Doing Business In... 2019 Comparisons

Last Updated August 02, 2019

Law and Practice

Authors



Estudio Muñiz (San Isidro - HQ) was founded in 1981 and relies on a team of professionals who are highly specialised in the different areas of law and thoroughly familiar with the economic sectors in which they work, which ensures the firm's legal services fit perfectly with its clients’ business strategies. Estudio Muñiz is the only firm in Peru with nationwide coverage through a vast network of offices, which enables it to offer high-quality services in almost every city in Peru. Some of its main practice groups are advertising and consumer protection, bankruptcy, capital markets and bank regulation, competition, corporate/M&A, dispute resolution, environment, fisheries, foreign trade, IP, labour, mining, oil and gas, projects, real estate and tax. The firm has more than 280 lawyers and is considered one of the top law firms in Latin America by specialised legal publications.

Peru has a civil law system. The judicial system is organised into trial courts and higher appeal courts. However, under the civil law system, judicial precedent is not the most important source of law. Regulations are mostly derived from statutes and codes.

Foreign investments do not require special approval from authorities. The only exception to this rule is when an investor intends to acquire any fixed assets (lands, mines, energy plants, etc) located within 50 km of the Peruvian border. In this case, foreign persons may not directly or indirectly own such fixed assets, including through a Peruvian company.

Foreign investors must obtain a permit by filing a request before the corresponding ministry (this will depend on the economic sector of the activity that will be carried out in the property). The approval of such request is determined on the basis of (i) the ministry’s analysis of whether the investment that shall be made in the fixed assets makes a considerable contribution for the community (ie, generates employment) and (ii) whether it is considered a risk to national security by the Ministry of Defence.

This authorisation is not transferable to another foreign investor, as they must request authorisation from the ministry.

Foreign investors do not generally require authorisation from the Peruvian government.

Foreign investors do not generally require authorisation from the Peruvian government.

Foreign investors do not generally require authorisation from the Peruvian government.

Corporations are the most widely used vehicle in Peru. Under Peruvian law, there are three types of corporation: a corporation (Sociedad Anónima), a closely held corporation (Sociedad Anónima Cerrada) and an open corporation (Sociedad Anónima Abierta).

Corporation (Sociedad Anónima)

The corporation is a limited liability anonymous corporate vehicle. It is managed by the shareholders’ meeting, the board of directors and management. The transfer of shares is generally unrestricted, as there is no right of first refusal set forth in the applicable law (although it can be freely agreed upon by the shareholders).

Closely Held Corporation (Sociedad Anónima Cerrada)

The closely held corporation is a limited liability anonymous corporate vehicle. It is managed by the shareholders’ meeting, management and, if the shareholders agree, the board of directors. Unlike the corporation, it is not mandatory for the company to have a board of directors.

There must be a minimum of two and a maximum of 20 shareholders. The transfer of shares is subject to the right of first refusal to be exercised by the remaining shareholders before the shares are transferred to a third party. The bylaws of a closely held corporation can limit the transfer of shares to the prior approval thereof by the shareholders’ meeting and can even establish that if any of the shareholders dies, the remaining shareholders will have the right of first refusal to purchase the shares, enjoying priority over the lawful heirs of the decedent.

Open Corporation (Sociedad Anónima Abierta)

The open corporation is a limited liability company that (i) has made a primary public offering of shares or obligations that can be converted into shares, (ii) has at least 750 shareholders, or (iii) more than 35% of the capital stock is held by 175 or more shareholders, without considering shareholders whose shares, individually considered, do not reach 2/1,000 of the capital stock or exceed 5% of the capital stock. However, there can be a smaller number of shareholders (no fewer than two) when the corporation is incorporated in that way or when 100% of the shareholders holding voting shares agree to incorporate this type of corporation. In such event, it is not possible for the bylaws to contemplate any right of first refusal and all the shares will have to be registered on the Stock Exchange Public Registry.

The main steps to incorporate a company in Peru are the following.

  • Search and reservation of the name of the corporation to be incorporated, in order to make sure that said name is available at the Public Registry Office.
  • Drafting of the articles of incorporation (once the bylaws are ready).
  • Filing of the articles of incorporation with a notary’s office in Lima.
  • The amount of the capital stock of the corporation must be deposited in a Peruvian financial entity designated for such purpose.
  • Conversion of the articles of incorporation into a legalised instrument (public deed) and signing of the public deed. If the corporation has been incorporated by non-domiciled shareholders then before signing the public deed it will be necessary to take the steps required to have a power of attorney granted at the Peruvian Consulate, as aforesaid.
  • Filing of the public deed with the public registry office in and for Lima.
  • Filing of an application to get the corporation’s Taxpayer’s ID Number (RUC).
  • Legalisation of the register of shareholders and directors (if any), and ledger book.

Generally, private companies are not subject to reporting and disclosure obligations. Matters such as changes in management, amendments to the bylaws, powers of attorney and capital increases are registered in the Peruvian Public Registry.

The main management bodies of a company are the shareholders’ meeting, the board of directors and the general manager. Closely held corporations can forgo the existence of a board of directors and be managed by the board of directors and the shareholders’ meeting.

Generally speaking, the shareholders’ meeting is the most important body in a company. It approves all relevant decisions and is not limited in its powers.

Generally speaking, directors are liable under Peruvian legislation before the company, shareholders and third parties for damages caused with intent or grave negligence, as well as any acts made outside the scope of the bylaws and the law.

Piercing the corporate veil is not a well-developed concept in Peruvian law and jurisprudence. It has been applied in very restricted cases and the rules for application are not clearly set. At a conceptual level, the corporate veil can be pierced in the event that the corporate form is used in a fraudulent manner.

Employment relationships in Peru are governed by private sector employment laws, which are considered mandatory public policy in Peru. The parties only have autonomy to increase legal employment benefits, but they cannot be diminished by an agreement between the parties.

Furthermormore, employees subject to special regimes such as construction or agriculture often enter into collective agreements that regulate employment relationships with employees belonging to an entire sector.

Contracts may be open-ended or, by way of exception, fixed-term. If they are for an indeterminate period, they may be verbal except for certain cases, such as foreigners or part-time workers.

In the case of fixed-term contracts, they must be written and fit into one of the types of temporary contracts established by law. The contract must include the purpose and term of the contract.

The agreements must also contain the health and safety guidelines that apply for the specific position that will be filled by the employee as well as the general health and safety recommendations applicable to all employees.

Furthermore, the agreement must contain a job qualification (management or regular employee), salary (specifying if it is integral annual, net or gross, if there are variables or if it is fixed) and whether the worker is subject to a schedule and probationary period (if any).

The maximum working time is 48 hours a week or eight hours a day. Depending on the activity or need of the company, atypical or cumulative working days can be agreed as long as on average they respect this limit.

There is no minimum; part-time work is considered to be that which is less than four hours or 24 hours per week in a six-day working week. Part-time employees do not have the right to time-served compensation (CTS, according to its initialism in Spanish), they do not have the right to work stability (payment of severance for arbitrary dismissal) and they do not have vacations, although by international standards they are granted six or seven days.

For the first two overtime hours, an additional rate of 25% must be applied, and for the remaining hours an additional rate of 35% must be applied with respect to the value/hour.

Every worker has the right to a minimum of 45 minutes of refreshment, which should preferably be taken during the hours corresponding to the main meals of the day and, unless otherwise agreed, does not form part of the working day.

Contracts may only be terminated for a valid reason established by law: waiver or mutual agreement.

An employee that does not meet a minimum working day of four hours may be dismissed without cause attributable to their conduct (serious misconduct) or ability (eg, a supervening disability).

When the cause is attributable to conduct, it is necessary to follow a dismissal procedure that begins with the issuance of a notice of dismissal letter in which the employer must (i) identify the fault from an exhaustive list of causes, (ii) describe the facts and (iii) provide proof that the employee committed the violation.

After that, the employer must grant the employee six days to file any oppositions. After this period has expired, the employer can send the dismissal letter. If the employee files any oppositions, there are two options: the procedure is annulled or the sanction is modified (from dismissal to another form of sanction).

If the dismissal proceeds with cause, no severance is due. If the dismissal is without cause, the employee can request severance or reinstatement. The compensation is a salary and a half for each year of service up to 12 salaries. If there was a fixed-term agreement, the severance is equal to a salary and a half for each month remaining until the expiration of the agreement, with a maximum of 12 salaries.

Demanding severance does not exclude a claim for other types of compensation, such as moral damages.

Employers may implement collective redundancies under the following conditions:

  • it must be for the reasons set forth by law (economic situation or restructuring);
  • it requires authorisation from the Ministry of Labour; and
  • a letter must be sent to the employees and a meeting held with the employees, and then the petition may be filed with the Ministry of Labour.

In practice, it is very unlikely to obtain an authorisation for collective redundancy from the Ministry of Labour.

Employees are mainly involved in health and safety requirements. The regulations require an active participation from employees through a health and safety committee or health and safety representative in the case of companies that have fewer than 20 employees.

Salaries and, in general, any type of revenue received by employees as a result of their employment relationship are considered fifth-category income and are subject to the payment of income tax, which must be withheld by the employer.

The employer must withhold every month a percentage of the annual income tax levied on the annual fifth-category income received by employees considered to be domiciled in Peru for tax purposes.

To this end, the employer must first calculate the annual income tax payable by each employee by applying the following rates to the estimated fifth-category income (less than seven tax reference units, or UITs, according to its initialism in Spanish, which is the only deduction to be made by the employer), according to the following table.

  • Up to UIT5 earned by adding the net earned income and the Peruvian-source income: 8% rate.
  • Over UIT5 to UIT20: 14%.
  • Over UIT20 to UIT35: 17%.
  • Over UIT35 to UIT45: 20%.
  • Over UIT45: 30%.

Once the employee’s annual income tax has been calculated, the amount to be withheld every month from the employee’s remuneration will be calculated.

Companies incorporated in Peru are subject to four main taxes: income tax, value-added tax (IGV, according to its initialism in Spanish), temporary tax on net assets (ITAN, according to its initialism in Spanish) and tax on financial transactions (ITF, according to its initialism in Spanish).

Income Tax

Companies must pay annual net revenues, regardless of where the source is located. The corporate income tax rate is 29.5%. The company must make income tax prepayments on a monthly basis. These payments will be calculated by applying a coefficient that cannot be less than 1.5% to the monthly net revenues.

Expenses related to business activities can be deducted (with very few exceptions) in order to calculate the taxpayer’s annual net income. The following are the depreciation deduction percentages that are permitted by law.

  • Buildings and constructions: 5%.
  • Land transport vehicles (except trains): up to 20%.
  • Machinery and equipment: up to 10%.
  • Data processing equipment: up to 25%.
  • Other fixed assets: up to 10%.

Intangible assets can be amortised in a single fiscal year or in up to ten years.

Losses shown in any fiscal year can be carried forward to future fiscal years, according to either of the following methods: (i) under method A, losses can be carried forward within a period of four fiscal years counted as from the date they were incurred and (ii) under method B, losses can be carried forward indefinitely, although they can only be compensated against a maximum amount equivalent to 50% of the annual net income obtained during the next fiscal years.

This tax must be paid, and the applicable tax return must be filed within a term of four months counted as from the end of the fiscal year. Accordingly, the tax authority will publish the schedule of expiry dates. Each fiscal year begins on January 1st and ends on December 31st.

Any distribution of dividends or any other concept considered 'dividends' for tax purposes is subject to a withholding rate of 5%.

This tax must be withheld and paid to Sunat, the Peruvian customs and taxation authority, within the term established for the payment of taxes from the month in which (i) dividends are paid to the shareholders or (ii) the shareholders’ meeting approves the proposal for the distribution of dividends, whichever occurs earlier in time.

It is worth mentioning that to substantiate the fulfilment of the transfer pricing guidelines, taxpayers must file every year the following sworn statements, if applicable:

  • the Informational Sworn Statement – Local Report, provided the income accrued in the tax year exceeds UIT2,300;
  • the Informational Sworn Statement – Master Report, provided the taxpayers form part of a group whose income, accrued during the tax year, exceeds UIT20,000; and
  • the Informational Sworn Statement – Country-by-Country Report, provided the taxpayers form part of a multinational group.

Value-added Tax

IGV is levied on the sales price or consideration agreed upon with respect to the following transactions:

  • the sale of real property in Peru, including some intangible property;
  • the rendering of services in Peru;
  • construction contracts;
  • the first sale of real property (other than land) by the construction company; and
  • the import of goods and services.

Concerning the transactions referred to in the first four items, IGV is calculated and paid on a monthly basis by compensating the IGV (accumulated from said transactions) against the IGV borne by the company (paid by the company for the purchase of goods, import or rendering of services and import of goods related to its object).

Concerning the import of goods, IGV will be paid at the time of requesting the entry of the relevant goods into Peru. Finally, as far as the import of services is concerned, IGV will be paid within the term available to pay the taxes payable in the month in which the services are paid for to the supplier or the invoice is registered in the purchase register, whichever occurs earlier.

The export of goods and the export of services, provided they comply with certain requirements, are not subject to IGV. Exporters can apply for a refund of the IGV they have borne, up to a limit equivalent to 18% of the value of their exports or compensate said amount against any tax they must pay to the national government (that is, income tax and the temporary tax on net assets).

The effective IGV rate applicable in 2019 is 18% (IGV of 16% and Municipal Promotion Tax – or IPM, according to its initialism in Spanish – of 2%).

Temporary Tax on Net Assets

ITAN is levied on the total value of the company’s net assets, the applicable rate being 0.4% (PEN1,000,000 will be deducted from this total value). This tax can be paid either in one instalment (within the term established for the payment of taxes accrued in March) or in nine instalments.

Once paid, this tax can be compensated against the income tax prepayments or against the annual income tax payment to be made in the same fiscal year. If it is compensated against the annual income tax payment and there is still an outstanding balance then the company will be authorised to apply for the refund of said balance.

Tax on Financial Transactions

ITF is levied on any amount debited from or credited to any bank account kept in Peru’s banking system. The ITF rate is 0.005%. Some transactions are exempt from ITF, such as the payment of taxes, deposits and payments made in accounts opened by employees exclusively for the payment of their salaries.

Not applicable.

Under Peruvian tax law, foreign taxes paid in the execution of an investment in Peru may be applied as tax credit. However, the tax credit shall only be for up to the amount of the similar tax applicable in Peru. The Peruvian tax authority shall determine what the applicable tax would be in Peru under similar circumstances for a similar expense in order to determine the maximum tax credit applicable.

These rules shall only be applied in the event that the foreign tax is from a country that does not have an international double taxation agreement with Peru. Otherwise, the regulations stated in the applicable agreement shall be employed.

A company in Peru may not take on an unlimited amount of debt. Tax law sets forth that a company may only be leveraged for an amount up to three times its net worth of the previous fiscal year.

The above-stated rule is only applicable for 2019 and 2020. Starting in 2021, the maximum amount of debt shall be calculated on the basis of interest. The tax authority shall calculate a 'net interest' from the interest paid by a company on debt and the interest received by a company from credits. Such 'net interest' may not exceed 30% of the company’s earnings before interest, taxes, depreciation and amortisation (EBITDA).

If these debt ratios are exceeded, the excess in debt shall not be deductible for tax purposes. This rule has certain exceptions:

  • banking and insurance companies;
  • companies with a net income of under UIT2,500;
  • public-private associations developing infrastructure, or technology investigation or innovation projects; and
  • financing for infrastructure, public service and technology innovation or investigation.

All operations carried out in Peru must be at market value. When the operation will be carried out between affiliated parties, market value must be accredited though a technical transfer pricing report.

In the event that an operation is not carried out at market value or does not coincide with transfer pricing studies, the Peruvian tax authority is entitled to calculate the applicable tax on market value rather than the value agreed between the parties.

Tax evasion rules are applicable in Peru. The Peruvian tax authority is entitled to diminish any tax advantage when such advantage is acquired through acts or mechanisms that (i) individually or jointly are improper artifices for obtaining the required result and (ii) their use results in legal or economic consequences (beside the tax advantage) that are equal to or similar to those obtained with the proper or common acts or mechanisms.

According to the Law of Merger Control, an act of concentration must be notified when it confers control to the purchaser or the resulting company and exceeds the thresholds in terms of sales and/or gross income established by said law. An operation will qualify as an act of economic concentration if it supposes a transfer or change of the control of a company or part of it. Those acts can be the following:

  • a merger between two or more firms or companies;
  • an acquisition of shares that confers to the owner the control of the company;
  • joint ventures or another form of associative contract; and
  • acquisition of control of the productive and operative assets from another company, through property rights or other legal powers.

Given that the transaction would be deemed as a concentration operation, previous authorisation may be required if (i) the sum of the total gross sales in Peru of both parties reaches or exceeds approximately USD150 million or (ii) the total gross sales in Peru of both parties reaches or exceeds approximately USD31 million each.

Please note these thresholds are related to total gross sales of each company, including its economic group, and are not limited to sales of relevant products under the transaction.

The request for the authorisation must be submitted by the companies involved, attaching the background of the transaction. The authority, within a period of ten working days, will admit the request or, if applicable, will require the correction of the observed defects.

If the concentration operation does not generate significant restrictions to an effective competition, it will be authorised within 30 working days from the initiation of the proceeding. On the other hand, if significant restrictions are determined, the authority will initiate a 90-day second stage (extendable for 30 additional days), in order to evaluate possible restrictions to competition in greater detail and the existence of sufficient and reasonable economic efficiencies necessary, and offset possible restrictive effects. Finally, the authority may authorise the operation, authorise it imposing compensating conditions, or deny it.

The competition agency will consider factors such as the structure of the relevant market, real or potential competition, sources of distribution and commercialisation, creation or strengthening of a dominant position, generation of economic efficiencies, etc as variables to evaluate in order to decide whether to authorise the operation.

If the authorisation is denied, the applicants may file an appeal before a tribunal at the National Institute for the Defence of Competition and Intellectual Property (Indecopi), which must decide within a maximum period of 90 working days.

It should be noted that no business concentration operation can be executed or have effects before the authority has expressly authorised the merger.

Concerted practices are those agreements, between two or more economic agents, aimed at restricting free competition. They could be horizontal or vertical collusions.

Horizontal Collusion

This is an agreement between direct competitors. Some horizontal agreements are considered so harmful to society that the Law of Competition considers them to be 'absolute prohibitions'; that is, said conducts are illegal as such (per se) and no justification or further market analysis regarding their effects matters. Those per se illegal horizontal agreements (or cartels) may exclusively involve the following:

  • fixing prices or other commercial or service conditions;
  • limiting production or sales, in particular via quotas;
  • the distribution of clients, suppliers or geographical areas; or
  • bid rigging.

In such per se illegal cases, the antitrust agency conclusively presumes such agreements to be illegal once identified, without enquiring into their claimed business purposes, anti-competitive harms, pro-competitive benefits, or overall competitive effects.

On the other hand, if the conduct is not found to be one of the previous assumptions, it will be analysed under the rule of reason, because it is under a relative prohibition. To determine the violation of a relative prohibition, it is necessary to prove negative economic effects. For example, a concerted practice that consists of blocking the entry of a competitor to the market in an unjustified way is a relative prohibition.

Vertical Collusion

This is an agreement between agents in different stages of the productive or commercialisation processes (eg, wholesale distributor and a retailer) entailing exclusive dealing, unjustified refusal to deal, tied sales and anti-competitive discrimination, among others, in order to cause an undue restriction on competition.

These agreements are also 'relative prohibitions' and are consequently examined under a 'rule of reason' analysis in order to deem them anti-competitive. In addition, it is necessary for one of the agents to have a dominant position. Finally, Indecopi’s competence to sanction these behaviours requires the economic effects to fall into Peruvian territory.

Peruvian law is applicable to all those conducts that produce or can produce anti-competitive effects in Peruvian territory, even when an act originated abroad.

Sanctions

Sanctions for carrying out anti-competitive infringements are mainly economic fines for entities and legal representatives. Fines for very serious infringements can be higher than UIT1,000, provided that the fine does not exceed 12% of the sales or gross income received by the undertaking, or its economic group, relative to all its economic activities.

In addition, such fines shall also apply to natural or legal persons who, without competing in the market in which the conduct occurs, act as planners, intermediaries or facilitators of cartels.

Likewise, a fine of up to UIT100 could also be imposed on natural persons who – exercising the direction, representation or management of any of the offending undertakings – have participated in planning, carrying out or executing anti-competitive behaviour.

A dominant firm can act in the market independently of the reactions of its competitors, customers or suppliers, being able to restrict the supply of its product or increase its prices. The dominant position is determined in a relevant market, consisting of the product market (which includes product substitutes) and the geographic market. In addition, competing companies, suppliers or customers cannot counteract the effects of the conduct. These are conducts and practices such as:

  • exclusive dealing – hiring exclusively with an economic agent;
  • unjustified refusal to deal – refusing to sell or provide a good or service to another economic agent;
  • tied sales – selling or providing a good or service to another agent, on condition that they acquire another that they do not consider necessary;
  • anti-competitive discrimination – discriminating against another agent to exclude him from the market; and
  • sham litigation – employing judicial or administrative mechanisms to exclude an agent from the market.

They are performed by a dominant firm in a relevant market that uses its dominance to exclude competitors and thus restrain competition. Such conducts are 'relative prohibitions' and are consequently examined under a 'rule of reason' analysis in order to deem them anti-competitive.

The rule of reason is a legal approach by competition authorities to attempt to evaluate the pro-competitive features of a restrictive business practice against its anti-competitive effects as a method to decide whether the practice should be prohibited.

Peruvian law is applicable to all those conducts that produce or can produce anti-competitive effects in Peruvian territory, even when an act originated abroad.

Sanctions

Sanctions for carrying out anti-competitive infringements are mainly economic fines for entities and legal representatives. Fines for very serious infringements can be higher than UIT1,000, provided that the fine does not exceed 12% of the sales or gross income received by the undertaking, or its economic group, relative to all its economic activities.

In addition, such fines shall also apply to natural or legal persons who, without competing in the market in which the conduct occurs, act as planners, intermediaries or facilitators of cartels.

Likewise, a fine of up to UIT100 could also be imposed on natural persons who – exercising the direction, representation or management of any of the offending undertakings – have participated in planning, carrying out or executing anti-competitive behaviour.

Upon the filing of a patent registration application in Peru, whether for an invention or utility model, the applicant must include a clear and full description of the invention, a list of claims and a summary. If necessary, examples and images that help the understanding of the invention or utility model being claimed will be attached.

The whole procedure required in order to have an invention patented lasts approximately three to four years. In the case of utility models, this term can be reduced to two years.

However, if the matter in question is complex and oppositions are filed by third parties then the above periods could be extended.

The holder of a patent granted for an invention, utility model or industrial design can file an infringement action against whoever infringes its rights. An infringement action can also be filed when there is an imminent danger that the rights of the patent holder will be infringed.

In addition, the infringement of rights to invention patents, utility models or industrial designs is typified as a crime, as provided for in Title VII of the Criminal Code.

The application, registration, protection and effective force of trade marks in Peru are regulated by Decision 486, Common Industrial Property Regime (the Decision) and by the provisions set forth in Legislative Decree 1075, which approved some provisions that supplement Decision 486 (the decree).

The competent authority is Indecopi.

In order to protect intellectual creations, particularly trade marks, Indecopi has three internal bodies: the Directorate of Distinctive Signs (DSD, according to its initialism in Spanish), the Commission on Distinctive Signs (CSD, according to its initialism in Spanish) and the Intellectual Property Courtroom of the Tribunal for the Defence of Competition and Protection of Intellectual Property (the Intellectual Property Courtroom).

The DSD is in charge of matters related to the registration of trade marks, trade names, slogans and designations of origin in Peru, including changes to and renewals of trade marks, trade names, slogans and designations of origin.

The DSD is in charge of resolving non-contentious proceedings, while the CSD will be in charge of resolving contentious proceedings.

The ownership of trade marks (except for trade names) is obtained once the relevant trade marks are registered with Indecopi’s DSD.

In Peru, it is possible to register a trade name. However, its registration is not constitutive but merely declarative, as the rights to a trade name are acquired and preserved by using the trade name on the market.

In Peru, trade marks are protected for a term of ten years, renewable for like periods indefinitely.

The trade mark registration procedure takes approximately three to five months if no oppositions are filed. When an opposition is filed, the registration procedure lasts approximately nine months at the CSD.

Unlike other countries, Peru does not require the filing of a statement of use from time to time. However, the CSD can cancel, at the request of any party, the registration of a trade mark if it has not been used for a period of three consecutive years immediately preceding the start of the cancellation action. In this kind of proceeding, the burden of proof rests on the trade mark owner, who must prove that the trade mark is being used in respect of products registered in Peru or any Andean Community member country (Bolivia, Colombia or Ecuador).

If the applicant is a company, then in order to represent the company in a registration procedure, the company must grant a power of attorney signed by the legal representative of the company indicating the position he or she fills in the company. No legalisation is required and the power of attorney can be sent by e-mail as the original is not required.

Trade mark registration confers upon its holder the exclusive right to use the trade mark, so the owner can bring an infringement action against any third party unduly using its trade mark and infringing its rights. An infringement claim can also be filed when there is an imminent danger that the rights of the trade mark holder will be infringed.

Moreover, whoever files or intends to file an infringement action can request CSD to grant it injunction relief immediately in order to prevent the infringement, avoid its consequences, obtain or preserve evidence, or guarantee the efficacy of the action or a redress for damages. It is possible to request injunction relief before the action is filed, at the time the action is filed or after the action is filed.

In addition, the infringement of rights to distinctive signs is typified as a crime, in keeping with Title VII of the Criminal Code.

Concerning applications for the registration of industrial designs, the applicant must file a set of drawings or images of the product with the new design, including all views of the product – side, front, rear, upper, lower and isometric views – in order to give a complete idea of the design of the product. The procedure can be completed in around eight months. However, if the matter in question is complex and oppositions are filed by third parties then this period could be extended.

The holder of a patent granted for an industrial design can file an infringement action against whoever infringes its rights. An infringement action can also be filed when there is an imminent danger that the rights of the patent holder will be infringed.

In addition, the infringement of rights to industrial designs is typified as a crime, as provided for in Title VII of the Criminal Code.

Copyrighted work may be registered in Peru. The registration of a copyrighted work is not constitutive of rights – it is merely declarative – and is effective for proof purposes. Copyrights and copyright protection arise from the very moment a work is created.

Registration applications are filed with Indecopi’s Copyrights Directorate (DDA), which will examine whether the formal and originality requirements are fulfilled in order to authorise registration. The legal rules currently in force with regard to copyrights contain the minimum protection requirements to be fulfilled.

The process involved in the registration of a copyrighted work takes approximately 15 business days at DDA. If DDA rejects the registration application then an appeal can be filed in the last administrative instance with the Intellectual Property Courtroom.

In Peruvian legislation, the author or creator is always an individual. The author is therefore the copyright holder, barring exceptions of presumed assignment contemplated in the law, or contractual assignment of property rights.

Copyrights involve both moral rights and IP rights of an economic nature. The former includes the right of disclosure, the right of authorship, the right to integrity, the right to make modifications and the right to withdraw from a publication. These rights are inalienable, perpetual, non-attachable and non-waivable. The latter includes the right to perform, authorise or prohibit the reproduction, public disclosure, distribution, translation and import of a work, and the right to obtain economic benefits from said acts.

Barring some exceptions, these rights last up to 70 years after the death of the author, in which case they are exercised by the heirs. Upon expiration of this term, the relevant works become public domain and can be freely used, without prejudice to the fulfilment of the moral rights, which are perpetual.

If the acknowledged rights of a copyright holder are infringed, the copyright holder can bring an infringement action with DDA and can even request the adoption of immediate measures to prevent the commission of the infringement, avoid its consequences, obtain or preserve evidence, guarantee the efficacy of the action, or redress the damage caused. It is possible to request injunction relief before the action is filed, at the time the action is filed or after the action is filed.

In addition, the infringement of copyrights is typified as a crime, as provided for in Title VII of the Criminal Code.

All intellectual, personal and original creations – such as literary and artistic works, computer software, drawings, photographs, musical works and audiovisual works – are protected in Peru. This protection applies to all works of the mind, regardless of their country of origin, gender, form of expression, merit or purpose. Moreover, copyright-related rights – such as the rights of artists, interpreters or performers, phonogram producers and broadcasting companies – are also protected.

The main obligations that must be fulfilled in data protection are the following:

  • register all personal data banks, such as employees, applicants, clients, potential clients and suppliers;
  • obtain authorisation from the persons whose data is collected, which must be prior to such event, free, expressly given and informed;
  • implement technical, organisational and legal security measures; for example, confidentiality agreements with employees and service providers, organisational manuals and technical safety protocols; and
  • implement a simple procedure so persons may access their 'ARCO rights' (access, rectification, cancellation and opposition).

The geographical scope of Peruvian regulations in data protection encompasses any data treatment in Peru, directly or directly. That is, if a foreign company collects information for potential clients in Peru, Peruvian data protection regulations shall be applicable through a local establishment of the company or a local service provider.

The agency in charge or personal data protection in Peru is the National Authority of Data Protection. Its main function is to enforce data protection regulation, which is carried out through audits and claims of breach filed by individuals and legal persons.

Muñiz, Olaya Meléndez, Castro, Ono & Herrera Abogados

Las Begonias No.475, 6th floor
San Isidro,
Lima
Peru 27

+51 1 611 7000

contactenos@munizlaw.com www.munizlaw.com
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Estudio Muñiz (San Isidro - HQ) was founded in 1981 and relies on a team of professionals who are highly specialised in the different areas of law and thoroughly familiar with the economic sectors in which they work, which ensures the firm's legal services fit perfectly with its clients’ business strategies. Estudio Muñiz is the only firm in Peru with nationwide coverage through a vast network of offices, which enables it to offer high-quality services in almost every city in Peru. Some of its main practice groups are advertising and consumer protection, bankruptcy, capital markets and bank regulation, competition, corporate/M&A, dispute resolution, environment, fisheries, foreign trade, IP, labour, mining, oil and gas, projects, real estate and tax. The firm has more than 280 lawyers and is considered one of the top law firms in Latin America by specialised legal publications.

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