Data
- Date:
- 19-11-2021
- Country:
- Chile
- Number:
- 154663-2020
- Court:
- Corte Suprema de Justicia de Chile
- Parties:
Keywords
PUBLIC TENDER ANNOUNCED BY A CHILEAN MUNICIPALITY - REFERENCE TO THE UNIDROIT PRINCIPLES IN ORDER TO INTERPRET AND SUPPLEMENT APPLICABLE CHILEAN LAW
ARBITRARY EXCLUSION OF THE CLAIMANT FROM THE BIDDING PROCEDURE - MUNICIPALITY SENTENCED TO COMPENSATE FOR LOSS OF CHANCE - REFERENCE TO ART. 7.4.3 UNIDROIT PRINCIPLES IN ORDER TO QUANTIFY THE LOSS OF CHANCE
Abstract
The dispute arose from the arbitrary exclusion of the Claimant, a Chilean company, from the public bidding process for the construction of the Communal Sports Center announced by Defendant, the Municipality of San Bernardo. The first instance court held that Defendant was responsible for the loss of chance that Claimant suffered on the occasion of its arbitrary exclusion from the bidding process.
Since the concept of loss of chance is not defined in Chilean law, the Supreme Court referred to art. 7.4.3 UNIDROIT Principles in order to "codify" what is expressed in similar terms by Chilean doctrine and jurisprudence.
By applying these principles, the Supreme Court decided that Claimant would have had the chance to have been awarded the tender with a 50% probability, since it had offered a lower price and a shorter period for the execution of the works in relation to the applicant to whom the tender was awarded. Therefore, the Court confirmed the First instance ruling which condemned Defendant to pay, as damages, half of what the Claimant would have earned from the award of the tender.
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