PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
4.3 Court Intervention In international arbitrations, particularly under the ICSID Convention, Peruvian courts have a very limited role in the selection of arbitrators. The ICSID system is autonomous and excludes national judicial interven- tion in the appointment process. 4.4 Challenge and Removal of Arbitrators In ICSID arbitrations, challenges are governed by Arti- cle 57 of the ICSID Convention, which allows chal- lenging an arbitrator who manifestly lacks the required qualities, particularly independence and impartiality. This is a high standard; the deficiency must be evident or obvious. The most common grounds include undisclosed con- flicts of interest, prior relationships with a party, prior opinions on issues in dispute, or multiple appoint- The ICSID Convention requires that arbitrators be per- sons of high moral character, have recognised com- petence in the fields of law, commerce, industry or finance, and inspire full confidence in their impartiality. Arbitrators must be independent of the parties and lack interest in the outcome of the dispute. They must disclose any circumstances that may give rise to justi- fiable doubts about their independence or impartiality. ments that generate conflicts. 4.5 Arbitrator Requirements Arbitral tribunals in investment arbitrations have the power to grant provisional and interim measures. This power is recognised in both the ICSID Convention and the UNCITRAL Arbitration Rules and other institutional rules. Measures ordered by arbitral tribunals are binding on the parties, not merely recommendatory. Non-compli- ance with such measures may have consequences in the determination of liability and costs. 5. Preliminary and Interim Relief 5.1 Types of Relief
by the investor against community members who occupied the mine remained unresolved for more than four years, with no arrests made. Expropriation Expropriation claims in Peru typically fall into the fol- lowing three categories. • Direct expropriation ‒ physical seizure of property or formal transfer of title. Lupaka Gold i nvolved physical seizure of a mine by a rural community, which the tribunal found constituted direct expro- priation attributable to the State. • indirect/creeping expropriation ‒ regulatory changes or administrative actions that substan- tially deprive investors of their investment’s value without formal taking. The Lupaka Gold tribunal also found indirect expropriation through state omissions that enabled third parties to seize the investment. • Regulatory expropriation ‒ changes in environmen- tal, tax, or sector-specific regulations that funda- mentally alter the investment’s economic viability. Breach of contract Many disputes involve allegations that Peru or state- owned entities violated concession agreements, par- ticularly in infrastructure and mining sectors. Recent cases include unilateral contract terminations follow- ing Comptroller General observations, as seen in the Kuntur Wasi airport concession case. Peruvian legislation and investment treaties signed by Peru generally broadly respect party autonomy to select arbitrators in investor–state arbitrations. There are no significant nationality restrictions, except those typically established in treaties. 4.2 Default Procedures When parties fail to agree on the constitution of the tribunal under the ICSID Convention, Article 38 of the ICSID Convention establishes that either party may ask the president of the ICSID Administrative Council to make pending appointments. 4. The Arbitral Tribunal 4.1 Limits on Selection
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