PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
tions on treaty interpretation for purposes of defending the State in arbitrations. However, these are generally not published as public interpretive aids. Absence of joint interpretive notes Peru has not typically engaged in the practice of issu- ing joint interpretive notes or declarations with trea- ty partners after treaties enter into force – although occasional diplomatic exchanges may occur during disputes. Such exchanges, when they exist, are not systematically published. Reliance on Vienna Convention principles In arbitration proceedings, Peru relies on standard principles of treaty interpretation codified in the Vienna Convention on the Law of Treaties (Articles 31 to 33), including: • ordinary meaning of terms in context; • object and purpose of the treaty; • subsequent practice and agreements between par- ties; and • preparatory work when necessary. Limited Transparency in Negotiation Records Peru does not publish travaux préparatoires (negotiat- ing history) for its investment treaties, making it diffi- cult for investors, practitioners, or tribunals to access evidence of the parties’ intent during negotiations. Contrast With Other Jurisdictions This stands in contrast to countries such as the USA and Canada, which have published model BITs, joint interpretive declarations (eg, the 2001 NAFTA Free Trade Commission Note on FET), and detailed side letters clarifying specific provisions. Implications for Arbitration The absence of published interpretive aids means that: • tribunals adjudicating disputes involving Peru must rely primarily on textual analysis and general princi- ples of international law; • arguments about parties’ intent often depend on expert testimony rather than official published positions;
• there is less ex ante clarity for investors about how Peru interprets ambiguous treaty provisions; and • interpretive issues are typically resolved through the arbitration process itself rather than through
preventive clarification. Recent Developments
There has been no significant shift towards greater transparency in treaty interpretation. Nevertheless, Peru’s increasing experience as a respondent in inves- tor‒state arbitrations may eventually lead to more sys- tematic publication of interpretive positions. 2.5 Investment Laws National Investment Framework Peru has a comprehensive national investment frame- work established primarily through Legislative Decree No 662 (1991), which grants legal stability to foreign investments through recognition of specific guaran- tees. This decree remains the cornerstone of Peru’s domestic investment protection regime. Constitutional Foundation The 1993 Political Constitution provides fundamen- tal investment protections referenced in 1.1 National Position , as follows. • Equal Treatment (Article 63) ‒ foreign and domestic investors receive equal treatment. • Contractual Freedom (Article 62) ‒ private initiative and freedom of contract are guaranteed. • Property Rights (Article 70) ‒ property is inviolable; expropriation requires public necessity and prior compensation. Key Substantive Provisions of Decree 662 Scope and definition of foreign investment (Article 1) The decree broadly defines foreign investment to include: • capital contributions in convertible currency or physical goods (machinery, equipment, and raw materials); • investments in domestic currency with remittance rights; • debt-to-equity conversions; • reinvestments;
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