PERU’S SUBMISSION ON THE SCOPE OF PRELIMINARY OBJECTIONS

1. The Republic of Peru hereby provides observations on the scope of the preliminary objections it has notified pursuant to Article 10.20.4 of the Peru-United States Trade Promotion Agreement (the “Treaty”),1 as requested in the Tribunal’s April 8, 2014 communication.2

2. This proceeding presents the first investment dispute arising under a Treaty which entered into force in 2009 as one of the steps Peru has taken over many years to facilitate the rule of law, environmental protection, investment and development. The Treaty includes provisions that afford important rights to respondent States as well as to investors, including the right of a State to bring preliminary objections in investor-State proceedings pursuant to Article 10.20.4.

3. Try as it might, Renco cannot rewrite the rules or rob the rights that the Treaty affords to Peru (as well as the United States):

 The Treaty provides a procedure for preliminary objections. Article 10.20.4 allows “any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made.” The Parties agree that the object and purpose of this right is to provide a respondent State the means to efficiently and quickly dispose of, or curtail, claims that cannot prevail as a matter of law – and thus avoid the unnecessary burden in time and cost of fully adjudicating unmeritorious claims and the facts related thereto.

− Article 10.20.4 has two basic requirements: (i) provide for dismissal of a claim as a matter of law; and (ii) accept the facts as alleged by the claimant or otherwise rely on facts that are undisputed. Peru’s objections meet both requirements.

− Article 10.20.4(d) confirms Peru’s right to raise competence objections by providing that a State does not waive competence objections if it chooses not to raise them at the preliminary stage. Article 10.20.5 is immaterial because it provides expedited procedures that Peru chose not to use, and in no way limits the scope of Peru’s rights under Article 10.20.4.