PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
to assess whether recurring issues in Peru’s defence strategies warrant policy adjustments, whether certain regulatory practices systematically generate liability, or how tribunals interpret Peru’s treaty obligations. Democratic accountability and legislative oversight are compromised when information about pending cases or settlement negotiations remains inacces- sible. The Normative Case for Default Transparency Given that state participation inherently implicates public interest, a strong argument exists for inverting the traditional confidentiality presumption in investor– state arbitration. Under this approach, transparency would be the default rule, with confidentiality requiring specific justification limited to genuinely proprietary information, trade secrets, or security-sensitive mat- ters. This position recognises that the State acts as trustee of public resources and exercises sovereign regula- tory powers affecting entire populations. Arbitral pro- ceedings that may result in payment of public funds or influence future regulatory decisions directly implicate democratic accountability. Citizens have a legitimate interest in understanding: • what regulatory measures investors are challeng- ing; • on what legal grounds such challenges proceed; • what evidence supports or refutes allegations of treaty breaches; • how tribunals interpret treaty obligations; and • what amounts states must pay and why. Current institutional frameworks, however, do not fully implement this principle. ICSID rules still require bilat- eral consent for publication of complete awards. The UNCITRAL Transparency Rules apply only to certain treaties. Many arbitrations involving states proceed with substantial confidentiality. Recommendations for Improved Balance To better align practice with the public interest ration- ale for transparency:
• Systematic transparency commitment – Peru could unilaterally commit to transparency in its inves- tor–state arbitrations, either through adoption of the Mauritius Convention, incorporation of the UNCITRAL Transparency Rules in future treaties, or declaration that it will consent to publication of awards and key procedural documents in all cases. • Clear confidentiality protocols – establishing stand- ard procedures for identifying legitimately confi- dential information would create predictability while presuming disclosure of legal arguments, factual allegations regarding state conduct, and arbitral reasoning. • Public case registry – maintaining an accessible database of pending and concluded cases, includ- ing basic information about claims, procedural status, and outcomes, would enhance transpar- ency without compromising legitimate confidential- ity interests. Conclusion The appropriate balance between confidentiality and transparency in investor–state arbitration involving Peru should recognise that state participation creates a presumption favouring disclosure, with confidenti- ality limited to information requiring specific protec- tion. While international practice has evolved towards greater transparency, implementation remains incom- plete and inconsistent. Peru’s approach has been ad hoc rather than systematic, determined by specific treaty provisions and case circumstances rather than comprehensive policy. As international standards continue evolving, Peru would benefit from adopting a more transparent approach that recognises both legitimate confidenti- ality needs and the public’s right to understand how sovereign powers are being challenged and pub- lic funds potentially committed. Such transparency enhances not only democratic accountability but also the legitimacy and credibility of the investment arbitra- tion system itself.
193 CHAMBERS.COM
Powered by FlippingBook