PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
ner. Peru’s BITs from the 1990s and early 2000s gen- erally incorporated standard protections – FET, most- favoured-nation clauses, and protections against expropriation ‒ although each treaty contained distinct variations reflecting the specific bilateral relationship. Peru’s treaty practice evolved considerably with its modern trade agreements containing investment chapters. The agreements with the USA, Canada and particularly the CPTPP demonstrate a more calibrated methodology, reflecting the evolution of international investment law. These modern instruments provide greater specificity regarding the content of FET by explicitly tying it to customary international law rather than leaving the standard open to broad interpreta- tion. They also incorporate more comprehensive carve-outs for legitimate regulatory measures and enhanced transparency requirements. The USA–Peru Trade Promotion Agreement exempli- fies this evolution. Compared to Peru’s earlier BITs, which generally provided investors with broader and less circumscribed protections, the agreement with the USA imposes notably more restrictive conditions on investor–state disputes and articulates clearer parameters for preserving regulatory space while maintaining meaningful investment protection. 2.3 Free Trade Agreements Peru is a signatory to multiple free trade agreements that include investor protection provisions. Current FTAs in force include those with China, Singapore, the USA, Canada, Chile, and MERCOSUR member states. Investor Protection and Dispute Settlement Implications Peru’s FTAs typically contain comprehensive invest- ment chapters that provide substantive protections parallel to those found in BITs, including: • national treatment ‒ requiring host states to treat foreign investors no less favourably than domestic investors in like circumstances; • most-favoured-nation treatment ‒ extending to investors treatment no less favourable than that accorded to investors from any third country;
• fair and equitable treatment ‒ protecting investors against arbitrary, discriminatory or abusive con- duct; • expropriation protections ‒ permitting expropria- tion only when conducted for public purpose, in a non-discriminatory manner, with due process, and upon payment of prompt, adequate and effective compensation; and • investor‒state dispute settlement (ISDS) ‒providing investors direct access to international arbitration against the host state. The USA‒Peru Trade Promotion Agreement (signed 2006, in force 2009) contains particularly detailed investment provisions in Chapter 10, which has served as a model for subsequent agreements. Similarly, the Peru‒China FTA and other agreements provide robust ISDS mechanisms, typically offering investors the choice between ICSID, ICSID Additional Facility, UNCITRAL, or other institutional rules. Additional Treaties Beyond investment-specific treaties, Peru has signed double taxation treaties with Brazil, Chile and Can- ada, which complement investment protections by addressing tax treatment of cross-border investment returns. 2.4 Interpretive Aids Limited Publication of Interpretive Materials Peru does not systematically publish official commen- taries, model clauses, or comprehensive interpretive guides regarding its investment treaties. Unlike some jurisdictions that release detailed interpretive state- ments or exchanges of notes, Peru’s approach to treaty interpretation relies primarily on the following. Parliamentary records When investment treaties are submitted to Congress for ratification, the executive branch provides explan- atory memoranda ( exposiciones de motivos ) that describe the treaty’s main features and objectives. These documents are part of the legislative record but are not detailed interpretive guides. Ministry of Foreign Affairs and MEF practice The Ministry of Foreign Affairs ( Ministerio de Rela- ciones Exteriores ) and the MEF maintain internal posi-
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