PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
• ICSID arbitration (Peru is a signatory since 1993); • other institutional or ad hoc arbitration under appli- cable treaties; and • no requirement to exhaust domestic remedies before accessing international arbitration. Interaction With Investment Treaties The protections in Decree 662 interact with invest- ment treaties in the following complementary ways. Baseline protection Decree 662 establishes minimum protections avail- able to all foreign investors regardless of nationality. Meanwhile, BITs and FTAs provide enhanced protec- tions for investors from specific treaty partners. Hierarchy of norms Under Peru’s constitutional framework (Fourth Final and Transitory Provision), ratified international treaties form part of domestic law and generally prevail over conflicting ordinary legislation. Investment treaties Legal stability agreements themselves constitute “investments” under most BITs, creating dual-layer protection as follows: • contractual rights under domestic law (Decree 662); and • treaty-based protection of the agreement itself as an investment. This was demonstrated in arbitrations where inves- tors successfully claimed treaty violations when Peru modified or failed to respect legal stability agreement terms. Legitimate expectations Commitments made through legal stability agree- ments and other regulatory representations under domestic law create legitimate expectations that form the basis for FET claims under investment treaties. The Lupaka Gold case (2025) illustrates how domes- tic legal frameworks interact with treaty standards; investors’ expectations that they could access legally thus provide a superior normative layer. Legal stability agreements as protected investments
authorised projects were protected under treaty FET obligations. Forum choice and complementarity Domestic law provides access to Peruvian courts or domestic arbitration for contractual disputes. Investment treaties provide direct treaty-based stand- ing for international arbitration without exhausting domestic remedies. In terms of cumulative protection, investors may potentially pursue parallel claims – although some treaties contain fork-in-the-road clauses limiting this option. Substantive standards Although Decree 662 guarantees non-discrimination, property rights, and remittance freedoms, investment treaties typically provide broader substantive protec- tions, including: • FET (not explicitly in Decree 662); • FPS; • indirect expropriation protections; • most-favoured-nation treatment; and • umbrella clauses protecting contractual commit- ments. Technology transfer regime (Article 21) Decree 662’s automatic registration of technology transfer contracts complements treaty protections for IP-related investments, ensuring both domestic legal validity and international investment protection. Practical Significance This dual-layer framework means sophisticated for- eign investors in Peru typically: • negotiate legal stability agreements under Decree 662 for tax and regulatory certainty; • rely on investment treaties for broader substantive protections and neutral dispute resolution; • benefit from constitutional equal treatment guaran- tees as operationalised through Decree 662; and • can invoke domestic protections in Peruvian courts while preserving treaty-based international arbitra- tion rights.
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