PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
Procedural Mechanisms for Balance Parties and tribunals can employ various mechanisms to achieve appropriate balance, as follows. • Redaction protocols – documents can be pub- lished with specific redactions protecting con- fidential business information while disclosing legal reasoning and factual background. Tribunals increasingly establish detailed procedures identify- ing categories of information subject to redaction and requiring parties to justify confidentiality claims rather than presuming non-disclosure. • Tiered access – some proceedings adopt differenti- ated access levels, such as: (a) full public access to legal submissions and awards; (b) restricted access to designated confidential annexes containing proprietary information; and (c) closed sessions for testimony involving trade secrets. • Non-disputing party participation – amicus curiae procedures allow interested parties (including affected communities, environmental organisa- tions, or public interest groups) to provide tribunals with perspectives on public policy implications while maintaining party control over core eviden- tiary record. • Staged transparency – proceedings may maintain confidentiality during initial phases to facilitate settlement discussions, with automatic publication of awards after issuance and potential subsequent release of procedural history. Practice in Peruvian Arbitrations Peru’s practical approach to transparency has been case-specific rather than systematic. Some awards have been published (eg, Lupaka Gold ), enabling pub- lic analysis of the tribunal’s reasoning on attribution, full protection and security, and expropriation stand- ards. Other cases have maintained greater confidenti- ality. The determining factors appear to be applicable treaty provisions, institutional rules, and party agree- ments rather than a comprehensive state policy on transparency. This ad hoc approach creates several challenges. Without systematic transparency, it becomes difficult
• protection mechanisms for confidential business information; and • a central repository maintained by UNCITRAL. The Mauritius Convention on Transparency (2014) provides a mechanism for states to apply the UNCI- TRAL Transparency Rules to their existing investment treaties without renegotiating each agreement indi- vidually. Peru has not yet adopted the Mauritius Con- vention, meaning the UNCITRAL Transparency Rules apply only to treaties explicitly incorporating them or concluded after 1 April 2014 and only if both parties agree. Balancing Transparency and Legitimate Confidentiality The challenge lies in identifying what information genuinely requires confidentiality protection when the State’s participation creates a presumption-favouring disclosure. The following categories merit considera- tion. • Information warranting confidentiality protection ‒ this includes: (a) proprietary business information and trade secrets belonging to the investor or third par- ties; (b) confidential financial data whose disclosure could harm competitive position; (c) technical specifications or processes with independent commercial value; (d) security-sensitive information ‒ the disclosure of which could threaten national security; and (e) information necessary for settlement negotia- tions where confidentiality facilitates resolution. • Information presumptively subject to disclosure ‒ this includes: (a) legal arguments and treaty interpretation posi- tions; (b) factual allegations regarding state conduct; (c) evidence of regulatory measures and their justifications; (d) expert opinions on matters of public policy; (e) arbitral tribunal’s legal reasoning and conclu- sions; and (f) final awards determining state liability and com- pensation.
192 CHAMBERS.COM
Powered by FlippingBook