Opposing third parties have the sole purpose of claiming a property, or preference rights. If admitted, they have the opportunity to prove it and then the judge decides on their claim. All third parties are required to express their specific and certain interest in the matter.

Third parties can appear on their own or can be called upon by the complainant or respondent. The judge will decide whether or not they should be part of the procedure as an adjuvant. Opposing third parties cannot be called upon by the plaintiff or respondent.

Please refer to 3.7 Representative or Collective Actions for information on the joinder of third parties, taking into consideration that it is allowed not only for the claimant's side but also the respondent’s.

While a party can ask for any type of interim relief, security for costs is not expressly provided within Guatemalan legislation and it seems improbable that it would be considered within the regulation pertaining to injunctions.

As indicated in 4.1 Interim Applications/Motions, in Guatemala precautionary measures or injunctions may be requested before the trial or alongside the lawsuit. These applications have no cost per se, but, for the judge to grant the injunction before the trial, the plaintiff must guarantee the damages and costs that the action could cause the defendant. This ranges from 10-20% of the total value of the litigation. In the event that the value of the litigation is indeterminate; the judge shall establish the amount to be guaranteed.

Legally, decisions on interim applications/motions should be issued within 24 hours of the request, however, this period is not particularly respected by the court and it may take up to a week to receive a decision. In a civil procedure, a party cannot request that a motion be dealt with on an urgent basis.

In civil and commercial disputes, the parties can ask to produce evidence prior to the trial. This process is called proceso de prueba anticipada, which would translate to early-proof/evidence proceedings or anticipatory evidence. The process is analogous to the production of pretrial evidence and seeks to allow a person to produce evidence prior to lodging a lawsuit, primarily because of the risk of that evidence being destroyed, tampered with, or becoming unavailable. The most common types regulated in the Code of Civil and Commercial Procedure are:

  • Sworn statements of any of the parties – the judge sets a date and time for the party to appear to provide their statement.
  • Document exhibition – the petitioner must present proof that the document exists and of its contents, the judge, then, determines whether the document should be exhibited by the respondent or not.
  • Exhibition of ledgers and business records – a hearing is set for the party to exhibit them before the judge.
  • Judicial inspection – the judge inspects things that might disappear in the short term, when there is risk of their deterioration or ruin, or when their conservation is extremely difficult.
  • Witness statements – if the witness is gravely sick, of advanced age or likely to be absent from the country.

As a conclusion, we must state that discovery (in the common law sense) does not exist in Guatemala and that these processes are an alternative to it.

In Guatemala it is possible to request a judicial inspection of, or a witness statement from, third parties not named as plaintiff or claimant. However, the plaintiff must state the facts he or she wants to prove, based on the evidence found in that inspection or statement, and the judge must set a hearing to take the evidence.

Guatemalan legislation does not require the disclosure of documents by the parties, aside from the prueba anticipada stated discussed in 5.1 Discovery and Civil Cases.

The evidence is provided by the parties within the process itself, either with the presentation of the claim or with its response.

Guatemalan legislation regulates professional secrecy in the Professional Ethics Act, the Civil Code and the Criminal Code, which state that an attorney shall not reveal information that he or she learned while exercising his or her professional duties. Failure to keep professional secrecy is a criminal act punished by law. It also gives the client the right to file a claim for damages.

In our opinion, attorney-client privilege is also applicable to in-house attorneys-at-law since the attorneys-at-law enter into a contract for the provision of professional services, and, therefore, may not disclose information gathered in the performance of their profession.

Banking, mail and tax, earnings and costs secrecy, as well as legal privilege, allow a party to not disclose a document. There are no other rules permitting a party not to do so.

Parties can ask for injunctive relief either before suing or in the course of their lawsuit. To be awarded injunctive relief a party must meet two requirements. First, there must be periculum in mora, meaning that there is a risk of the proceedings being endangered to the extent that the ruling would be ineffective if the injunction is not granted. Second, there has to be fumus boni iuris, which refers to a prima facie case that proves that there is a likelihood of success.

While the Code of Civil and Commercial Procedure does enumerate various injunctions, this list is not exhaustive, which means that a party could ask for any type of action necessary to protect the proceeding. Those listed in the legislation are:

  • arraigo – which seeks to guarantee that the respondent or a proxy will be present throughout the procedure;
  • seizure, sequestration or freezing of assets – which seek to guarantee the payment at the end of the proceeding;
  • lawsuit annotation – which seeks to create an annotation in the public register of a specific property or asset to let third parties know that there is a dispute concerning it and which, once made, ensures that any selling or levy made by the respondent has no effect before the complainant;
  • intervention – which seeks to appoint a controller or auditor to administer a business or group to ensure the payment at the end of the proceedings by depositing the money in an account for that purpose; and
  • emergency orders – which are catch-all injunctions that allow the solicitor to request any type of injunction needed to guarantee the outcomes of the process

In Guatemala, on average, it takes between one and two weeks to obtain injunctive relief.

Injunctive relief is always obtained on an ex parte basis, under the principle of inaudita altera pars.

If the injunction is requested before lodging the lawsuit, the requesting solicitor needs to provide a guarantee for the costs and damages. If it is requested alongside the lawsuit, there is no obligation to provide any guarantee; however, the respondent can ask the judge for one. If the plaintiff does not comply, the judge must revoke the injunction.

In Guatemala, there is no regulation that allows the defendant's global assets to be affected by a precautionary measure, only those that are within the national territory, under the principle lex rei sitae.

Injunctive relief can only be obtained against the party who is being sued.

Most injunctions do not depend on the will of the respondent, so it’s irrelevant whether they want to comply or not. In the case of those injunctions that do, failing to comply would lead to the person not complying being held in contempt of court.

Most civil proceedings are conducted in writing; however, there is an oral process for specific claims, in which the lawsuit and also the motions and arguments of the parties can be submitted in either written or oral form.

With regard to evidence, most civil proceedings have an evidentiary stage during which the parties may propose the means of proof permitted by law. The Code of Civil and Commercial Procedure has an exhaustive list of permitted evidence and the requisites that they must satisfy in order to be admitted.

If the presence of the other party is necessary, or a witness or expert opinion is required, the court schedules a hearing for this. Cross-examination in civil procedures, as understood in common law systems, does not exist in Guatemala, as the questions are posed mainly by the judge.

Each court has a calendar of hearings, which is generally designated according to the order in which the demands are admitted. Legally there is no way to expedite the hearings. Case management hearings do not exist in Guatemala.

No jury trials are available in civil cases.

The Guatemalan Code of Civil and Commercial Procedure provides specific rules and principles for the proposal, submission, and assessment of each type of evidence. The first and most important principle states that the party who makes an argument is obliged to prove it. Based on this principle, according to the law, plaintiff and defendant must offer all the evidence that will be submitted in the trial when filing the lawsuit or when answering it. If a party does not have the required proof at that moment, it is imperative to individualise it as best as possible in order to be able to present it at the evidentiary phase of the trial. 

The court may reject evidence prohibited by law or proposed solely for the purpose of delaying the process.

Expert testimony is not permitted at trial, but expert opinions may be filed in writing as evidence during the trial. This requires a specific procedure in which the interested party proposes an expert and the other party may also propose one or adhere to a sole expert. If each party proposes an expert, the judge names a third one. Each one provides their expert opinion.

It is a principle of the courts that procedures are only open to the interested parties. However, there are certain hearings in different processes that parties can ask the judge to hold orally and open to the public. This also happens in appeals procedures.

The judge manages the legal process, he or she leads the hearings, indicating to the parties the order in which they will be heard through their lawyers. If it is a trial or sentencing, depending on the type of process, the judge must generally issue the ruling at the end of the hearing; in some cases, however, the law enables the ruling to be issued at a later date.

It is very difficult to predict the amount of time that a court may take to grant a first-instance judgment, and even more difficult to predict the timeframe if the court’s judgment is appealed. This will depend on the judge in charge of each case and the number of cases that the judge has under their responsibility.

In family and labour matters, the court’s approval is required to settle a lawsuit. In civil and commercial proceedings, the settlement only needs to comply with some formalities in order to be approved by the court.

Family and labour matters cannot remain confidential because the settlement must be presented before the court, and it must be approved. On the other hand, in civil and commercial matters, parties may have extrajudicial settlements that can involve a confidentiality clause.

If any party fails to comply with their obligations in a settlement, a civil procedure for execution of the contract can be filed, in order to obtain a judicial order to oblige compliance. The court may ask for the assistance of any public office, even the police, in order to enforce the agreement.

At any time during the process, the parties can reach an agreement. Once an agreement is adopted, it can be set aside if one or both parties fail to comply, which must be reported to the judge so that the process can continue, if possible.

In addition to the court having ruled in favour of one party, it also condemns the payment of procedural costs to the other party. The procedural costs may comprise all the expenses of the wining party, including legal fees.

Guatemalan legislation only allows compensatory damages. The amount must be proven in court through the submission of supported and relevant evidence. Punitive damages are not available in Guatemala.

The rules for the calculation of interest in cases where the parties litigate based on a previously defined legal relationship should be distinguished from the rules for cases in which the judgment itself creates the monetary obligation.

In the first case, the calculation of any kind of interest would be defined by the agreement of the parties in that regard.

In the second case, when the source of the obligation is the judgment itself, the calculation of interest follows the provisions of the Guatemalan Civil Code which provides for a weighted average of the lending rates of the Guatemalan banks reduced by 2%.

In Guatemala, a special procedure, regulated by the Code of Civil and Commercial Procedure, is used to enforce domestic judgments. Depending on the content of the judgment to be enforced, the process and effects vary. For example, if the domestic judgment called for the handing of goods, the judge sets a term for the person to deliver them and, in a case of non-compliance, they will be sequestered. Judges can avail themselves of the help of public offices in any instance.

The Guatemalan Code of Civil and Commercial Procedure regulates specific procedures for the enforcement of foreign judgments, which are recognised by Guatemala in international treaties or which are delivered in a country that recognises the enforcement of Guatemalan judgments (reciprocity principle). For the enforcement of a foreign judgment, the party must file the resolution issued before a First Instance Civil Court.

In accordance with private international law, in order to enforce a foreign judgment, the decision and its supporting documentation must meet the following conditions:

  • the court issuing the judgment must have jurisdiction according to the rules of private international law;
  • the judgment must have been notified to the parties or their legal representatives;
  • the decision must not be contrary to the public order or the public law of the country where it is going to be enforced;
  • the judgment can be exercised in the country where it was issued;
  • supporting documentation must be translated by an authorised, certified translator if the country where the judgment is to be exercised has another official language; and
  • the authenticity and validity of the supporting documentation is verified.

In addition to the above-mentioned information, the Code of Civil and Commercial Procedure states that foreign judgments will be enforced if they meet the following conditions:

  • they derive from the exercise of a personal, civil or commercial action;
  • they were not issued in default or against a person who is missing and domiciled in Guatemala;
  • the obligations that they entail are legal in Guatemala;
  • they are final judgments constitutive of res judicata; and
  • they meet all the requirements to be deemed as genuine or authentic.

There is only one level of appeal in Guatemala. Nonetheless, there are other mechanisms of review depending on the type of decision being delivered. Against procedural decisions, a party can lodge a remedy before the same judge to revoke the decision. If the decision is the result of lengthier legal reasoning (auto or court proceedings), a party can use an appeal of annulment. The decision made in response to this mechanism can later be appealed. If the decision is made by a superior court or by the Supreme Court of Justice, the correct remedy would be a reposición, so that the same court can provide a new decision.

While not technically considered another level of appeal, after an appeal is decided it is still possible to go before the Supreme Court of Justice to lodge a remedy of cassation. This is an extraordinary and extremely technical mechanism that can only be used in specific circumstances.

The appellation procedure must be filed by the party that considers itself wronged by the ruling of the court and that was involved in the first instance process. It is filed to be judged in the immediate higher court.

Certain requirements need to be followed in order for an appeal to be successful. It needs to be presented in an established period of time; to the corresponding court; and to expose, in a clear way, the wronging and the specific resolution to be considered. Also, the impugned resolution must admit of appellation; if not, the procedure is rejected.

Trial court decisions may be appealed in writing within the first three days after the notification of the court’s resolution. The appeal must be made in writing and be filed against the same court that issued the resolution. Also, the appeal must specify grounds, which may be procedural or substantive, or both, and may include challenges to the court’s acceptance or rejection of evidence that was submitted during the trial.

After the deed is filed, the first-instance judge’s jurisdiction is limited to denying or granting the appeal. If the judge decides to deny it, then the plaintiff can file an appeal known as an ocurso before the Court of Appeals, which will decide if the appeal filed by the plaintiff may be granted. If, on the other hand, the judge grants leave for appeal, he or she will send the original records to the Court of Appeals. This latter tribunal will then schedule a hearing for the appellant to exercise their right to appeal.

After the hearing, the court will, ex oficio, schedule a date and time for the public hearing. Finally, after the hearing, the court will grant a resolution confirming, revoking, amending or annulling the decision made by the first instance court.

An appeal is governed by the principle of tantum devolutum quantum apellatum, meaning that the court can only hear and decide on those issues raised by the appellant. There is no limit to what the appellant can request, as long as its arguments derive from the decision at first instance and/or that the arguments were also made before that tribunal.

The appeal court has the power to confirm, revoke, amend or annul the first instance decision. If it revokes, amends or annuls, the appeals court must provide a new decision. There is no new hearing or procedure before the first instance tribunal. Under the principle of prohibition of the reformatio in peius, an appeals court cannot render a decision that puts the appellant in a worse-off position that the one they had before the appeal, unless the other party has also lodged an appeal.

The court cannot impose any conditions on granting an appeal.

As stated in 10.4 Issues Considered by the Appeal Court at an Appeal, the appellate court has the power to confirm, revoke, amend or annul the first instance decision.

The general rule states that the losing party is responsible for paying the costs of litigation, unless a motivated decision exonerating said party is issued.

Litigation costs are established at each stage of the judicial process. However, if a superior court’s decision revokes a first instance decision and the prevailing party is now the losing party, this losing party must pay for the litigation costs of both levels. The same criteria apply to the Supreme Court of Justice’s decisions.

Once the claims are settled, the prevailing party must file a motivated request for reimbursement of its litigation costs, attaching the documents that sustain the request. The court will serve the losing party with the reimbursement request and will grant the losing party the opportunity to challenge it. After that, the court will issue a final decision.

The award of costs is determined according to the tariff established on the Decree No 222-96, the Arancel de Abogados, Árbitros, Procuradores, Mandatarios Judiciales, Expertos, Interventores y Depositarios.

The estimation of interest on the procedural costs is not regulated; therefore, it is not granted.

Alternative Dispute Resolution (ADR) has been widespread since the promulgation of the Arbitration Act in 1995, leading to the creation of some centres of mediation, conciliation and arbitration. The method most used in Guatemala is arbitration, which is usually institutional; however, in family matters, it is very common for the parties to proceed to a mediation or conciliation method, before going to court.

ADR is not part of legal proceedings in Guatemala nor are there penalties for not attempting it. Previously agreed arbitration clauses are the exception. If the arbitration has not been attempted and it is presented before a common judge, the judge or the opposing party can invoke the exception of lack of competence and, as a consequence, the judge will reject the claim.

There are two institutions in Guatemala that organise and promote arbitration: the Commission for Resolution of Disputes and Arbitration of the Chamber of Industry of Guatemala (Comisión de Resolución de Conflictos de la Cámara de Industria de Guatemala – CRECIG) and the Arbitration and Conciliation Center of the Chamber of Commerce of Guatemala (Centro de Arbitraje y Conciliación de la Cámara de Comercio de Guatemala – CENAC). Both have their own regulations and rigorously chosen arbitrators and mediators.

There are also several private and public centres for mediation and conciliation, including one governed by the Organismo Judicial.

Arbitration proceedings in Guatemala are subject to the Arbitration Law, which is, largely, a copy of the UNCITRAL Model Law. This law regulates the recognition and enforcement of arbitral awards. While it recognises that this recognition and enforcement can also be subject to the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Inter-American Convention on International Commercial Arbitration, it also contains its own rules on this topic. For example, it states reasons to deny the recognition or execution of arbitral awards in cases such as lack of arbitrability within Guatemala, public order, lack of notification of the other party, and other cases that mainly reflect those of the Conventions.

The Arbitration Law excludes certain subject matters from being referred to arbitration, such as:

  • disputes over which the parties do not have free disposal;
  • matters inseparably related to those over which the parties do not have free disposal;
  • issues over which there is already a ruling, except if the arbitration concerns the execution of that decision:
  • when the law expressly prohibits or has a specific procedure for the claim; and
  • labour arbitrations.

The Constitutional Court has also delivered several judgments interpreting instances where it is questionable whether there is an already contemplated procedure or if the parties have free disposal over the topic. For example, it has considered that matters relating to decisions taken in a general assembly of shareholders cannot be brought to arbitration.

Parties can have recourse to a revision appeal. They can only challenge the award based on the following circumstances:

  • the party proves that:
    1. one of the parties of the arbitration agreement was affected by an incapacity or such agreement is null and void under the law agreed upon, or in its absence, Guatemalan law;
    2. it was not notified of an appointment of an arbitrator or of the proceedings;
    3. the award relates to a matter not foreseen in the arbitral award or contains a decision that exceeds the terms of the arbitral award; or
    4. the composition of the arbitral tribunal or the arbitral proceedings do not comply with the agreement between the parties, or in its absence, to the Arbitration Law of Guatemala; or
  • the Court of Appeal determines that:
    1. according to Guatemalan law, the object of the controversy is not arbitrable; or
    2. the award goes against Guatemalan public order.

The party must lodge a written submission to a competent civil or commercial tribunal for the execution and enforcement of the arbitral award. The solicitor must present the award in its original form, properly authenticated or in a duly certified document, and accompanied with an original of the arbitral agreement. If the award or agreement is not in Spanish, the party must provide a translation under oath by a sworn translator, and if there are none, under oath of two persons that speak and write both languages, with a legalisation of signatures by a public notary.

If the losing party does not comply with the award within a month, the winning party can ask for its compulsory execution before the competent tribunal through a written submission. The judge will grant a term of no longer than three days to the infringing party, who can only argue against the execution based on a pending revision appeal. If this is not the reason for the delay, the tribunal will rule in favour of the execution of the award, ordering compliance by the losing party and the seizure of assets if necessary.

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A.D. Sosa & Soto is one of Guatemala’s leading law firms in the areas of litigation, and provides tailor-made legal counsel and representation to foreign companies, many of which are listed on the NYSE and other international securities exchanges, and also to local corporate conglomerates. The attorneys are experts in litigation, and the team is composed of three active partners and six associates. It handles litigation, arbitration and alternative dispute resolution, and has earned the respect of both national and international clients for its focus on preventative litigation and risk assessment. The team is best known for its ability to design and execute complex and multi-disciplinary litigation strategies, handling complex high-stakes and high-profile business disputes.

The Never-Ending Battle Between Politics and Law

Almost every lawyer in the world would agree that Law is a changing profession. Law is not eternal, but rather the result of a dynamic process on which the legislator responds to the general public needs. Tracing it back to its origins, Law responds to the general public need of establishing a set of rules for life, so is a reflection of human life and a response to social change. History offers many examples, from the Magna Carta in 1215 to the United States Alcohol Prohibition in 1920. Historical events demonstrate that Law is mainly influenced by social, economic and political situations, and it can be assumed that almost every law, even the Constitution itself, is the result of a political event. Humans, as social beings, accept this premise and, in their majority, abide by the implications of political events in Law and legislation.

On the other hand, a less accepted premise is the politicisation of the Judicial Branch and the effects on legislation and, most importantly, litigation. Lawyers accept the fact that the legal system is designed by politicians influenced by social movements but reject the idea that Judges should exert politics from their chambers. For the majority of lawyers, political intervention from the Judicial branch is unacceptable and contradicts the independence of the judiciary. It is mostly accepted that the Judicial branch should regulate their decisions only by the Constitution and the law.

Over the last two decades, Guatemala has undergone great political change, most of it inspired by the actions of the International Commission Against Impunity in Guatemala (CICIG), a United Nations-funded experiment to fight “illegal security groups and clandestine security organisations [that] seriously threaten human rights as a result of their criminal activities and capacity to act with impunity …” During the course of its mandate (2006-2019), CICIG participated in several high-profile criminal cases and promoted legislation reforms for the justice sector, including constitutional reforms. Even though CICIG’s actions are the subject of controversy, most attorneys in Guatemala would agree that CICIG’s actions influenced the political situation and affected the way litigation lawyers design defence strategies for criminal cases prosecuted by District Attorneys, and the way attorneys advise clients on preventative litigation procedures.

The Context

According to The World Bank, Guatemala is a solid economic performer due to a combination of a managed floating exchange rate and prudent fiscal management by implementing an inflation-targeting regime. Regardless of the political events that took place in the last seven years, Guatemala has managed to maintain its economic stability, and is expected to have an economic growth of 3.3% this year. The United States still represents the main commercial partner for Guatemala, accounting for nearly 40% of Guatemala’s trade.

Located in the North of Central America just next to Mexico, Guatemala’s geopolitical location is crucial for US foreign policies. During 2019, the Department of State and the Guatemalan government signed various treaties seeking to prevent illegal migration and to create jobs in Guatemala. Guatemala has also enforced and adopted policies to prevent international crime, pursuant to the US international crime control strategy.

Taking the economic and political interests of the United States in Guatemala into account, attorneys in Guatemala are expected to be familiar with US best compliance practices.

The Origin of Change

Guatemala and the United States established diplomatic relations in 1824. Over the last two decades, both countries have worked continuously to pursue the fight against organised crime, including waging the war against drug cartels and international crime gangs. In order to prosecute these crimes, Guatemala has promoted and enforced legislation in different sectors, including the following:

  • Reforms to Drug Trafficking Legislation (Ley Contra la Narcoactividad) in 1998, 1999, 2003 and 2010;
  • Money Laundering Law in 2001 (Ley Contra el Lavado de Dinero y otros Activos);
  • Racketeering Act in 2006 (Ley Contra el Crimen Organizado);
  • Human trafficking Act in 2009 (Ley contra la Violencia Sexual, Explotación y Trata de Personas); and
  • Asset Recovery Act in 2010 (Ley de Extinción de Dominio).

Guatemala’s new legislation has impacted different sectors, beginning with the regulated banking sector (2001) and spreading into the private sector with companies doing business with commercial counterparts in the USA (2006). Almost every sector was affected by the Foreign Corrupt Practices Act (FCPA), and by strict compliance policies imposed by companies from the United States doing business in Guatemala. At this moment in history, Guatemala's legal and commercial situation may appear to be similar to every other country in the world, especially those doing business with companies in the USA.

In September 2006, Guatemala signed an international treaty with the United Nations, agreeing to accept a UN-funded Commission collaborating with Guatemalan authorities in the justice sector. CICIG’s mandate originally included providing aid and actively participating in investigations conducted by the District Attorney’s Office, specifically those regarding crimes committed by illegal security groups and clandestine security organisations. During its existence, CICIG was funded by the UN and countries like the USA, Sweden, Spain and Canada, to name a few.

Throughout the first eight years of its existence (2006-2014), CICIG played a secondary role in the judicial and political situation. CICIG’s actions were mainly focused on collaborating with the District Attorney’s Office, investigating crimes and delivering training and technical assistance to government officials. Attorneys in Guatemala could agree that CICIG’s involvement with the District Attorney’s Office was limited to the cases described within the mandate. However, during the last five years (2014-2019), CICIG evolved and began to investigate and prosecute different types of crimes, assuming the prosecution and leaving the District Attorney’s Office in a secondary role. It also participated actively in general politics and legislative reforms, and even issuing opinions regarding governmental policies to the point of challenging Executive Branch decisions before the Guatemalan Courts. CICIG was never meant to take part in political decisions from Guatemala’s government, but was meant  to collaborate with the District Attorney’s Office in the fight against “illegal security groups and clandestine security organizations [that] seriously threaten human rights as a result of their criminal activities and capacity to act with impunity …”

According to its mandate, CICIG’s main objective was to “support, strengthen and assist institutions of the State of Guatemala responsible for investigating and prosecuting crimes …” Because criminal cases are prosecuted before the Criminal Courts, CICIG had a necessary bond with the Judicial Branch, including lower and higher courts.

The Politicisation of the Judicial Branch

The Judicial Branch, composed of the different courts in Guatemala, is in charge of interpreting and applying the Law, so is not expected to take part in political decisions. On the other hand, the Legislative Branch and the Executive Branch are expected to take part in political decisions. Whenever the Judicial Branch is taking part in political decisions, the term "politicisation" is always part of the discussion. Politicisation is often defined as the active participation of judges and Courts as political actors within the State, through their decisions. Politicisation of the judiciary is always associated with the term judicial legitimacy; this term seeks to define a situation in which Court decisions are respected by the general public. Court decisions are usually respected because the Court has the authority to decide on the matter, so its decisions are respected and worthy of obedience, and because the Court's decisions are grounded in Law and legal principles, rather than in judges’ personal beliefs, ideology or political views.

A political battle has taken place in Guatemala over the last five years (2014-2019), with the government on one side and CICIG on the other. As a result, CICIG’s mandate was not renewed, and the UN Commission was forced to leave the country in September 2019. The end result is not as relevant as the role the different political allies played during the battle. Favoured by the media coverage, the battle became an everyday topic – Court hearings were live streamed via Facebook and Twitter for the first time. As expected, government officials, political parties and the private sector behaved in a partisan manner and took a side in the battle. However, the behaviour taking place in the Guatemalan Courts was less expected, and is particularly relevant to litigation attorneys in Guatemala, as most of the battles ended up in Court.

Almost every aspect of the battle ended up being discussed in either the Supreme Court or the Constitutional Court; as a result, the Judicial Branch became the centre of political decisions. The media had a blast during the discussions and, as a negative effect, Court legitimacy was open for debate. Although the general public may or may not agree with the Higher Courts' decisions, it is unquestionable that the discussion took place because both the Supreme Court and the Constitutional Court surrendered to their political views. These discussions had an effect on Guatemalan Lower Courts, considered by many lawyers as CICIG’s allies. CICIG actively promoted criminal procedures related to the battle in the Lower Courts, so some degree of politicisation of the judiciary actually happened, either because of fear of retaliation or due to personal beliefs. For some attorneys, criminal procedures promoted by CICIG were used as a political weapon against their adversaries; for some others, criminal procedures promoted by CICIG were part of the war against corruption.

At the moment and without CICIG’s intervention, criminal procedures are still being discussed in Guatemalan Lower Courts. If there is something that the battle between CICIG and the Guatemalan Government has shown us, it is the lack of compliance and "know-your-customer" (KYC) policies within Guatemalan companies. In some cases, criminal procedures revealed the existence of policies, but it is the lack of enforcement that ended up being discussed. In addition, most of the criminal procedures show that companies in Guatemala need to enforce compliance policies for their suppliers and vendors.

Conclusions

The United States continues to be the main commercial partner for Guatemala, and the country’s geopolitical location is still a key element in US foreign policy. Despite the fact that international companies investing in Guatemala generally enforce and use compliance policies as common practice, current criminal procedures reflect that most Guatemalan companies lack adequate and enforceable compliance and KYC policies. It is advisable that most of companies doing business with counterparts in the USA enforce compliance and KYC policies not only on their suppliers but also on any third related party.

At the moment, attorneys in Guatemala require a broad comprehension of compliance and KYC policies to correctly advise clients on preventative litigation practices.

A.D. Sosa & Soto

15 Calle “A” 14-44 zona 10
Edificio Marimelia
Oficina 702
GUATEMALA
C.A. 01010

+502 2384 6600

+502 2384 6666

ssoto@adsosasoto.com www.adsosasoto.com
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Law and Practice

Authors



Legalsa is a team of more than 20 driven and highly responsive lawyers with more than 20 years of experience. The firm is fully committed to advancing and defending clients’ interests at the negotiating table, at government institutions and regulatory agencies, and in courts and arbitration forums, both local and international. The firm can provide comprehensive legal services for all types of business. It has been particularly successful in dispute resolution (including complex litigation and arbitration), banking law, intellectual property (including IP litigation), administrative law related to government bids and concessions, and estate planning. The firm has advised big companies in Guatemala and the region in their intercorporate disputes in the areas of agribusiness and banking, among others, as well as dispute resolution involving white-collar criminal conflicts and administrative issues.

Trends and Development

Authors



A.D. Sosa & Soto is one of Guatemala’s leading law firms in the areas of litigation, and provides tailor-made legal counsel and representation to foreign companies, many of which are listed on the NYSE and other international securities exchanges, and also to local corporate conglomerates. The attorneys are experts in litigation, and the team is composed of three active partners and six associates. It handles litigation, arbitration and alternative dispute resolution, and has earned the respect of both national and international clients for its focus on preventative litigation and risk assessment. The team is best known for its ability to design and execute complex and multi-disciplinary litigation strategies, handling complex high-stakes and high-profile business disputes.

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