DMK Abogados has represented Corporación Aeroportuaria del Este (CAE) in the person of its partner, Enrique De Marchena Kaluche, together with the law firms of Jiménez Peña and Valerio Jiminian Roa.
The Supreme Court of Justice (SCJ), the highest jurisdictional body in the Dominican judicial system, rejected the appeal by the Bavaro International Airport (AIB) that sought to invalidate the declaration issued by the Civil Aviation Institute (IDAC) qualifying the airport as harmful to the national interest issued and, in passing, dismisses the project as it was originally conceived and approved.
In the last stretch of the judicial journey, the ruling admits that those who criticized the procedure for corruption were right and even discredits the decree issued by the Executive Branch in the transition period, which approved the AIB. Abraham Hazory, together with national and foreign partners, is behind the project through the Abrisa Group.
Supreme Court decisions are unappealable, so disallowing the airport to be built on the premise that it goes against the national interest as determined by the current management of IDAC, falls into the category res judicata, which according to our legal system, is the character of contestability that the judicial resolution acquires at a certain time.
Section 55 of the ruling indicates: “Under article 26 (r) of Act No. 491-06 on Civil Aviation, the legal authority of the head of the Executive Power in this matter is to approve or reject IDAC’s decision to establish an airport in a particular place, and therefore, by directly determining who will be the beneficiary company of its construction and operation, as well as authorizing the signing of a contract with the Dominican State in decree no. 270-20, dated July 21, 2020, it exceeds its jurisdiction.”
The unanimous decision issued by the Third Chamber of the SCJ reviews in depth the arguments to declare (the project) harmful provided by the IDAC during this government and shows that the entire approval process for the AIB was flawed.
- Concerning the authorization of the Bavaro International Airport, as a privately owned infrastructure, we can see that the rules of competence and administrative due process were not respected” states the ruling issued on 15 December this year and made public last week.
The High Court argues that the State’s obligation to tender the construction of a new airport is confirmed by stating that “the permits, licenses, authorizations, concessions, which are requested by individuals in matters of infrastructure, must be awarded via the procedures provided for in their respective sectoral legislations, and in cases, as occurs in the scope of the applicable sectoral legislation in the field of infrastructure, airport infrastructures… the bidding procedure established in Law No. 340-06 of 18 August 2006 on Purchases and Contracting of Goods, Services, Works and Concessions and its amendments, to guarantee the constitutional principles of transparency, publicity and equality”.
The Third Chamber of the Supreme Court of Justice unquestionably determined that, by formalizing the beginning of construction and inspection of the Bavaro International Airport, without previously going through a bidding procedure, the constitutional principles of publicity, transparency, equality, and good administration were also transgressed.
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