On October 18, 2011, a first instance decision was handed down, denying in full the claim filed by ANTEL against BANQUE HERITAGE. The amount of the claim was USD 1,080,000.
The case originated in October 1992, when SURINVEST (currently Banque Heritage Uruguay), per request of NEC DO BRASIL S.A. (NEC), issued a letter of credit in favor of ANTEL in order to guarantee performance under a public tender contract awarded to NEC.
In June 2008, ANTEL filed suit against SURINVEST requesting collection of the guarantee. The bank answered the complaint and summonsed NEC as guarantor in its capacity as the company liable for contract performance.
The decision rejected the claim in full and found that ANTEL should have sued NEC and not SURIVEST. It also found that to enforce payment under the guarantee after so many years ANTEL had to prove that NEC failed to perform under the terms of the tender, which it was unable to do during the proceedings.
ANTEL’s silence over the years led NEC and SURINVEST to believe that the contract had been duly performed by NEC.
Fermín Morales, of FERRERE, who represented Banque Heritage in this case noted: “This ruling reinforces the legal security of our system. Especially since this is a government corporation that, using the clout afforded by its large size, claimed compensation fifteen years after the facts, without raising any previous objections. Moreover, the decision clearly reflects the fact that ANTEL, like any other company, must prove its claim, which it failed to do in this case.”