PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
Common types of provisional measures include: • orders for preservation of evidence; • prohibitions on aggravating the dispute; • measures to maintain the status quo; and • confidentiality orders. 5.2 Role of Domestic Courts In international arbitrations, particularly ICSID, domes- tic courts have a very limited role regarding provision- al measures. The ICSID system is autonomous and excludes intervention by national courts. 5.3 Security for Costs Arbitral tribunals have the power to order security for costs when circumstances justify it. This is a specific provisional measure designed to protect a party from the risk of being unable to recover its costs if it prevails in the arbitration. 6. Third-Party Funding 6.1 Prevalence of Third-Party Funding Third-party funding of arbitration claims is legal in Peru. There is no prohibition in Peruvian legislation that prevents investors from obtaining third-party funding for their investment arbitrations. Investors resort to third-party funding primarily to manage financial risk, to preserve capital, or when they lack sufficient resources to finance costly arbitra- tions that can extend for years. 6.2 Third-Party Funding Case Law To date, Peruvian courts and tribunals have not issued published decisions specifically addressing third-par- ty funding arrangements in investor–state arbitrations – although the practice is legally permissible. 6.3 Disclosure and Security for Costs There is no automatic legal requirement to disclose the existence of third-party funding in investment arbitrations. However, tribunals increasingly require disclosure to assess potential conflicts of interest, particularly if the funder has connections with arbitra- tors, experts, or other participants.
The existence of third-party funding has been con- sidered by some tribunals as a relevant factor when deciding security for costs applications. The reasoning is that if a third party finances the claim with expecta- tion of profit, it should also be willing to guarantee the counterparty’s costs. 7. Other Procedural and Evidentiary Issues 7.1 Notice of Dispute and Consultation Period Pre-Arbitration Requirements in Treaties Most investment treaties signed by Peru include pro- cedural requirements that must be met before initiat- ing arbitration. These typically include formal notifi- cation of the dispute and periods for consultation or negotiation. Content of Notification Notice of dispute typically must identify the investor, describe the measure objected to, specify the treaty provisions allegedly violated, and preliminarily quan- tify damages. Consequences of Non-Compliance Failure to comply with pre-arbitration requirements may result in successful jurisdictional objections. Tri- bunals generally interpret these requirements as con- ditions precedent to their jurisdiction. 7.2 Confidentiality and Transparency Inherent Public Interest in State Arbitrations When a sovereign state becomes party to investor– state arbitration, the mere fact of state involvement creates an inherent public interest that fundamentally distinguishes these disputes from purely commercial arbitration. The State exercises sovereign regulato- ry powers on behalf of its citizens, manages public resources as trustee for the population, and may com- mit taxpayer funds to satisfy awards. These character- istics generate legitimate demands for transparency that transcend the traditional confidentiality assump- tions of commercial arbitration. However, Peru’s legal framework establishes a critical exception: Article 51.3 of the Arbitration Law (Leg- islative Decree 1071) (as modified by Emergency
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