Arbitration 2017

Last verified on Friday 5th May 2017

Peru

Carlos Paitan, José Salcedo Machado, Danny Quiroga and Leonardo Llanos
Estudio Paitan & Abogados

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?

  2. Decree Law No. 1071 of 2008 (the Arbitration Statute) regulates both domestic and international arbitration proceedings, including the enforcement of commercial arbitration awards and arbitral agreements.

    Pursuant to article 5 of the Arbitration Statute, an arbitration qualifies as international if the parties to an arbitration agreement have their places of business in different states at the time of the conclusion of that agreement; or the place of arbitration is located outside the state in which the parties have their places of business; or a substantial part of the obligations of the commercial relationships is to be performed outside the state where the parties’ places of business are located.

  3. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 

  4. Peru’s Arbitration Statute is largely based in the UNCITRAL Model Law in its amended version of 2006 with no particularly substantial variations.

    Conventions

  5. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 

  6. Peru is a party to the New York Convention, which it ratified with no reservations on 7 July 1988.

    With regard to regional arbitral conventions, Peru is also a party to the 1940 Montevideo Treaty of Civil Procedure, the 1975 Inter-American Convention on International Commercial Arbitration (Panama Convention) and the 1979 Inter-American Convention on Extraterritorial Validity of Foreign Judgements and Arbitral Awards (Montevideo Convention).

  7. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 

  8. Peru is a party to the ICSID Convention, which came into force on 8 September 1993, and no steps to renounce it or withdraw from ICSID have been taken since then.

  9. 5.

    Some jurisdictions have required a separate agreement to specifically resolve a particular dispute once a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable? 

  10. Article 13 of the Peruvian Arbitration Statute specifically provides that an international agreement to arbitrate is enforceable regardless of whether it exists in the form of a pre-dispute clause or a separate agreement as long as the agreement is evidenced in writing. Accordingly, Peruvian law does not require any kind of post-dispute compromiso.

    Commercial arbitral agreements and arbitrability

  11. 6.

    Is there any legislation in your jurisdiction governing the arbitrability of consumer disputes? 

  12. Law No. 29571 of 2010 (Consumer Protection Code) created the Consumer Arbitration System (CAS) as a special mechanism to solve consumer disputes. This regime has two main features: both parties need to agree to solve the dispute through the CAS, and the proceedings are free of charge for the consumer party. However, to date, the CAS has not been fully implemented and further regulation is yet to be enacted.

  13. 7.

    What are the requirements for an enforceable arbitral agreement? 

  14. The Peruvian Arbitration Statute has adopted a very modern free-of-formalities approach for the validity of an arbitral agreement. According to article 13, the arbitral agreement shall be in writing and may take the form of an arbitration clause embedded in a contract or in the form of a separate agreement or be contained in an exchange of letters, telegrams or any means of telecommunications.

    The requirements for an arbitral agreement to be enforceable in an international arbitration are determined by the set of rules chosen by the parties, or the substantive law that applies to the merits of the dispute, or Peruvian law.

  15. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?

  16. Pursuant to article 2 of the Arbitration Statute, only matters in which the parties have free disposition (ie, negotiable rights) pursuant to domestic law or international treaties can be the subject matter of arbitration. Thus, in general terms, only claims related to the following matters cannot be settled by arbitration: criminal, antitrust, labour, family status, issues involving the public interest or subject to administrative proceedings. On the contrary, matters such as licensing, distributorship, patent can be submitted to arbitration.

  17. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.

  18. Article 4 of the Arbitration Statute expressly allows the state, any instrumentality of the state and state-owned companies to enter into agreements to submit contractual disputes to domestic or international arbitration to be carried out in Peru or abroad. No further formalities are needed for such agreements to be enforceable.

  19. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?

  20. Article 57 of the Arbitration Statute unambiguously provides that the arbitration will be in equity only when the parties have expressly authorised so in the agreement. In all other cases where no express indication exists, disputes will be decided under law.

  21. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 

  22. Peruvian law has strongly endorsed the principle of freedom of the parties to construct a dispute resolution agreement of their choice. Thus, with respect to the terms of an arbitral agreement, parties enjoy broad autonomy in determining the number of arbitrators, their qualifications and the procedure to be followed for their appointment.

    Parties’ freedom regarding the selection of arbitrators is subject only to the "principle of equality". Under this restriction, any situation of privilege in the procedure for the appointment of arbitrators shall be null (article 26 of the Arbitration Statute).

  23. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?

  24. Article 14 of the Arbitration Statute provides that ‘the arbitral agreement shall extend to those whose consent to arbitrate, according to good faith, can be determined by their active participation and in a determining manner in the negotiation, celebration, performance or termination of the contract containing the arbitral agreement or to which the agreement is connected’.

    Thus, according to the plain wording of article 14, the extension of an arbitration clause to accommodate non-signatories that seek to arbitrate is allowed. However, there is no case law in this respect.

  25. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?

  26. See question 12.

  27. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?

  28. There are no specific rules in Peruvian law allowing courts to force a party to submit a dispute to arbitration. However, in order to challenge the court’s jurisdiction, the non-signatory may raise a defence on the grounds of the existence of an arbitral agreement. Such defence is explicitly set forth in article 16 of the Arbitration Statute.

  29. 15.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 

  30. There are no specific rules on class-action arbitration or group arbitration in our jurisdiction.

  31. 16.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?

  32. Since there are no specific provisions on class-action arbitration, contractual waivers are not regulated either.

  33. 17.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?

  34. See answer to question 15.

  35. 18.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?

  36. There are neither restrictions nor special requirements – such as licences or authorisations – for foreign arbitral institutions to administer arbitrations seated in Peru. Thus foreign institutions without physical presence in Peru can administer proceedings in our jurisdiction.

  37. 19.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?

  38. Any award rendered in an arbitration seated in Peru, be it issued in an arbitration under the auspices of a local or foreign institution, is subject to challenge. In other words, under Peruvian Law, awards issued under the auspices of foreign institutions are not subject to additional and or particular grounds for challenge.

    Arbitral institutions and arbitrators

  39. 20.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?

  40. Under Peruvian law there are no requirements regarding nationality, citizenship or place of residency of arbitrators.

  41. 21.

    Does your law require that arbitrators in international cases be lawyers? 

  42. Article 22.1 of the Arbitration Statute expressly states that in international arbitration there is no requirement that arbitrators be lawyers.

  43. 22.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 

  44. Peruvian law does not grant immunity to arbitrators. Notably, article 32 of the Arbitration Statute provides that the breach of their obligations may raise legal liability for the arbitrator and the obligation to pay any damages with respect to acts performed by them in the exercise of their functions.

  45. 23.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?

  46. The fees paid to non-resident foreign arbitrators serving in an arbitration seated in Peru will be subject to local taxation only if the arbitration is also carried out in the territory of Peru. The reason for this is that the personal income tax regime Peru has adopted regarding personal services follows the territorial taxation system.

  47. 24.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?

  48. In accordance with article 28 of the Arbitration Statute, arbitrators must be independent and impartial. Regarding conflicts of interest and disclosure, the aforementioned provision obliges arbitrators to disclose any circumstance that might give to justifiable doubts as to their impartiality or independence from the time of their appointment and throughout the proceedings without delay. While no more specific standards have been enacted, the IBA guidelines are closely followed in arbitrators’ disclosure practice and in the arbitrators’ challenge proceedings.

  49. 25.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 

  50. Courts cannot intervene in the proceedings to disqualify an arbitrator in any case during an arbitration. Pursuant to article 29 of the Arbitration Statute, parties are free to decide on the procedure for challenges and disqualification of arbitrators. If parties have not agreed on a procedure, the following rules apply:

    • in case of a sole arbitrator, the selected arbitral institution shall decide upon the challenge; in absence of such, the chamber of commerce of the city where the arbitration is taking place shall decide upon the matter; and
    • in case of tribunals consisting of more than one arbitrator, the unchallenged arbitrators shall decide upon the matter and, in case of disagreement the president will have the final decision. In the latter case when the president of the tribunal is the challenged arbitrator, the selected arbitral institution or, in the absence of such, the chamber of commerce of the city where the arbitration is taking place shall have the final decision.

    The decisions adopted according to the above-mentioned rules are definite and cannot be appealed.

  51. 26.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 

  52. Parties are free to choose one or more languages applicable to the proceedings. In absence of an agreement, the tribunal shall decide upon the matter.

    Arbitral proceedings

  53. 27.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 

  54. Article 37 of the Arbitration Statute explicitly states that "there are no restrictions on the participation of foreign lawyers (as advocates in arbitral proceedings)."

  55. 28.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?

  56. The fees paid to non-resident foreign lawyers counselling in an arbitration seated in Peru will be subject to local taxation only if the arbitration is also carried out in the territory of Peru. This is because the personal income tax regime Peru has adopted regarding personal services follows the “territorial taxation system”.

  57. 29.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?

  58. Arbitral proceedings shall not be consolidated into a single one unless otherwise agreed by the parties or provided for in the set of rules applicable to the proceedings.

  59. 30.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 

  60. As a civil law jurisdiction, Peruvian law does not provide for mandatory rules for the production of evidence in arbitration proceedings. However, parties are free to agree on the rules of procedure and, accordingly, in the context of international arbitrations the IBA rules on the Taking of the Evidence have been commonly accepted.

  61. 31.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 

  62. The specific provisions of article 51 of the Arbitration Statute impose the duty of confidentiality concerning the arbitral proceeding, the award itself and any documents or other information that might be disclosed in the proceedings. The obligation extends to the arbitrators, secretariat, arbitral institution, witnesses, experts, parties, and their attorneys and representatives. Parties may agree to the contrary.

  63. 32.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?

  64. There are no mandatory rules on this matter.

  65. 33.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 

  66. In the absence of specific legal provisions prohibiting it, third-party funding is allowed in arbitration. As a consequence of the lack of regulation and the fact that third-party funding is not common in arbitral practice in Peru, there are no explicit rules or guidelines on ethical limitations restricting its use. However, we are aware of recent cases of parties disclosing the existence of this type of funding in order to guarantee transparency.

  67. 34.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 

  68. There are no mandatory rules on this matter.

  69. 35.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?

  70. Article 41 of the Arbitration Statute unambiguously incorporates the principle of Kompetenz-Kompetenz providing that the tribunal has the exclusive competence to determine its own jurisdiction and to decide any dispute relating to the existence, validity and effectiveness of the arbitral agreement. Since the enactment of the Arbitration Statute, this principle has been consistently upheld by local courts. 

    Court support for arbitration

  71. 36.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 

  72. Yes, courts largely enforce the principle of independence and separability of the arbitration clause that is expressly set forth in article 41 of the Arbitration Statute.

  73. 37.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 

  74. Pursuant to article 47 of the Arbitration Statute, arbitral tribunals have wide powers to grant interim relief at the request of either party. According to article 48, arbitral tribunals are also sufficiently empowered to enforce their own interim measures. In the case of non-compliance with the relief or when further judicial assistance is required, the applicant party shall resort to the competent court to compel compliance. In this case, courts shall not review or interpret the content or the scope of the relief granted by the arbitral tribunal.

  75. 38.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 

  76. Arbitral tribunals lack authority to compel the production of evidence or coerce a witness to appear before them. Pursuant to article 45 of the Arbitration Statute, arbitrators may request courts’ aid in taking evidence. However, civil and commercial courts cannot compel a person to appear or to provide evidence. Because of this, the practical effects of the courts’ assistance in this matter are very limited.

  77. 39.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?

  78. Pursuant to article 45 of the Arbitration Statute, a party, with the approval of the arbitral tribunal, may request courts’ aid in taking evidence. However, civil and commercial courts cannot compel a person to appear or to provide evidence. Because of this, the practical effects of the courts’ assistance in this matter are very limited.

  79. 40.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?

  80. No. Once constituted, the arbitral tribunal has exclusive jurisdiction to grant provisional relief.

  81. 41.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 

  82. Local courts have issued anti-arbitration injunctions in the past. However, in 2011 the Peruvian Constitutional Court put an end to the previous inconsistent case law regarding judicial requests seeking to restrain arbitration proceedings from going forward. The Court achieved so via its decision in the case No. 00142-2011-PA/TC, which to date constitutes a mandatory precedent in that matter. In this sentence, the Court concluded that according to Peruvian law, antisuit injunctions are not a valid remedy against arbitration. 

    It is important to underline that the Arbitration Statute, in force since 2008, in its 12th Supplementary Provision, had already tackled this issue, stating that the only valid and adequate remedy against arbitration is the application for annulment. Despite having such an express provision in the statute governing arbitration, local courts struggled for a number of years with the coexistence of concepts such as protection of constitutional rights, separability of jurisdictions, the principle of Kompetenz-Kompetenz, etc. 

    Since the issuance of the precedent in case No. 00142-2011-PA/TC, rather than issuing antisuit injunctions, Peruvian courts consistently protect the right to arbitrate by dismissing any antisuit injunction filed within their jurisdiction. While it may have taken some time to develop, Peru can now be considered an arbitration-friendly country.

  83. 42.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 

  84. There is no specific provision on this matter in the Arbitration Statute. However, pursuant to the Civil Code, monetary interest runs on the unpaid award when it involves a monetary obligation. The legal rate is set by the Central Bank.

  85. 43.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?

  86. Yes. Unless the parties have agreed on specific rules or proceedings to award such fees, arbitral tribunals have discretionary powers to award attorneys’ fees to the prevailing party. 

  87. 44.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 

  88. No, our legal system does not recognise punitive damages. 

  89. 45.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 

  90. Article 63 of the Arbitration Statute states that the only grounds for challenging an award issued in an arbitration seated in Peru are as follows:

    • The arbitration agreement is inexistent, null or void.
    • A party to the arbitration was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or, for any other reason, was unable to defend its rights.
    • The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the Arbitration Statute from which the parties cannot derogate, or, failing such agreement, was not in accordance with said law.
    • The award deals with matters not falling within the terms of the submission to arbitration.
    • In domestic arbitration, the award deals with subject matter that is manifestly not capable of settlement by arbitration under Peruvian Law.
    • In international arbitration, the award is in conflict with the international public policy.

    Awards - content

  91. 46.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 

  92. The only grounds to vacate an award are those listed in question 45.

  93. 47.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?

  94. Since the enactment of the Arbitration Statute of 2008, there are no reported cases of international awards rendered in Peru that have been vacated on the grounds of public policy.

  95. 48.

    What is the period of time a party has to challenge such an award?

  96. Twenty days after the receipt of the award.

  97. 49.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.

  98. We are not aware of any decision by Peruvian courts on this matter since the enactment of the Arbitration Statute of 2008.

  99. 50.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?

  100. We are not aware of any decision by Peruvian courts on this matter since the enactment of the Arbitration Statute of 2008. According to this Statute, for foreign arbitration awards the courts are only authorised to refuse their recognition and enforcement.

  101. 51.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?

  102. Yes, parties may waive or limit their right to seek court review of an award rendered in Peru, provided that neither party is domiciled, a resident or has their place of business in Peru.

  103. 52.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.

  104. As set forth in article 76 of the Arbitration Statute, the party seeking the enforcement of a foreign award shall first submit an application for recognition before the Higher Court. Along with its petition for recognition, the applicant must also supply the original award duly authenticated. The Higher Court shall notify the party against whom enforcement is sought of the request and they will have a period of 20 days to submit an answer. Once this period finishes, the Court will set a date for a hearing to be held within the following 20 days. After this, the Court must decide on the request within the following 20 days.

    Given that the recognition of a foreign award is dealt with in non-adversarial proceedings, the decision can only be challenged by the applicant when its petition for recognition has been wholly or partially refused.

    Once the foreign award is recognised, it will have the same legal status as any national judgment or domestic arbitral award. As such, the party seeking to enforce the award shall request enforcement before the competent civil court of the domicile of the person against whom the award is intended to be enforced, or where the assets are located. The Court will issue a judicial order for enforcement and the party compelled to enforce will have five days to oppose. In case of opposition, the Court shall notify the applicant for five days. Once this period finishes, the Court will dictate an enforcement resolution, ordering summons of the obliged and seizure of goods, if applicable.

    Awards enforcement

  105. 53.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 

  106. Despite the short periods of time for the proceedings set forth in the Statute, recognition may take from six to 10 months, depending on the complexity of the case and the workload of the court. The duration of the enforcement proceedings may also vary greatly (from four to eight months) depending on the difficulty of uncovering the debtor’s assets, the workload of the court and the complexity of the case.

  107. 54.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.

  108. As explained above, the enforcement of a foreign award may take between 10 to 18 months (see answer to question 53). In practice, the proceedings to enforce a foreign judgment are of much longer duration, despite the short period stages set forth in the Code of Civil Procedures, because the proceedings do not benefit from the advantages of the New York Convention and other regional treaties on enforcement of arbitral awards.

  109. 55.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.

  110. Peruvian courts’ attitude towards the enforcement of foreign awards has been consistent and in observance of the principles embraced by the New York Convention. The judiciary has also made efforts to improve the time frame of the proceedings.

    For example, in GC Luckmate Trading Limited v Pacific Sunny Foods SAC (Arbitration 13-625) the court (case No. 1838-2008) recognised an ICC award rendered in London ruling out a number of challenges raised by the losing party. The court further noted that the applicant had supplied the necessary documents under Peruvian law, namely the original arbitral award and the arbitral agreement together with a translation that met the formal requirements set in the law. The enforcement court following the same criteria proceeded to order enforcement without major delay or further formalities required.

  111. 56.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 

  112. We are not aware of any judicial decision refusing enforcement of a foreign award on the grounds of the "public policy" argument.

    In Energoprojekt Niskogradhja (Energoprojekt) v El Pacífico Peruana Suiza Compañía de Seguros y Reaseguros (Pacífico) (Case No. 2262-2004) Energoprojekt sought enforcement of an award rendered in London. The Higher Court granted enforcement and rejected Pacifico’s challenge on the grounds of a violation to "domestic public policy". Later on, the Supreme Court dismissed Pacifico’s appeal holding that an appeal is possible only against a decision denying enforcement of an award in its entirety or in part (see question 53).

    Similarly, in Geb Shipping Company (Geb Shipping) v Transportes Marítimos del Pacífico SA (Transportes Marítimos) (Case No. 231-2004), the Supreme Court affirmed the lower court’s decision granting enforcement, holding that the subject matter of the award was arbitrable and that enforcement would not be at odds with Peruvian international public policy.

  113. 57.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 

  114. There are no reported cases of terminated proceedings for enforcement of an award that has been set aside by the judicial courts of the primary jurisdiction.

    In our opinion, because article 75 of the Arbitration Statute identically replicates article V of the New York Convention – which is drafted in a permissive manner by the use of the word "may" – courts may assume that the wording gives them space to apply the so-called "residual discretionary power". 

  115. 58.

     Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.

  116. Peru has a perfect track record of compliance with foreign awards.

    The outlook

  117. 59.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?

  118. Arbitration in general – and international commercial arbitration in particular – will continue its growth, with continuous increase in the number of cases, as well as in the monetary sums in dispute. This trend can be partially attributed to the growing Peruvian economy and the consequent increase in business opportunities and ensuing disputes between privates and between privates with state’s entities. Given the sophistication of businesses and investments taking place in Peru, it can be held that the complexity of cases and the intensity of the practice will also increase.

    Peru has made significant efforts to promote an arbitration-friendly approach. In 2008 the legislature played its part implementing a very modern arbitration law based on the UNCITRAL Model Law. The process to create a favourable arbitral environment is also being supported by the courts by adopting a consistent case law that has enhanced the effectiveness of arbitration and the predictability of the outcome when courts are involved. Arbitral institutions are also playing an important role maintaining a solid level of expertise, impartiality and efficiency and in reducing delay and expense. All these factors support the increase of the use of both international and domestic commercial arbitration in Peru. This vibrant atmosphere is providing significant experience for arbitrators, practitioners, arbitration institutions and also for courts, which in turn is promoting the emergence of Lima as a potential and competitive seat for international arbitration.

    Our advice to a foreign lawyer counselling a foreign client in relation to a business with a Peruvian company would be to pay close attention to cultural differences and to the difference between civil and common law systems when negotiating the deal, drafting the agreement and carrying out business. Taking into account the differences between the civil and common law approach is of the essence when building and implementing a strategy for the conduct of the business and, should a dispute arise, for the arbitration proceeding.

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Questions

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?


  2. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 


  3. Conventions

  4. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 


  5. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 


  6. 5.

    Some jurisdictions have required a separate agreement to specifically resolve a particular dispute once a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable? 


  7. Commercial arbitral agreements and arbitrability

  8. 6.

    Is there any legislation in your jurisdiction governing the arbitrability of consumer disputes? 


  9. 7.

    What are the requirements for an enforceable arbitral agreement? 


  10. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?


  11. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.


  12. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?


  13. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 


  14. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?


  15. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?


  16. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?


  17. 15.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 


  18. 16.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?


  19. 17.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?


  20. 18.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?


  21. 19.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?


  22. Arbitral institutions and arbitrators

  23. 20.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?


  24. 21.

    Does your law require that arbitrators in international cases be lawyers? 


  25. 22.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 


  26. 23.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?


  27. 24.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?


  28. 25.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 


  29. 26.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 


  30. Arbitral proceedings

  31. 27.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 


  32. 28.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?


  33. 29.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?


  34. 30.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 


  35. 31.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 


  36. 32.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?


  37. 33.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 


  38. 34.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 


  39. 35.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?


  40. Court support for arbitration

  41. 36.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 


  42. 37.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 


  43. 38.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 


  44. 39.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?


  45. 40.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?


  46. 41.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 


  47. 42.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 


  48. 43.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?


  49. 44.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 


  50. 45.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 


  51. Awards - content

  52. 46.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 


  53. 47.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?


  54. 48.

    What is the period of time a party has to challenge such an award?


  55. 49.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.


  56. 50.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?


  57. 51.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?


  58. 52.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.


  59. Awards enforcement

  60. 53.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 


  61. 54.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.


  62. 55.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.


  63. 56.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 


  64. 57.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 


  65. 58.

     Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.


  66. The outlook

  67. 59.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?


Other chapters in Arbitration 2017

  • Argentina
    Rivera & Asociados
  • Brazil
    TozziniFreire Advogados TozziniFreire Advogados
  • Chile
    Ovalle Ossa Gazzana & Bulnes Abogados
  • Colombia
    Gómez-Pinzón Zuleta (Bogotá)
  • Costa Rica
    Hulbert Volio & Parajeles Hulbert Volio & Parajeles Abogados
  • Dominican Republic
    Medina Garrigó Abogados
  • Ecuador
    Carmigniani Perez
  • Guatemala
    Consortium Legal (Guatemala City)
  • Mexico
    Basham Ringe y Correa
  • Nicaragua
    Aguilar Castillo Love (Nicaragua)
  • Paraguay
    Altra Servicios Juridicos
  • Peru
    Estudio Paitan & Abogados