PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
Decree 020-2020) mandates that when the Peruvian State participates as a party, arbitral proceedings and awards are public once the arbitral process concludes, subject only to exceptions established in transparency and public information access regulations. This provi- sion reverses the traditional confidentiality presump- tion for state disputes. This mandatory transparency applies regardless of treaty provisions or institutional rules. Each arbitral institution must develop procedures for implement- ing this obligation, while in ad hoc arbitrations, the participating state entity assumes direct responsibil- ity for publication. The exceptions reference Law No 27806 (Transparency and Access to Public Informa- tion), which protects legitimately confidential business information, security-sensitive materials, and informa- tion subject to constitutional privacy guarantees. Hav- ing established Peru’s domestic transparency man- date, the broader question remains as to whether this model should be adopted more widely in investment arbitration. The core tension is whether confidentiality should remain the default rule (with exceptions for transpar- ency) or whether transparency should be the pre- sumption (with limited exceptions for genuinely con- fidential information). The international community has increasingly moved towards the latter position – although implementation remains inconsistent. Evolution of Transparency Standards in Investment Arbitration International practice has evolved significantly during the past two decades. Traditional arbitration empha- sised confidentiality as a core feature, treating pro- ceedings, submissions, and awards as private matters between disputing parties. This approach made sense for purely commercial disputes where business com- petitors might exploit disclosed information. However, civil society organisations, academics, and some governments have challenged this model’s application to investment disputes. Critics argue that when arbitral tribunals evaluate sovereign regulatory measures (environmental protections, public health regulations, tax policies, or infrastructure decisions), the public has a right to understand the legal argu-
ments, evidence, and reasoning that may result in substantial public expenditure or constrain future policy choices. Peru’s Treaty Framework While Peru’s earlier BITs contain no transparency pro- visions and proceed under institutional rules that his- torically protected confidentiality, modern agreements such as the USA–Peru Trade Promotion Agreement and the CPTPP incorporate transparency mechanisms that complement Article 51.3’s domestic mandate. First-generation BITs (1990s to early 2000s) Peru’s BITs from this period generally contain no spe- cific transparency provisions. These disputes proceed under institutional rules (typically, the ICSID Conven- tion or UNCITRAL Arbitration Rules) that historically did not mandate publication of proceedings or awards beyond basic case registration. Under ICSID Rule 48 (4), the ICSID may not publish awards without consent of both parties, meaning full awards remain confiden- tial unless both the State and the investor agree to publication. Modern FTAs Peru’s more recent agreements reflect international shifts toward greater transparency. The USA–Peru Trade Promotion Agreement and the CPTPP include provisions addressing transparency, such as publi- cation of awards and mechanisms for non-disputing party submissions (amicus curiae briefs). These trea- ties recognise that investment disputes involve pub- lic interest considerations requiring greater openness The UNCITRAL Rules on Transparency in Treaty- Based Investor‒State Arbitration (2014) (the “UNCI- TRAL Transparency Rules”) represent the most comprehensive international effort to systematise transparency. These rules establish: • publication of key documents (notice of arbitra- tion, response, statements of claim and defence, transcripts, orders, and awards); • public hearings as the default, with exceptions for confidential information; • procedures for non-disputing party submissions; than traditional commercial arbitration. UNCITRAL Transparency Framework
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