PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
Legal stability agreements (Articles 10 to 18) Peru offers contractual legal stability agreements ( convenios de estabilidad jurídica ) that freeze regula- tory conditions for qualifying investors. Per Article 11, the eligibilty requirements are: • minimum investment of USD2 million; or • minimum investment of USD500,000 if generat- ing 20+ permanent jobs or USD2 million in exports within three years. Per Article 10, stabilised rights are: • tax regime stability ‒ income tax rates applicable to the company and dividends/profits attributable to the foreign investor are frozen; • currency regime stability ‒ rights to foreign exchange access and remittances under Articles 7 and 9 are guaranteed; and • non-discrimination ‒ equal treatment rights under Article 2 are preserved. Per Article 12, additional stabilised rights for compa- nies are: • labour contracting regimes; and • export-oriented special regimes (temporary admis- sion, free trade zones, etc). Articles 14 and 15 prescribe the following in terms of duration and protection: • ten-year term from execution; • state cannot unilaterally modify agreements; and • breaches constitute contractual violations. Foreign investors enjoy equal access to Peruvian courts and domestic arbitration mechanisms available to national investors. International arbitration (Article 16) The State may submit disputes arising from legal stability agreements to arbitral tribunals constituted under international treaties to which Peru is party. This provision enables: Dispute Resolution Provisions Domestic options (Article 2)
• tangible property physically located in Peru; • intangible technology contributions (patents, trade marks, and technical know-how); • securities and financial instruments; • joint venture arrangements with production-shar- ing; and • any other investment modality contributing to national development. Non-discrimination and equal treatment (Article 2) Foreign investors and companies with foreign par- ticipation enjoy identical rights and obligations as domestic investors, with no legal discrimination based on nationality of capital. This constitutional guarantee is operationalised through the decree. Automatic authorisation and registration (Article 3) Foreign investments are automatically authorised upon execution and require only subsequent regis- tration with the national competent authority, which is the National Commission on Foreign Investment and Technology ( Comisión Nacional de Inversiones y Tecnología Extranjera , or CONITE). Property rights (Article 4) Foreign investors’ property rights are subject only to constitutional limitations, providing broad ownership protections. Substantive guarantees (Articles 6 to 9) The decree guarantees: • freedom of commerce and industry ‒ no restrictions on business activities; • free transferability ‒ unrestricted right to remit abroad (in freely convertible currency, without prior authorisation): (a) capital and proceeds from sale of shares, capi- tal reductions, or liquidations; (b) dividends and net profits; and (c) royalties and technology transfer payments; • acquisition rights ‒ right to acquire shares or own- ership interests from domestic investor; and • exchange rate protection ‒ right to use the most favourable exchange rate for currency conversions.
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