PERU Law and Practice Contributed by: Renzo Salvatore Monroy Pino, Roberto Shimabukuro Miyasato, Aníbal Urtecho Gómez and Alexander Montenegro, Monroy & Shima Abogados
ICSID awards: special regime For ICSID awards, Article 54 of the ICSID Convention provides a privileged enforcement regime. Peruvian courts must recognise ICSID awards as binding and enforce pecuniary obligations as if they were final judgments of Peruvian courts, without any review on public policy or other substantive grounds. Practical challenges Although the legal framework supports enforcement, practical challenges exist, as follows. • Identification of non-immune state assets available for execution can be complex. • Budgetary procedures may delay voluntary compli- ance. • As demonstrated in the Kuntur Wasi case, institu- tional co-ordination failures can result in enforce- ment defaults despite legal obligations. Summary Peruvian courts maintain a pro-arbitration stance that strongly favours the recognition and enforcement of foreign awards. The public policy exception is applied restrictively and requires manifest, proven violations of fundamental principles – not mere allegations or ongoing investigations. Although sovereign immunity from execution exists for certain assets, Peru’s treaty obligations and domestic law preclude using immunity as a general defence against award recognition. 9.3 Asset Tracing and Recovery Peruvian access-to-information laws provide a practi- cal mechanism for identifying attachable state assets. Creditors may request details from government enti- ties regarding assets, property holdings, and commer- cial activities. This transparency mechanism enables preliminary asset mapping before initiating execution proceedings – although response quality and com- pleteness vary depending on the governmental entity involved. Peruvian courts maintain limited intervention in investor–state arbitrations given Peru’s adherence to the ICSID Convention and the New York Conven- tion. The legal framework for corporate veil piercing exists through Article 12 of the Corporate Law (Law No 26887), which establishes liability for those act-
corruption underlying a contract do not constitute grounds to deny recognition unless: • the corruption has been definitively established by competent authorities (not merely alleged or under investigation); • the arbitral tribunal failed to address such allega- tions; and • there is proven causality between the alleged cor- ruption and the contract’s validity. The Lima Expresa case demonstrates that ongoing criminal investigations, fiscal accusations, or legisla- tive reports ‒ without definitive judicial determinations ‒ are insufficient to invoke the public policy exception. Courts have rejected arguments that would convert public policy objections into vehicles for re-examining the arbitral tribunal’s factual findings or evidentiary assessments. Domestic versus international public policy Peruvian courts apply the international public policy standard, which is narrower than domestic public policy. International public policy encompasses only those fundamental principles and values essential to Peru’s legal order and societal organisation, includ- ing constitutional rights, due process guarantees, and principles recognised by the international community. Position on Sovereign Immunity Immunity from jurisdiction versus immunity from execution By ratifying the ICSID Convention and including arbi- tration clauses in investment treaties and state con- tracts, Peru has waived immunity from jurisdiction for covered disputes. Peruvian law does not permit the State to invoke sovereign immunity to avoid recogni- tion of validly rendered arbitral awards. However, immunity from execution over state assets remains governed by principles of international law. Peruvian law distinguishes between: • non-immune assets ‒ commercial assets and prop- erty not dedicated to public service functions; and • immune assets ‒ property dedicated to essen- tial public services, diplomatic premises, military assets, and central bank reserves.
196 CHAMBERS.COM
Powered by FlippingBook