Peru - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Arbitration is considered a jurisdictional way for the resolution of disputes, even it is applicable to public entities, and can be agreed with rules of national or international courts (Articles 63 and 139.1 of the Constitution). This route, managed by individuals and private institutions is the most used, is regulated by the Peruvian Arbitration Law, which respects the UNCITRAL model law.

The Justice Department issued a Law that promotes Alternative Dispute Resolution: conciliation, arbitration and mediation (Law 26872), performing free services nationwide, for any individual who wishes to resort to government centers.

Especifically regarding arbitration the current law on arbitration, (Legislative Decrete N° 1071 of June 27th, 2008; hereinafter “current law”) came into force on September 1st, 2008, replacing the General Law on Arbitration (Law N° 26572) which was in force from 1996.

Law N° 26572, inspired by the UNCITRAL Model Law of 1985, was a good one. However, further perfection and improvements have been sought, taking into account the arbitration experience and changes made to the UNCITRAL Model Law of 2006 and foreign legislation on arbitration.

It can be said that the current law has been inspired by the following principles:

a) Strengthening the autonomous character of arbitration, of both ordinary jurisdiction and common procedural rules.

b) Protecting arbitration from inappropriate interventions from the judiciary, restricting the judge’s participation to only what is necessary.

c) Improving the regulation of the remedies which can be used against an arbitration award.

d) Improving the injunctive reliefs available to avoid conflict with those dictated by the courts.

e) Establishing a better regulatory system from the enforcement of arbitration awards.

f) Establishing arbitration as attractive option for international dispute resolution.

Table of Contents:

I. INTRODUCTION: ARBITRATION IN PERU–HISTORY AND INFRASTUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to Arbitration

2. Current law

a) Distinction between national and international arbitration

3. Law reform projects

4. Confidentiality and publication of awards

a) Publication of awards

b) Practice of publication – where?

B. Arbitration Infrastructure and Practice in Peru

1. Major arbitration institutions

2. Development of arbitration compared with Litigation

II. CURRENT LAW AND PRACTICE

A. Arbitration agreement

1. Types and validity of agreement

a) Clauses and submission agreements

b) Minimum essential content

c) Form requirements

d) Incorporation by reference

e) Interpretation

2. Enforcing arbitration agreements

3. Effects on third parties

4. Termination and breach

B. Doctrine of Separability

C. Jurisdiction

1. Competence-Competence

2. Interaction of national courts and tribunals

D. Arbitrability

1. Subjective Arbitrability

2. Objective Arbitrability

E. Arbitration Tribunal

1. Status and qualifications of arbitrators

a) Number of arbitrators

b) Qualifications and accreditation requirements

2. Appointment of arbitrators

a) Methods of appointment

b) Appointing authorities

c) Effect of the refusal of one party to co-operate in the constitution of the arbitral tribunal

d) Resignation and its consequences

3. Challenge and removal

a) Grounds for challenge

b) Procedure for challenge

c) Replacement of arbitrators

4. Arbitrator liability and immunity

a) Duties and liabilities of arbitrators regarding the conduct of the proceedings

b) Possibility to restrict or exclude the arbitrators’ liability

F. Conducting the Arbitration

1. Law governing procedure

a) Notion and role of seat of arbitration

b) Methods for selection of seat absent party choice

c) Mandatory rules of procedure

2. Conduct of arbitration

a) Party autonomy and arbitrators’ power to determine procedure

b) Tribunal’s power to issue procedural orders

c) Oral hearing or proceeding on basis of written documents

d) Submissions and notifications

e) Legal representation

3. Taking of evidence

a) Admissibility

b) Burden of proof

c) Standards of proof

d) Documentary evidence and privilege

e) Witnesses

f) Experts

4. Interim measures of protection

a) Types of measures

b) Security for costs

c) Enforcement mechanisms

5. Interaction between national courts and arbitration tribunals

a) Court assistance before the arbitration

b) Court assistance during the arbitration

6. Law and rules of law applicable to the merits

a) Party autonomy

b) Determination by arbitrators

c) Non-national substantive rules, general principles

of law and transnational rules

d) Applicable substantive law absence a choice of law by the parties

7. Costs

a) Arbitration costs

b) Legal costs

c) Security for costs

d) Costs of the administration by an

arbitration institution

G. Arbitration Award

1. Types of award

a) Partial awards

b) Final awards

c) Interim awards

d) Default awards

2. Form requirements

a) Essential content

b) Reasons

c) Time limits for making award

d) Notification to parties and registration

3. Decision making

a) Majority or Consensus?

b) Dissenting and concurring opinions

c) Signature

4. Settlement

a) Settlement recorded in an award

b) Settlement without an award

5. Correction, supplementation and amendment

a) Correcting the award

b) Interpretation of award

H. Challenge and Other Actions against the Award

1. Setting aside of the award

a) Grounds

b) Procedure and deadlines for challenging an award

c) Effects of successful challenge

d) Appeal against the court´s decision to set aside or not set aside the award

e) Possibility of the parties to exclude, limit or expand actions for setting aside

2. Appeal on the merits

III RECOGNITION AND ENFORCEMENT OF AWARDS

A. Domestic Awards

B. Foreign Awards

1. Various regulatory regimes

a) Domestic rules

b) Other international conventions

2. Application of the New York Convention by local Courts

IV. APPENDICES AND RELEVANT INSTRUMENTS

A. National Legislation

B. Major Arbitration Institutions

C. Cases

D. Bibliography