PERU

Ana María Arrarte, María del Carmen Tovar Gil and Javier Ferrero.

A. LEGISLATION AND RULES

A.1      Legislation

International arbitration in Peru continues to be governed by the Legislative Decree No. 1071 of 2008, based on the UNCITRAL Model Law (the 1985 Model Law with its amendments in 2006) and the New York Convention.

On 24 January 2020, Urgency Decree No. 020-2020 was adopted, which modifies some articles of Legislative Decree No. 1071. The amendments are related to arbitrations where the Republic of Peru (“State) is a party, establishing among other things, the following modifications: (i) when the Peruvian State participates as party, the arbitration shall be institutional, and it may only be ad hoc when the amount under dispute is not higher than ten 10 Tax Units (each Tax Unit is equivalent to approximately USD 1,250);[1] (ii) when a provisional measure is requested against the State party, the party requesting it shall have a financial guarantee in favor of the State entity, with an amount no less than the amount of the contractual guarantee for the execution of the contract; (iii) if there is no action that shows a continuance of the arbitral proceeding during four months, the abandonment of the proceeding shall be declared ex officio or by a request of a party. In the case of institutional arbitration, the abandonment declaration will be done by the General Secretariat of the arbitral institution, and in the case of an ad hoc arbitration, the abandonment declaration will be done by the sole arbitrator or the President of the Arbitral Tribunal. This abandonment declaration impedes to initiate another arbitration with the same claims during a period of six months, and if there is a second abandonment declaration in a new arbitral proceeding between the same parties and regarding the same claims, the right will be extinguished; (iv) all the arbitral proceedings and the arbitral awards shall be public once the arbitration has ended, but taking into consideration the confidentiality exceptions under the regulations on transparency and access to public information; and (v) the Ministry of Justice and Human Rights is in charge of a National Registry of Arbitrators and Arbitral Institutions, containing the list of arbitrators and arbitral institutions with relevant information related to their performance, as well as the registry of the affidavits of interests of the arbitrators that are involved in arbitral proceedings where the State is a party.

These recent amendments have already been criticized by important arbitration practitioners in Peru since it seems to give special treatment to State parties in an arbitration, which departs from the Peruvian Arbitration Law text base on the UNCITRAL Model Law, where parties in the arbitration have to be treated equally, as any private party.

Also, there have been two new different norms that are important to mention.

First, on 21 October 2019, the Supervisory Agency for Contracts with the State (OSCE) adopted Directive No. 012-2019-OSCE-D, which establishes a series of regulations for the application of Dispute Boards to prevent and resolve technical disputes from the start of the public works until the reception of them. These regulations are an important step for a better understanding and for the increase in using Dispute Boards in public works contracts in Peru, with the aim of resolving technical disputes and avoiding recourse to arbitration.

Second, on 23 November 2019, Supreme Decree No. 018-2019-JUS was published in the Peruvian Official Gazette to regulate Legislative Decree No. 1326, which was adopted for the restructuring of the administrative system for the legal defense of the State and the creation of the State´s Attorney General Office. This Supreme Decree creates a new State’s Attorney Office Specialized in Arbitrations (PPEA), which is part of the Ministry of Justice and Human Rights, who will be in charge of the legal defense of the State in arbitral proceedings. The intervention of the PPEA will occur when the claim or the total amount of the contract subject to arbitration exceeds 200 Tax Units (approximately USD 250,000), or in the case of a sustained and express request of a State Attorney.

The implementation of the PPEA will depend on the establishment of a plan by the General State´s Attorney, which has to be approved by Ministerial Resolution of the Ministry of Justice and Human Rights.

A.2 Institutions, Rules and Infrastructure

Since last year´s Yearbook, there have not been any new developments in the most relevant arbitration institutions in Peru, with the exception of the Arbitration Center of the Lima Chamber of Commerce.

The Arbitration Center of the Lima Chamber of Commerce has implemented a transparency portal, a digital platform that provides free information to the public regarding the cases administered by this arbitration institution. The information available includes the following: (i) list of national and international arbitrators; (ii) arbitrators that comprised arbitral tribunals; (iii) sanctions imposed by the Arbitration Center to an arbitrator; (iv) arbitral awards that have been annulled; (v) arbitral awards where a State entity has participated as party to the dispute; and (vi) summaries of Awards related to commercial matters.

The other two relevant arbitration institutions in Peru, the Arbitration Center of the Pontifical Catholic University of Peru and the International Arbitration Center of the American Chamber of Commerce of Peru have not adopted any changes in their rules or in its administration of arbitration cases.

The Arbitration Center of the Lima Chamber of Commerce continues to be by far the biggest and the most active arbitration institutions in Peru. With more than a decade of experience in the administration of arbitrations related to different economic sectors, this arbitration institution has administered as of to date more than 4,500 local and international arbitration proceedings. Also, on 1 January 2017, it amended its arbitration rules. These arbitration rules were adopted to raise arbitration practice in Peru to international standards, including among other things: (i) the implementation of rules that promote speed in arbitration proceedings and the use of technology; (ii) the implementation of emergency arbitrator provisions; and (iii) rules for arbitrations with plurality of parties and contracts.

The Arbitration Center of the Pontifical Catholic University of Peru, amended its rules also to adapt more to international standards on 15 June 2017. The main innovations of these rules include among other things, the provisions on expedited arbitration procedures when the circumstances of the case and the complexity of the dispute and the amount involved justify it. This expedited arbitration procedure can be proposed by the General Secretariat, or by agreement of the parties.

The International Arbitration Center of the American Chamber of Commerce of Peru is the least used of the three arbitral institutions mentioned, although its caseload is growing. The most recent regulation of this center came into force on 1 January 2013. Recently the Court of Arbitration of this arbitration institution has been renewed with new members.

B. CASES

During the last 12 months, there have not been any significant international arbitral awards.

However, between the end of 2018 and during 2019, three additional ICSID cases have been filed against the Republic of Peru: (i) Hydrika 1 S.A.C. and others v. Republic of Peru (ICSID Case No. ARB/18/48), under a series of Concession Contracts related with renewable energy projects; (ii) IC Power Ltd and Kenon Holdings Ltd v. Republic of Peru (ICSID Case No. ARB/19/19) under the Investment Chapter of the Free Trade Agreement between Peru and Singapore, related with a electricity distribution and sale concession; and (iii) Latam Hydro LLC and CH Mamacocha S.RL. v. Republic of Peru (ICSID Case No. ARB/19/28) under the Investment Chapter of the Trade Promotion Agreement between Peru and the United States, related to a renewable energy generation enterprise.

As of today, Peru has 10 pending and 14 concluded arbitrations before ICSID. The large amount of ICSID cases against Peru is the result of many years of large amounts of foreign investment entering into the country, which is illustrated by the broad range of issues involved in these investment arbitrations, and not because of a State policy known for expropriation and anti-investment measures, like some other countries in South America.

 

[1] PEN 4,300

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