Curso de derecho mercantil: Las sociedades mercantiles. Front Cover. Alfredo Morles Hernandez. UCAB, – Commercial law – pages. Curso de derecho mercantil: Introducción, la empresa, el empresario. Front Cover. Alfredo Morles Hernández. UCAB, – Commercial law. Bibliographic information. QR code for Curso de derecho mercantil: Los títulos valores Volume 3 of Curso de derecho mercantil, Alfredo Morles Hernández.
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Source of the document: The contention of the Respondents to the mrcantil that mecrantil is not the proper Claimant because the Contract was signed by its branch in Venezuela, is answered in clear terms by the laws of Venezuela.
Under Articleparagraph 2, of the Venezuelan Commercial Code, corporations incorporated abroad having branches in Venezuela, or some other type of business, shall keep their nationality and shall be considered domiciled in Venezuela. Such corporations and their branches can sue and be sued.
It follows that there is no question that [Claimant] is the proper Claimant in this arbitration. The answer to this other jurisdictional issue is more complex. Rivers of ink have flowed dereho the question of the liability of corporate groups, parent-subsidiary relationships, and all combinations thereof. The rule on this matter has always been and continues to be that separate legal personalities ought to be respected by judges and arbitrators and that, hegnandez, the arbitration clause only has effect with respect to the parties to the contract or agreement.
However, it is nonetheless true that contemporary business realities have led to the recognition of many exceptions to this rule.
Occasionally, and increasingly so, parties not expressly mentioned in the contract or agreement may both avail themselves of rights under it and be bound by it. Some of these exceptions concern cases in which a separate legal personality is created with an intention to violate the law, public order or good faith, or to frustrate the rights of third parties. However, other exceptions have been recognized in contemporary decisions of the courts and arbitral tribunals without a need for any devious purpose.
In a number of cases the existence of an intention, even implicit, of all the parties, including the non-signatories, to the effect that such non-signatories be parties to the contract and the arbitration clause is required.
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The evidence in zlfredo case clearly points in the direction of an intimate and inextricable relationship between [Respondent 2] and [Respondent 1]. First, between the time of the tender in and the signature of the Contract inall the working and legal modles of [Claimant] in connection with the C. Second, the negotiations for the Contract were made with [Respondent 2].
Third, payments made under the Contract, at least during its early part, were made by [Respondent 2]. Fourth, the executives of [Respondent 2] and [Respondent 1] responsible for this project were the same. And fifth, most of the relevant meetings in connection with this project were held not in Caracas but in. The Respondents have also explained in the record that [Respondent 1] was organized with the specific purpose of qualifying for an exemption from the Value Added Tax introduced in Serecho.
This is a perfectly lawful and valid business purpose. Contrary to what the Claimant believes, there is nothing cerecho or fraudulent about it. However, this step also indicates that for every other hernandeez the project was still to be managed by [Respondent 2], as in fact it was. All complaints and other relevant correspondence from [Claimant] were addressed to [Respondent 2’s] executives in.
The document of cession to [Respondent 1] of the contract between [E] and [Respondent 2] and related consortium expressly provides for joint and several liability to [E] by [Respondent 2], the companies forming metcantil consortium and [Respondent 1]. The active participation of [Respondent hernahdez in the negotiation, preparation and execution of the Contract, and in some respects in the performance under it, determines that the intention of the parties can be reasonably inferred as to the extension of said Contract and the arbitration clause to [Respondent 2].
This Arbitrator is mindful of the view that the fact that signatories and non-signatories of the contract and the arbitration clause belong to the same group of companies is insufficient in and of itself to justify the extension of the arbitration clause.
In the present case that fact alone would not be sufficient either, but the evidence supports a conclusion that [Respondent 2] was and still is the mind and soul, and partly the body, of the C.
The beneficiary of the project contract is in substance [Respondent 2]. It is therefore concluded that with respect to the present arbitration both [Respondent 2] and [Respondent 1] are the proper Respondents. The Arbitrator, however, has wished to inquire further so as to find out whether this determination might collide with any rule of public order under Venezuelan law.
The Arbitrator is satisfied that it does not. In fact, the Venezuelan Law on Commercial Arbitration of provides first dereccho an Arbitral Tribunal is empowered to decide about its own jurisdiction, including the existence and validity of the arbitration agreement.
It is also important to note that under the Venezuelan Law on Private International Law ofin addition to the application of the eerecho chosen by the parties to contractual obligations, the rules, customs and principles of international commercial law shall also be applied when ckrso. The general rule on corporate personality under Venezuelan law is hwrnandez of Article of the Commercial Code.
This article provides that “Corporations are legal entities with a personality different from that of the partners”. In Venezuela there is no law of general application governing the question of the piercing of the corporate veil or similar mechanisms.
This is not unusual in South America and elsewhere since many such legal developments are rather recent.
A draft law on Commercial Corporations has, however, followed the approach of the Argentine law allowing korles the disregard of corporate personality when the latter is intended to violate the law, public order or good faith, or to frustrate the rights of third parties.
Exceptions to the general rule have also been gradually introduced in Venezuela.
First, under foreign investment legislation the concept of corporate groups and parent-subsidiary connections was introduced in Specialized legislation in Venezuela has also relied on similar concepts, with particular reference to corporate control and administration. The decisions of Venezuelan courts have also begun to develop similar exceptions. The First Court on Family and Minors of Caracas adopted, on 3 Marcha decision mwrcantil the corporate veil when the separation of the legal personality of a corporate entity and its members might lead to manifest unjust results contrary to law.
Venezuelan law and jurisprudence, like that of many other countries, while mprles with a general rule respectful of the separate legal personality of corporate entities, has also allowed for necessary exceptions when the nature of the underlying case or business so justifies.
Blumberg and Kurt A. The Law of Corporate Groups. Liability of Corporate Groups, ; Carolyn B. Lamm and Jocelyn A. El Arbitraje Comercial en Venezuela,at Curso de Derecho Mercantil, Vol. II,with particular reference to Article For the Argentine Law see supra note 3 and associated text.
Los dilemas de la competencia, The question of the proper Respondents The answer to this other jurisdictional issue is more complex.