PERU April Arbitration Guide IBA Arbitration Committee

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1 Arbitration Guide IBA Arbitration Committee PERU April 2012 Alfredo Bullard Bullard, Falla & Ezcurra Abogados Av. Las Palmeras 310 San Isidro, Lima Peru

2 Table of Contents Page I. Background 1 II. Arbitration Laws 2 III. Arbitration Agreements 4 IV. Arbitrability and Jurisdiction 7 V. Selection of Arbitrators 9 VI. Interim Measures 10 VII. Disclosure/Discovery 11 VIII. Confidentiality 12 IX. Evidence and Hearings 13 X. Awards 15 XI. Costs 17 XII. Challenges to Awards 18 XIII. Recognition and Enforcement of Awards 19 XIV. Sovereign Immunity 22 XV. Investment Treaty Arbitration 23 XVI. Resources 24 XVII. Trends and Developments 24

3 I. Background How prevalent is the use of arbitration in your jurisdiction? What are seen as the principal advantages and disadvantages of arbitration? Firstly, with the General Arbitration Act - Law Nº 26572, approved in 1996 and then, with the current Arbitration Act Legislative Decree 1071, approved in 2008, (the Arbitration Act ) Peru created a modern arbitration system. Both laws are based on the UNCITRAL Model Law. This legal framework, together with the friendly position of the ordinary courts in favour of arbitration, explains the extraordinary development of arbitration as a frequently used, efficient and definitive means for dispute resolution in commercial disputes and in State contracts. In addition to the development of commercial arbitration, the government procurement regulation requires compulsory arbitration clauses in all State contracts. There is a general consensus in Peruvian practice that arbitration means a specialised and faster resolution of disputes in which the parties involved have a greater control on the independence and impartiality of the process. Basically, this arbitration culture allows for a greater predictability in the decisions reached. Is most arbitration institutional or ad hoc? Domestic or international? Which institutions and/or rules are most commonly used? Although Peru does not have official statistics on the number of arbitrations that are conducted every year in the country, there are references that show that the number of arbitrations taking place in Peru have multiplied since the enactment of the now repealed General Arbitration Act of The momentum has continued with the enactment of the Arbitration Act, though which the promotion of international arbitration has been sought. As such, it can be inferred that most arbitrations are still domestic with a growing number of international arbitrations. About 60% of the cases are ad hoc, and 40% institutional. Among the arbitration institutions (and their respective rules) the Lima Chamber of Commerce (CCL) is the most recognised, followed by the American Chamber of Commerce of Peru (AmCham), the Center for Analysis and Dispute Resolution of the Pontificia Universidad Catolica del Peru (PUCP) and the National Arbitration System of the Supervising Agency of the Government Contracts (OSCE). 1

4 What types of disputes are typically arbitrated? With the introduction of the obligation to arbitrate in all State contracts set forth in the Law of Government Procurement Legislative Decree 1017, the most common arbitration cases relate to disputes arising from purchases of goods, contracting of services and construction works contracted by State entities and companies. Considering the statistics published by the Arbitration Center of the Chamber of Commerce regarding arbitrations administered by said institution from 1993 to March this year, it can be noted that arbitrated disputes mainly relate to the following economic sectors: commercial; construction; services; (iv) mining; and (v) industry, among others. Furthermore, according to the Expropriation Act Law 27,117, in cases of expropriation, if the expropriated party requests that compensation is defined in arbitration, the State is obligated to go to arbitration. This generates a large volume of cases. (iv) How long do arbitral proceedings usually last in your country? Approximately from nine to 30 months. However, this depends on the complexity of the dispute. (v) Are there any restrictions on whether foreign nationals can act as counsel or arbitrators in arbitrations in your jurisdiction? Article 20 of the Arbitration Act expressly states that unless otherwise agreed by the parties, the nationality of a person shall not prevent him from acting as an arbitrator in any case (domestic or international). Likewise, and according to Article 37, paragraph 4, there are no limits for a foreign lawyer to act as counsel in any case (domestic or international). II. Arbitration Laws What law governs arbitration proceedings with their seat in your jurisdiction? Is the law the same for domestic and international arbitrations? Is the national arbitration law based on the UNCITRAL Model Law? In addition to the provisions agreed by the parties, arbitration proceedings are governed by the provisions set forth in the Arbitration Act enacted on 27 June 2008 and in force since 1 September The Arbitration Act, which is based on UNCITRAL Model Law establishes under Article 1 paragraph 1, a single legal 2

5 framework applicable to both domestic and international arbitrations (with a few provisions only applicable to international arbitration). Is there is a distinction in your Arbitration Law between domestic and international arbitration? If so, what are the main differences? Article 5 of the Arbitration Act sets forth three mutually exclusive cases to differentiate domestic from international arbitration. In this sense, an arbitration in Peru will be international if any of the following circumstances are met: the parties at the time of the execution of the agreement have their domicile in different States; the place of arbitration as specified in the arbitration agreement or thereunder is located outside the State in which the parties have their domiciles; or the place of performance of a substantial part of the obligations of the legal relationship or the place with which the subject of the dispute has a closer relationship, is outside the national territory, in the case of parties domiciled in Peru. Likewise, as noted above, the rules aplicable to domestic and international arbitration are the same, with few exceptions. Thus, in the case of international arbitration the most important differences with respect to a domestic arbitration are: if one of the parties is a state or a company, organisation or enterprise controlled by a state, that party may not invoke the privileges of its own law to avoid the obligations arising from the arbitration agreement (Article 2, paragraph 2); the arbitration agreement shall be valid and the dispute arbitrable if the requirements of the rules of law chosen by the parties to govern the arbitration agreement, or of the rules of law applicable to the merits of the dispute, or of Peruvian law, are met (Article 13, paragraph 7); in no case is an arbitrator required to be an attorney (Article 22, paragraph 1); and when none of the parties to the arbitration is Peruvian or has its domicile, usual place of residence or principal place of business in Peruvian territory, an express agreement can be concluded to waive any application to set aside or to limit such application to one or more grounds set out for the annulment of the award (Article 63, paragraph 8). 3

6 What international treaties relating to arbitration have been adopted (eg New York Convention, Geneva Convention, Washington Convention, Panama Convention)? Peru has adopted the following international treaties: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention of 1958); The Inter-American Convention on International Commercial Arbitration (Panama Convention of 1975); and Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). (iv) Is there any rule in your domestic arbitration law that provides the arbitral tribunal with guidance as to which substantive law to apply to the merits of the dispute? Article 57, paragraph 2 of the Arbitration Act which regulates all matters with respect to the rules applicable to the merits of the dispute, provides that the arbitral tribunal, in the case of international arbitration, shall decide the dispute in accordance with the legal provisions chosen by the parties as applicable to the merits of the dispute. For these purposes, it shall be understood that any reference to the law or legal system of a particular state is, unless otherwise stated, referring to the substantive law of that state and not to its conflict of law rules. If the parties do not indicate the applicable legal rules, the arbitral tribunal shall apply those it deems appropriate. Furthermore, the arbitral tribunal shall decide in equity or conscience, only if the parties have authorised it to do so. Article 57 further provides that finally the arbitral tribunal shall decide the dispute in accordance with the provisions of the contract and shall take into account the applicable customs and practices. III. Arbitration Agreements Are there any legal requirements relating to the form and content of an arbitration agreement? What provisions are required for an arbitration agreement to be binding and enforceable? Are there additional recommended provisions? Articles 13 and 14 of the Arbitration Act regulate the requirements of form and content of the arbitration agreement in order that the agreement be valid, binding and enforceable. On the one hand, Article 13, while keeping the written form requirement, immediately clarifies that this requirement is satisfied when its 4

7 content is recorded in any form, whether it has been arranged by the execution of certain acts or any other means. On the other hand, Article 14 regulates those cases in which non-signatory parties can be incorporated into the arbitration. In that respect the arbitration agreement comprises all those whose consent to submit to arbitration is determined in good faith by their active and decisive participation in the negotiation, execution, performance or termination of the contract that contains the arbitration agreement or to which the agreement is related. It also comprises all those who seek to derive any rights or benefits from the contract, pursuant to its terms. It is recommended that the arbitration agreement be recorded in writing and be sufficiently thorough to encompass all disputes arising out of or in connection with the contract in which the clause is embedded. Additionally, it should be noted that it is highly recommendable to include in contracts the model clauses proposed by the most recognised arbitration centres, thus preventing inaccuracies in their writing. What is the approach of courts towards the enforcement of agreements to arbitrate? Are there particular circumstances when an award will not be enforced? Both Article 446 of the Civil Procedure Code Legislative Decree No. 768 and Article 16 of the Arbitration Act, outline the `arbitration exception. This is a defence that can be raised by the party whose dispute has been brought before the courts despite that it has given its consent to submit the dispute to arbitration. The courts in Peru are pro-arbitration and tend to uphold the arbitration exceptions raised in such cases (unless the arbitration agreement is found to be expressly null) and refer the dispute to arbitration. According to Article 68 of the Arbitration Act, the party subject to enforcement of a domestic award may only oppose enforcement by proving through documents that: it has complied with the obligation at issue; or has filed an action for annulment requesting the suspension of the enforcement of the award, offering a performance bond as provided for in Article 66 of the Arbitration Act. In the case of the recognition and enforcement of foreign arbitral awards (Articles 74 to 78 of the Arbitration Act), Article 74 refers to the rules established in the treaty/treaties more favourable to the party raising petition and if there is no treaty, Article 75 additionally regulates the grounds for the refusal of recognition of foreign awards. 5

8 According to Article 74, a foreign arbitral award shall be recognised and enforced in Peru in accordance with the following international instruments: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New York on 10 June 1958; or The Inter-American Convention on International Commercial Arbitration, adopted in Panama on 30 January 1975; or any other treaty on the recognition and enforcement of arbitral awards to which Peru is a party. Unless the parties have agreed otherwise, the applicable treaty shall be the most favorable to the party requesting recognition and enforcement of a foreign award. According to Article 75, this article shall apply in the absence of a treaty, or even where it exists, when these rules are, in their entirety or in part, more favorable to the party requesting the recognition of the foreign award, taking into account the prescription time limits under Peruvian law. Are multi-tier clauses (eg arbitration clauses that require negotiation, mediation and/or adjudication as steps before an arbitration can be commenced) common? Are they enforceable? If so, what are the consequences of commencing an arbitration in disregard of such a provision? Lack of jurisdiction? Non-arbitrability? Other? It is relatively common practice in Peru that arbitration clauses provide for a negotiation step, voluntary or compulsory, prior to submitting the dispute to arbitration. If this step is clearly mandatory in the arbitration agreement and one of the parties refers the dispute directly to arbitration without being aware of the previous step, the other party may raise a motion before the arbitral tribunal to dismiss the arbitration for lack of jurisdiction. In other words, if the parties agreed to submit their disputes to a compulsory negotiation (establishing time schedules, time limits for the negotiation, etc), prior to any arbitration process, the Arbitral Tribunal must respect that agreement. (iv) What are the requirements for a valid multi-party arbitration agreement? The requirements are the same as those described in the answer to question of this section. 6

9 (v) Is an agreement conferring on one of the parties a unilateral right to arbitrate enforceable? There is no express legal prohibition to the conferring of a unilateral right to refer a dispute to arbitration. In fact, the Expropriation Act Law Nº approved in 1999, confers the right to arbitration to the expropriated party, without conferring such right to the expropriating party. (vi) May arbitration agreements bind non-signatories? If so, under what circumstances? As mentioned above, Article 14 allows the incorporation of non-signatory parties, that is, those individuals that are deemed to be a party to the agreement, despite not having signed the agreement or being mentioned in it. A non-signatory may be bound if based on different behaviours or circumstances, past, concurrent or subsequent to the execution of the agreement, it is possible to assume their consent according to an interpretation of the facts within the scope of the principle of good faith. According to the aforementioned article, the arbitration agreement is extended to non signatories where: they have consented to submit to arbitration according to the principle of good faith which is determined by their active and decisive participation in the negotiation, execution, performance or termination of the contract including the arbitration agreement or the related agreement; or, there exists an intention to derive rights or benefits from the contract according to its terms. IV. Arbitrability and Jurisdiction Are there types of disputes that may not be arbitrated? Who decides courts or arbitrators whether a matter is capable of being submitted to arbitration? Is the lack of arbitrability a matter of jurisdiction or admissibility? Article 2 of the Arbitration Act determines the rules under which the arbitral tribunal should decide if the subject-matter of the dispute submitted to its jurisdiction is capable of being submitted to arbitration. Indeed, the article notes that the following controversies may be subject to arbitration: disputes that are within the field of free disposition of the parties according to law; and disputes on matters authorised by law or international treaties or agreements. Furthermore, Article 41 of the Arbitration Act expressly regulates the competence-competence principle. Article 41 provides that the arbitral tribunal 7

10 shall decide, as a preliminary question or with the award, on its own competence regarding the arbitrability of the dispute. What is the procedure for disputes over jurisdiction if court proceedings are initiated despite an arbitration agreement? Do local laws provide time limits for making jurisdictional objections? Do parties waive their right to arbitrate by participating in court proceedings? According to both Article 446 of the Civil Procedure Code and Article 16 of the Arbitration Act, if a claim is filed before the ordinary courts despite the existence of an arbitration agreement between the parties, the aggrieved party has the possibility to file an arbitration exception (see answer to question of section III above). The term for filing such an exception depends on the specific applicable process. There are three types of processes: summary process, abbreviated and knowledge process. The summary process is the quickest and is used for disputes below US$ 13, (S/. 36,000.00) and urgent matters such as eviction. The abbreviated process is used for more disputes up to US$ 133, (S/. 360,000.00) and more complex matters such as expropriation. Finally, the knowledge process is used for disputes over US$ 133, (S/. 360,000.00). The defendant s term for filing and arbitration exception is 5 days for the summary and abbreviated process and 10 days for the knowledge process. (This is regulated on Articles 478, 491 and 552 to 554 of the Civil Procedure Code). According to Article 18 of the Arbitration Act, if a party despite having executed an arbitration agreement, is brought before an ordinary court to resolve a dispute that was subject to that agreement and that party fails to invoke the arbitration exception within the stipulated time limit, it shall be deemed that such party has implicitly waived its right to submit the dispute to arbitration. Can arbitrators decide on their own jurisdiction? Is the principle of competence-competence applicable in your jurisdiction? If yes, what is the nature and intrusiveness of the control (if any) exercised by courts on the tribunal s jurisdiction? Article 41 of the Arbitration Act expressly recognises the competence-competence principle, according to which the arbitral tribunal is independent and free to decide on its own jurisdiction. According to Articles 41 and 62 of the Arbitration Act, the action for annulment is the only means established to challenge the arbitration award with respect to the jurisdiction of the tribunal. However, in the analysis of such action for annulment 8

11 the judge is prohibited to declare on the merits of the dispute, the content of the decision or to assess the criteria, motivations or interpretations expressed by the arbitral tribunal. Essentially, the courts review the formal validity of the decision. V. Selection of Arbitrators How are arbitrators selected? Do courts play a role? According to the provisions set forth in Articles 22 and 23 of the Arbitration Act, it is responsibility of the parties, the arbitral institutions or any third party appointed by the parties, as the case may be, to appoint the arbitrators who shall be in charge of the resolution of the dispute. However, according to Article 26 of the Arbitration Act, the appointment of the arbitrators cannot be the responsibility of just one of the parties; thus, any stipulation containing such privilege shall be null and void. Under no circumstances shall the judiciary be part of the procedure for appointing arbitrators. On the contrary and in accordance with the provisions set forth in Articles 23 and 25 of the Arbitration Act, if the parties have not agreed otherwise, the Chambers of Commerce will be in charge of appointing the arbitrators if the parties or the party appointed arbitrators fail to do so. What are the requirements in your jurisdiction as to disclosure of conflicts? Do courts play a role in challenges and what is the procedure? According to Article 28 of the Arbitration Act, all arbitrators shall be and remain independent and impartial throughout the arbitration process. To this end, the person proposed to be an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts about their impartiality and independence, holding that duty throughout the arbitration process, in the event of new circumstances and/or facts. Regarding the challenge of an arbitrator by one of the parties, the ordinary courts do not play any role (except that as already commented with respect to the annulment of the award) and if there is no agreement between the parties with respect to challenging an arbitrator, the procedure set forth in Article 29 of the Arbitration Act must be followed. Are there limitations on who may serve as an arbitrator? Do arbitrators have ethical duties? If so, what is their source and generally what are they? According to Articles 20 and 21 of the Arbitration Act and within the limits provided in the relevant incompatibility provisions, officials and public servants 9

12 are not allowed to serve as arbitrators. The goal of these articles is to derive the analysis of the incompatibility of an official or public servant to serve as arbitrator to the corresponding provisions of each public sector or entity which participates in the arbitration. This is a case by case analysis and depends on the regulation of each public sector where the potential arbitrator is a public servant. Apart from this, and unless otherwise agreed by the parties, there are no impediments for a natural person in the full exercise of his civil rights to act as an arbitrator. In institutional arbitration, the arbitrators are automatically subject to the duties imposed in the code of ethics established by such institutions to regulate their arbitrations. It is instructive to refer to Article 3 of the Code of Ethics of the Arbitration Center of the Chamber of Commerce of Lima, which provides that the arbitrators must maintain behaviour consistent with the following principles: fairness; independence; neutrality; (iv) confidentiality; and (v) discretion among others. (iv) Are there specific rules or codes of conduct concerning conflicts of interest for arbitrators? Are the IBA Guidelines on Conflicts of Interest in International Arbitration followed? As noted in the previous response, in institutional arbitrations there are codes of ethics that govern even the assumptions and/or circumstances in which the arbitrator has a duty to disclose or has an actual conflict of interest. It is also quite common in arbitration practice that the IBA Guidelines be employed as illustrative criteria to define the content of the duty to declare and the existence of a conflict of interest. VI. Interim Measures Can arbitrators issue interim measures or other forms of preliminary relief? What types of interim measures can arbitrators issue? Is there a requirement as to the form of the tribunal s decision (order or award)? Are interim measures issued by arbitrators enforceable in courts? According to Articles 47 and 48 of the Arbitration Act, upon constitution of the arbitral tribunal and at the request of a party, the arbitrators may grant interim measures. Article 47, paragraph 2, subparagraph a) through d) establishes different types of interim measures that a tribunal may grant, being: conservative, intended to maintain the status quo; innovative, intended to avoid injury or damage to the arbitration process; to secure assets that may 10

13 allow the further enforcement of the award; and (iv) those aimed at preserving the evidence from the risk of losing its effectiveness. According to Article 47, paragraph 2 of the Arbitration Act, the interim measure can take the form of an award or any other form. Interim measures can be enforced directly by arbitrators or through ordinary courts. Will courts grant provisional relief in support of arbitrations? If so, under what circumstances? May such measures be ordered after the constitution of the arbitral tribunal? Will any court ordered provisional relief remain in force following constitution of the arbitral tribunal? According to the provisions set forth in Article 47 ordinary courts may grant interim measures prior to the constitution of the arbitral tribunal. Upon enforcement of the measure, the party that requested it shall initiate the arbitration process within the following ten days, if not done previously. Failure to do so within this period or despite having initiated proceedings, if the arbitral tribunal is not constituted within 90 days of the issuance of the measure, the measure shall automatically expire. Once the arbitral tribunal is constituted, it is the only authority with jurisdiction to grant, modify, replace and set aside interim measures (both those issued by the tribunal as well as those issued by a judicial authority, even when dealing with final court decisions). This decision may be adopted by the arbitral tribunal, whether at the initiative of either party or, in exceptional circumstances, on its own initiative, previous notice to the parties. To what extent may courts grant evidentiary assistance/provisional relief in support of the arbitration? Do such measures require the tribunal s consent if the latter is in place? Articles 8, 45 and 48 of the Arbitration Act provides that at the request of the arbitral tribunal or the parties with the consent of the latter, it is possible to apply for judicial cooperation in the production of evidence and the implementation of interim measures granted by the arbitral tribunal. VII. Disclosure/Discovery What is the general approach to disclosure or discovery in arbitration? What types of disclosure/discovery are typically permitted? According to Article 43 of the Arbitration Act, the arbitral tribunal has the power to determine exclusively, the admission, relevance, production and value of the 11

14 evidence and order at any time the production of the evidence it deems necessary. Therefore, the types of disclosure / discovery and its scope will depend on the guidelines established for such purposes by the arbitral tribunal. Disclosure /discovery are perfectly possible but are not very common in Peruvian practice. What, if any, limits are there on the permissible scope of disclosure or discovery? The most common restriction is the confidentiality of the documents that are disclosed or requested as evidence. In such cases and referring to Article 15 of the Arbitration Rules of Arbitration of the Chamber of Commerce of Lima as an example, it shall first be assessed whether the information is confidential (that is, is information not accessible to the public or is regarded as of commercial, financial or industrial importance by the holder of the documents) and, secondly, if the evidence is actually confidential, the arbitral tribunal shall determine exceptionally to whom and under what conditions this information may be transmitted in whole or in part. Are there special rules for handling electronically stored information? VIII. Confidentiality No. If there were evidentiary material of this nature, the arbitral tribunal will determine how it will be submitted and used on a case by case basis. It is relatively common to use this kind of evidence. Are arbitrations confidential? What are the rules regarding confidentiality? According to Article 51 of the Arbitration Act, unless otherwise agreed, the arbitral tribunal, the secretary, the arbitral institution and, where appropriate, witnesses, experts and others involved in the arbitration proceedings are required, under responsibility, to maintain confidentiality over the course of the proceedings, including the award itself, as well as any information known through such actions. This obligation of confidentiality also extends to the parties, their representatives and advisors, unless, when required by law, it is necessary to make public the proceedings or the award in order to protect or enforce any right or for submitting a petition of annulment or to enforce the award in court. The only exception to confidentiality is in the case of arbitrations, governed by the Arbitration Act, in which the Peruvian government or its public institutions intervenes as a party and whose awards will be made public once the proceedings are finished. 12

15 Are there any provisions in your arbitration law as to the arbitral tribunal s power to protect trade secrets and confidential information? While not expressly stated in the law we believe that according to Article 43 of the Arbitration Act as abovementioned and evaluated, the arbitral tribunal could determine special rules for this type of information. As an example, we refer to the answer given to question of section VII. Are there any provisions in your arbitration law as to rules of privilege? No. IX. Evidence and Hearings Is it common that parties and arbitral tribunals adopt the IBA Rules on the Taking of Evidence in International Arbitration to govern arbitration proceedings? If so, are the Rules generally adopted as such or does the tribunal retain discretion to depart from them? While there are certain arbitral proceedings in which the implementation of these Rules is expressly agreed by the parties, according to Articles 34 and 43 of the Arbitration Act, the Rules can also be used referentially as part of "material practices and customs in arbitration". However, even in the instance where the use of the Rules are expressly agreed according to Article 43 of the Arbitration Act, arbitrators, are free to determine the admission, relevance, production and value of the evidence, taking such Rules as the main guiding criteria. Are there any limits to arbitral tribunals discretion to govern the hearings? No, provided that the right of defence of the parties is respected and that both parties have equal opportunities to present their case. How is witness testimony presented? Is the use of witness statements with cross examination common? Are oral direct examinations common? Do arbitrators question witnesses? Testimonies are submitted as evidence. During the hearings, witnesses may be examined by both parties, their legal representatives and by the arbitrators themselves. Direct and cross examination are usually permitted. Again, the rules of such statements are subject to the agreement of the parties or, failing that, as 13

16 determined by the arbitral tribunal. It is not common to present a written witness statement. (iv) Are there any rules on who can or cannot appear as a witness? Are there any mandatory rules on oath or affirmation? No. There are no mandatory rules on oath or affirmation, but it is common to ask the witness to take an oath or affirm to say the truth. (v) Are there any differences between the testimony of a witness specially connected with one of the parties (eg legal representative) and the testimony of unrelated witnesses? The way in which each of the statements is delivered will be defined by each arbitral tribunal in each case. This is not regulated by the Arbitration Act and there are no significant differences in practice. However, in the arbitration procedures, the Tribunal evaluates carefully the content of both type of testimonies. This is a faculty that corresponds to the Arbitral Tribunal according to Article 43 of the Arbitration Act that expressly established that the arbitral tribunal has exclusive power to decide on the admissibility, relevance, taking and weight of evidence; and the arbitral tribunal also has the power, with cause, to exclude evidence offered and not taken, according to the circumstances of the case. (vi) How is expert testimony presented? Are there any formal requirements regarding independence and/or impartiality of expert witnesses? Expert opinions are submitted as evidence by experts appointed by either the panel or the parties. Likewise, an expert witness may be summoned to give its professional opinion regarding his or her research in the hearings. It is common practice as part of the arbitrations in Peru that experts submit a statement of impartiality and independence, pledging to give an objective and technical assessment of the issues. (vii) Is it common that arbitral tribunals appoint experts beside those that may have been appointed by the parties? How is the evidence provided by the expert appointed by the arbitral tribunal considered in comparison with the evidence provided by party-appointed experts? Are there any requirements in your jurisdiction that experts be selected from a particular list? The arbitral tribunal may, on its own initiative or at the request of either party, appoint one or more experts for advice on specific issues. It is a relatively 14

17 common practice. It also will require the parties provide such expert with any relevant information by submitting the necessary documents or material or providing access to them. After the submission of the expert opinion, the arbitral tribunal either on its own initiative or at the request of a party, may summon the expert to attend a hearing in which the parties, directly or assisted by experts, shall make their comments or request the expert to support his or her statement, unless otherwise agreed by the parties. The arbitral tribunal may also request specialised agencies to appoint an expert with a high degree of specialisation in the matter; however this is optional and not mandatory. (viii) Is witness conferencing (`hot-tubbing ) used? If so, how is it typically handled? Hot-tubbing can be used by the arbitral tribunal, either of its own volition or on some occasions, as a result of the agreement of the parties. Arbitral tribunals usually call an expert evidence hearing, where experts appointed by the parties and even the expert appointed by the arbitral tribunal are placed together for joint questioning. Sometimes the tribunal may order the experts to prepare a joint report. (ix) Are there any rules or requirements in your jurisdiction as to the use of arbitral secretaries? Is the use of arbitral secretaries common? X. Awards Although the Arbitration Act does not regulate the functions of an arbitral secretary, in practice, secretaries are highly requested and the appointment of a secretary is a common practice. In ad-hoc arbitrations they are practically essential for ensuring an efficient and orderly conduct of the arbitration proceedings. In the case of institutional arbitrations, the institution administering the arbitration designates an arbitral secretary to each case. Are there formal requirements for an award to be valid? Are there any limitations on the types of permissible relief? The award must be reasoned and in writing. When there is more than one arbitrator, the majority or the president s signatures will suffice, as long as the absent members express the reasons for the absence of their signature. The award must also contain the date of issue and the place where the arbitration took place. 15

18 Can arbitrators award punitive or exemplary damages? Can they award interest? Compound interest? Arbitrators, depending on the law applicable to the merits, can award punitive damages. If requested by the parties, arbitrators can grant legal interest. If compound interest has been agreed or is legally applicable, it may also be calculated and awarded. Are interim or partial awards enforceable? Yes. In principle, partial awards are enforceable, unless they are subject to an action for annulment and the appellant party requests the suspension of its enforcement, as discussed above. However, each case will depend on the determination of whether the enforcement of the award is possible without affecting the other partial awards to be issued, that is, it must be assessed whether a partial award is perfectly distinct and independent from those that will follow, in such way that the first one can be enforced separately from the others. (iv) Are arbitrators allowed to issue dissenting opinions to the award? What are the rules, if any, that apply to the form and content of dissenting opinions? According to Article 55 of the Arbitration Act, the arbitrators may express a dissenting opinion. This opinion must be in writing and be signed, given that the signature requirement ensures a complete record of the contents and facilitates its future reference and revision by recording it in electronic or visual devices/documents. (v) Are awards by consent permitted? If so, under what circumstances? By what means other than an award can proceedings be terminated? According to Article 50 of the Arbitration Act, they are allowed. Indeed, if during the arbitration proceedings the parties reach an agreement on the resolution of the dispute, whether in whole or in part, the arbitral tribunal shall terminate the proceedings with respect to the points agreed upon. However, if requested by both parties and the arbitral tribunal sees no reason to oppose, this agreement shall be recorded in the form of an award on the terms as agreed by the parties without stating the grounds and with the award being as effective as any other award on the merits of the dispute. According to Article 60 of the Arbitration Act, the arbitral tribunal shall also order the termination of the proceedings where: the claimant withdraws its claim, unless the respondent objects thereto and the arbitral tribunal recognises the respondent legitimate interest in obtaining a final resolution of the dispute; the 16

19 parties agree to terminate the proceedings; the arbitral tribunal finds that continuation of the proceedings is unnecessary or impossible; or (iv) the panel declares itself incompetent. (vi) What powers, if any, do arbitrators have to correct or interpret an award? According to Article 58 and unless otherwise agreed by the parties, the panel may, on its own initiative or at the parties request, proceed to the rectification, interpretation, integration and exclusion of the award. It should be noted that in exercise of the integration provision, any party may request the arbitral tribunal to make an additional award in order to cover a point in dispute that was referred to the arbitral tribunal but it was not resolved by them in the award. In contrast, any party may request the exclusion from the award of any matter that was decided without having been referred to the arbitral tribunal or being capable of settlement by arbitration. XI. Costs Who bears the costs of arbitration? Is it always the unsuccessful party who bears the costs? According to Article 73 of the Arbitration Act, the arbitral tribunal shall take into account the agreement of the parties for the purposes of allocating or distributing the costs of the arbitration. Failing an agreement, the costs of the arbitration shall be borne by the losing party however, the arbitral tribunal may apportion these costs between the parties if it considers that apportionment is reasonable under the circumstances. What are the elements of costs that are typically awarded? According to Article 70 of the Arbitration Act, arbitration costs include: the fees and expenses of the arbitral tribunal and the secretary; the costs of the arbitral institution; the fees and expenses of experts; (iv) reasonable expenses incurred by the parties in their defence (ie legal fees); and (v) reasonable expenses incurred in the arbitration proceedings. Does the arbitral tribunal have jurisdiction to decide on its own costs and expenses? If not, who does? As discussed above, the tribunal has jurisdiction to decide on this issue. 17

20 (iv) Does the arbitral tribunal have discretion to apportion the costs between the parties? If so, on what basis? Yes, for this purpose we refer to the answer given to question of this section. (v) Do courts have the power to review the tribunal s decision on costs? If so, under what conditions? Judicial control of an award is thoroughly determined and limited by the grounds for annulment provided for in Article 63 of the Arbitration Act, grounds that do not include the courts power to review the tribunal s decision on costs. However, the court may review the tribunal s decision on costs if any party requests the partial annulment of an award based on a costs determination that infringes the party s agreement. This case would be a very strange and exceptional one. XII. Challenges to Awards How may awards be challenged and on what grounds? Are there limitations for challenging awards? What is the average duration of challenge proceedings? Do challenge proceedings stay any enforcement proceedings? If yes, is it possible nevertheless to obtain leave to enforce? Under what conditions? According to Article 62 of the Arbitration Act, the only way to challenge the award is the request for annulment which evaluates its validity under grounds specifically provided for in Article 63 of the Arbitration Act. In evaluating the validity of the award, the judge is prohibited from declaring on the merits of the case, on the content of the award or from evaluating the criteria, motivations or interpretations as expressed by the arbitral tribunal. The action for annulment is filed before the Sub-specialised Superior Civil Commercial Court (Civil Superior Court) or, in its territorial absence, the Civil Chamber of the Superior Court of the arbitration venue (Superior Court), within 20 working days following notice of the award. Even though the reference periods provided for in Article 64 of the Arbitration Act are quite short, given the burden of the judiciary, the approximate duration of this procedure is two years. According to Article 66 of the Arbitration Act, the filing of the request for annulment does not suspend the obligation to comply with the award or its arbitral 18

21 or judicial enforcement, unless the party challenging the award requests the suspension and meets the requirement of the guarantee agreed upon by the parties, established in the applicable arbitral rules or as determined by default by the judge. In considering the appeal, the Superior Court shall review whether the requirement has been complied with and if so, will grant the suspension. May the parties waive the right to challenge an arbitration award? If yes, what are the requirements for such an agreement to be valid? According to Article 63 of the Arbitration Act, when neither party to the arbitration is Peruvian or has its domicile, residence or principal place of business in Peruvian territory, it could be expressly agreed to waive the action for annulment or restrict such action to one or more of the grounds set forth in this article. Can awards be appealed in your country? If so, what are the grounds for appeal? How many levels of appeal are there? No. It is not permitted by the law of Peru (iv) May courts remand an award to the tribunal? Under what conditions? What powers does the tribunal have in relation to an award so remanded? According to Article 65 of the Arbitration Act, courts can return an award to the same arbitral tribunal in the case where it is annulled because of a violation of one of the parties right of defence, non-compliance with the parties agreement, regulations or applicable rules. In such circumstances, the arbitral tribunal will resume the arbitration proceedings from the moment where the right of defence of such party was manifestly violated or the agreement of the parties, regulations or applicable rule was not fulfilled. XIII. Recognition and Enforcement of Awards What is the process for the recognition and enforcement of awards? What are the grounds for opposing enforcement? Which is the competent court? Does such opposition stay the enforcement? If yes, is it possible nevertheless to obtain leave to enforce? Under what circumstances? According to Article 74 of the Arbitration Act, there are two stages in the process for the recognition and enforcement of a foreign award: first, the recognition and then, the enforcement. 19

22 Article 75 of the Arbitration Act regulates each of the grounds for refusal of recognition of foreign arbitral awards. In that order, a recognition of a foreign award may be refused at the request of the party against whom it is invoked if this party proves: incapacity of a party to the arbitration agreement or an agreement that is not valid under the law that the parties have subjected it; that the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings; that the award regards a dispute that does not fall under the arbitration agreement; that the composition of the arbitral tribunal of the arbitral proceedings were not in accordance with the agreement of the parties or, in absence of an agreement, were not in accordance with the law of the country where the arbitration took place; or that the award has not yet become binding on the parties or has been set aside or suspended by a judicial authority of the country in which, or under the law of which, that award was made. For the recognition of foreign awards, the Commercial Chamber or, in its absence, the Civil Chamber of the Superior Court of Justice of the domicile of the respondent or, if the respondent does not have his domicile within the territory of Peru, of the place where he has his assets or exercises his rights shall have jurisdiction. A statement of recognition of the award must first be obtained in order to proceed with the enforcement stage. Once the enforcement proceeding is initiated, the rules and the procedure set forth in Article 68 of the Arbitration Act shall apply. If an exequatur is obtained, what is the procedure to be followed to enforce the award? Is the recourse to a court possible at that stage? According to Article 77 of the Arbitration Act, once the recognition of the award is obtained the enforcement shall proceed as set forth in Article 68 of the Arbitration Act. For the enforcement of duly recognised foreign awards, the commercial judge or, lacking this, the civil judge of the domicile of the respondent, or if the respondent 20

23 does not have its domicile within the territory of Peru, of the place where it has its assets or exercises its rights, shall have jurisdiction. The interested party may seek enforcement of the award before the aforementioned judicial authority by providing a copy of the award and its corrections and interpretations, exclusions and additional awards and, when appropriate, of the acts of enforcement by the arbitral tribunal. The judicial authority, on the sole basis of the documents referred to in the foregoing paragraph, shall issue an order of enforcement, ordering that the party subject to enforcement fulfill his obligation within a period of five (5) days, under penalty of forced execution. The party subject to enforcement may only oppose enforcement by proving through documents that it has complied with the obligation at issue or that enforcement has been suspended in accordance with the previously commented Article 66. The judicial authority shall inform the other party within a time period of five (5) days. After this time period has elapsed, it shall decide within the following five (5) days. The decision holding the opposition to be founded may be appealed with a suspensive effect. Are conservatory measures available pending enforcement of the award? As stated in Article 66, if the party subject to the execution seeks to suspend the enforcement of the award, it must demonstrate that it has filed a request for annulment of the award and has duly complied with the rules with respect to the suspension as set forth in this article. The guarantee offered by the party subject to execution is equivalent to a conservatory measure awarded in favour of the party seeking enforcement of the award. (iv) What is the attitude of courts towards the enforcement of awards? What is the attitude of courts to the enforcement of foreign awards set aside by the courts at the place of arbitration? In order to enforce foreign arbitral awards, Articles 74 and 78 clearly establish a favourable framework leading to the enforcement of these awards. Enforcement refusals are exceptional. According to Article 75 of the Arbitration Act, if the annulment or suspension of the foreign award has been requested before a judicial authority in the country in which, or under whose law, the award has been issued, given that the award is not 21

24 yet binding on the parties or, it has been revoked or suspended by a competent judicial authority in the country in which, or under whose law the award has been issued, the Superior Court, if it considers it appropriate, may postpone its decision on recognition and at request of the party seeking recognition of the award may also order the other party to provide appropriate guarantees. (v) How long does enforcement typically take? Are there time limits for seeking the enforcement of an award? As provided in Article 68 of the Arbitration Act, the time should be short, but given the caseload of the judiciary, the average term of court enforcement of an award is approximately two years. There are no time limits to seek enforcement of an award. XIV. Sovereign Immunity Do State parties enjoy immunities in your jurisdiction? Under what conditions? No, they do not. Article 2 of the Arbitration Act expressly provides that when the arbitration is international and one of the parties is a State or a company or entity controlled by a State, that that party may not invoke the prerogatives of its own right (such as immunity) to avoid its obligations under the arbitration agreement. Are there any special rules that apply to the enforcement of an award against a State or State entity? The Fourth Supplementary Provision of the Arbitration Act provides that to enforce an award issued by an ICSID arbitral tribunal, the rules governing the procedure for the enforcement of awards issued by international tribunals shall apply, as a binding decision rendered by a court in any State, under the rules of the Convention on the Settlement of Investment Disputes between States and nationals of other countries. That is, to enforce an award issued by ICSID, for instance against the Peruvian State, the rules of the ICSID shall apply. As provided in Section 6 of the ICSID Convention, specifically, Articles 54 and 55, the ICSID award should be recognised without any review on the appropriate form or on its merits. That is, it is not subject to any approval or exequatur, so its enforcement should proceed as a final decision of a Peruvian court. Even though Peru has not expressly chosen the competent courts to recognise and enforce ICSID awards, the provisions of Law which regulate the procedure 22

25 for the enforcement of judgments issued by supranational courts, shall apply for this purpose. According to Article 2 of Law and understanding that the ICSID arbitral tribunal has been constituted under an international treaty ratified by Peru, it is understood that the award of the international tribunal shall be transcribed by the Ministry of Foreign Affairs. Regarding the requirement of transcription of the award set out in the aforementioned Law 27775, by transcription it must be understood that they are responsible for the legalisation and apostille of the arbitral awards, which are then forwarded to the Ministry of Justice to be in turn forwarded to the President of the Supreme Court, in accordance to the procedure established in that Law. The President of the Supreme Court will then forward it to the chamber where the administrative remedies were exhausted, ordering its enforcement by the special judge or board that heard the previous process. In the absence of this prior internal process, the President of the Supreme Court shall order the competent special judge or board to take knowledge of the enforcement of the award. XV. Investment Treaty Arbitration Is your country a party to the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States? Or other multilateral treaties on the protection of investments? As noted above, Peru is a party to the ICSID Convention. Additionally, and as established in Article 47 of the Legislative Decree 757, Peru is also a party to other multilateral treaties related to insurance against non-commercial risks, such as MIGA and OPIC, given that Peru has ratified the Convention Establishing the Multilateral Investment Guarantee (MIGA) and the Financial Agreement on Incentives for Investment between the Governments of Peru and the United States of America (OPIC). Has your country entered into bilateral investment treaties with other countries? Peru has signed both Bilateral Investment Protection Treaties and Free Trade Agreements that include specific chapters related to investment protection. To date, Peru has signed 34 Bilateral Investment Protection Treaties. 23

26 XVI. Resources What are the main treatises or reference materials that practitioners should consult to learn more about arbitration in your jurisdiction? The following works are highly recommended: F. Cantaurias Salaverry, Commercial Arbitration and Investment (Lima, UPC, 2008); and C. Soto and A. Bullard (ed.), Comments on the Peruvian Law of Arbitration. (Lima, Instituto Peruano de Arbitraje, 2011). Are there major arbitration educational events or conferences held regularly in your jurisdiction? If so, what are they and when do they take place? The most recognised arbitration centres such as the CCL, AmCham and the PUCP are the main promoters of discussion events and the dissemination of other arbitration related matters. However, the dates for these events are random and depend on the availability of panelists. XVII. Trends and Developments Do you think that arbitration has become a real alternative to court proceedings in your country? Since the enactment of the General Arbitration Act (Law and Legislative Decree 1071), Peru has become one of the Latin American countries where arbitration has been most developed as an efficient and predictable alternative dispute resolution mechanism to the judiciary. What are the trends in relation to other ADR procedures, such as mediation? Currently, incentives are focused on making Peru an attractive venue for international arbitrations. However, during the development of arbitration proceedings, arbitral tribunals are urging the parties to resolve their dispute either through a conciliatory agreement, mediation or settlement. Are there any noteworthy recent developments in arbitration or ADR? Currently, it is particularly relevant to mention Peru's participation in ICSID arbitrations with successful results in some cases. Likewise, and although it is still being implemented, it is worth noting that arbitration in respect of consumer 24

27 relations is being promoted. In conclusion, arbitration has become a reliable mechanism for dispute resolution that has resulted in a growth in arbitrations based in our country. 25

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