SCJ refers to the protection of the rights of tenants

The First Chamber of the Supreme Court of Justice established that it is admitted, from the procedural point of view, that the referral judge order the replacement of a tenant, as provisional and precautionary measures to avoid imminent damage or to stop an illegal situation, without the need to resolve substantive aspects.

In accordance with Articles 8 and 9 of Law no. 489-08, On Commercial Arbitration, judicial intervention is limited in matters governed by this law, this being possible by the court of first instance, among others, in cases of judicial adoption of precautionary measures.

In that sense, the aforementioned room through judgment no. 2212/2021 dated August 31, 2021, annulled the contested ordinance when the appeal court confirmed the declaration of incompetence of the jurisdiction of the referrals in the assumption that the original power of attorney was constituted to a matter that could not be elucidated before said jurisdiction.

According to the sentence, the court of cassation held that the powers of the president of the court of first instance as judge of the referrals do not limit its scope of application to urgent cases or difficulties in the execution of a sentence or other enforceable title, but rather These powers extend to prescribe conservative measures to prevent imminent harm, or to stop a manifestly illicit disturbance, in accordance with articles 109 to 112 of the Law no. 834 of 1978.

In addition, it highlights that: “the referral judge who orders the replacement of a tenant, as a provisional and precautionary measure in order to avoid the continuity of damage that causes harm or to cause a manifestly illicit disturbance to cease, provided that this embarrassment, together with the urgency, is conceived as procedural presuppositions and that there is no need, in this assessment, to settle any aspect of the merits of the answer ”.

Likewise, it maintains the criterion that: “the jurisdiction of the referral judge can only be discussed in front of another judge in the same powers. Likewise, said Court of cassation held that the opposite occurs when it comes to the powers of the aforementioned judge, since these are linked to the measures that they can order within their radius of attribution, powers that depend on the existence of some substantive requirements. of the referral.

It established that the fact that the parties are bound by a contract in which an arbitration clause was consented does not give rise to the declaration of incompetence of the referral judge, but to the rejection of the claim due to lack of power to act ”.

The decision was adopted by judges Pilar Jiménez Ortiz, who presides over the room; and justices Justiniano Montero Montero, Vanessa Acosta Peralta and Napoleón Estévez Lavandier.

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