PERU Law and Practice Contributed by: Camilo Maruy, Maite Colmenter, Roberto Polo and Llanet Gaslac, Rebaza, Alcázar & De Las Casas
tion of the assets. However, this situation usually leads to conflicts between family members (ie, disagreement over shares or distribution of assets). In many cases, judicial proceedings are necessary to resolve the dispute. • Wills: disputes over wills claiming nullity, incapac - ity of the testator or defects in the form of the will. Judicial proceedings are used to resolve the dispute. • Divorce: division of marital property due to divorce. This is commonly resolved by mediation or judicial proceedings. 5.2 Mechanism for Compensation The Peruvian judicial system provides for the follow - ing mechanisms for compensating aggrieved parties in wealth disputes. • Compensation for damages: this may include consequential damage, loss of earnings and moral damage. Judgments often include costs and pro - cedural costs in favour of the prevailing party. • In succession disputes, the judge may order the restitution of property or the nullity of acts of dispo - sition. • In the case of local fideicomisos , if there is mis- management or default of the trustee, civil liability may be claimed. These mechanisms for compensating aggrieved par - ties aim to remedy the harm caused, establish liability, and if possible, restore the victim to the position they would have been in, if the harm had not occurred. 6. Roles and Responsibilities of Fiduciaries 6.1 Prevalence of Corporate Fiduciaries In Peru, the fiduciary or trustee can only be exercised by trust companies duly authorised and monitored by the Peruvian Banking and Finance Authority (SBS) or the Peruvian Regulatory Authority (SMV), as applica - ble. These entities can be part of the Peruvian financial system or independent entities provided they are duly authorised by the SBS.
Trust companies in Peru are mainly regulated under the Peruvian Banking and Finance Law. As they are entities supervised and monitored by the SBS or the SMV, as applicable, they are subject to strict regu - lation, including solvency standards and auditing requirements. 6.2 Fiduciary Liabilities The liabilities of a trustee in Peru are regulated under the Peruvian Banking and Finance Law and the respective trust agreement. In Peru, it is not possible to pierce the veil of a trust or fideicomiso and hold the trustee liable for the liabilities of the trust except in cases of proven fraud or wilful misconduct of the trustee. Although Peruvian trustees are obliged to act with diligence, loyalty and transparency, it is possible to exonerate or limit their liability through a trust agree - ment. However, liability arising from fraud or wilful misconduct cannot be waived in any circumstances. It is common to delegate certain powers of the trus - tee in favour of third-party advisors. Such delegation of powers does not necessarily limit the liability of the trustee: any limitation will apply as long as it is expressly established in the respective trust agree - ment. 6.3 Fiduciary Regulation Although the regulation on trusts and trustees in Peru is limited, the trustee is an entity supervised by the SBS and the SMV, as applicable, and is obliged to act at all times in a prudent and transparent manner. In this regard, the trustee must act in accordance with Peruvian legislation and the terms of the trust agree - ment, on the understanding that the trust is an auton - omous estate, separate from the trustee’s assets, and for this reason the trustee must keep separate accounts and financial statements. Fiduciary invest - ments must comply with the guidelines set out in the agreement, and the trustee will bear no liability pro - vided they act prudently in accordance with the terms of the agreement.
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