International Arbitration 2024 Comparisons

Peru is one of the jurisdictions in Latin America where the use of arbitration (whether international or local) has been the most favoured in the last ten years. 

Arbitration is by far the preferred dispute resolution mechanism by private parties involved in international commercial contracts. 

Lima has become a common seat of arbitration for international disputes in recent years. Likewise, foreign awards are regularly recognised and enforced by Peruvian courts under a flexible standard.

There is no official data available to confirm significant arbitration activity in recent years in a particular industry. However, based on our experience, the energy, mining and transport sectors have had significant international arbitration activity recently, and well as construction disputes in public contracts. It is worth noting that the arbitration market has also grown significantly as arbitration is mandatory in contractual disputes between government entities and their contractors (including sectors such as construction, PPP, and renewable energy).

From our perspective, there has also been an increase in M&A disputes due to a wave of acquisitions by foreign companies in the Peruvian market, and a rapid rebound of M&A transactions in 2023, bolstering a notable increase in the number of transactions compared to 2022 (nearly reaching pre-pandemic levels).

The most used arbitral institutions for international arbitration in Peru are: 

• the Arbitration Centre of the Lima Chamber of Commerce (LCC);
• the Arbitration Centre of the American Chamber of Commerce (AMCHAM);
• the Centre for Dispute Resolution of the Catholic University of Perú (PUCP).

These arbitral institutions are located in Lima and have lists with renowned national and foreign arbitrators. LCC is particularly well known in the Peruvian market for the good and effective management of their cases. The Centre for Dispute Resolution of the Catholic University of Perú is well known for managing state-related disputes, being the preferred arbitration centre of several state entities. 

According to the Peruvian National Registry of Arbitration Centres, as well as other publicly available information, 41 arbitration centres started their operations between 2023 and 2024. There are some concerns within the arbitration community, however, as to the transparency and independence of some of the new arbitration centres.

Commercial courts are competent for the enforcement of both domestic and foreign awards, the judicial assistance for taking evidence and the granting of interim measures prior to the constitution of the arbitral tribunal. 

The High Commercial Courts (Sala Superior) have jurisdiction to hear applications for annulment of awards; in the absence of a commercial court, the civil court of the place of arbitration will be competent. These courts are also competent for the recognition of foreign awards.

If a commercial judge or court is unavailable in a specific judicial circuit, jurisdiction will fall to the civil judge or court linked to the dispute (such as the arbitration site) or the enforcement location (for example, the respondent's domicile, where the respondent's assets are located, or where the respondent exercises rights).

The national legislation governing arbitration in Peru is Legislative Decree No. 1071, effective from 1 September 2008, and inspired by the 2006 UNCITRAL Model Law. It incorporates some particularities, for instance:   

• It provides for an additional ground for annulment of an arbitral award in Article 63, ie, that the dispute is decided after the deadline (i) agreed by the parties, (ii) established in the applicable arbitral rules, or (ii) established by the arbitral tribunal. 
• It offers the arbitral tribunal a broader discretion when deciding the applicable law to the merits. When parties do not agree on the applicable law, Article 57(2) allows the tribunal to determine it according to whatever they deem appropriate.
• It also provides for shareholder-dispute arbitration, testamentary and labour arbitration.
• Article 14 frames the legal standard to incorporate non-signatories parties of the arbitration agreement to the arbitration proceeding. 

Currently, there is a legislative project in debate at the Peruvian Congress which aims to (i) forbid judicial interim measures issued prior to the constitution of the arbitral tribunal where a state entity is party of the arbitration, (ii) exclude emergency arbitrations in procedures where a state entity is party of the arbitration and (iii) forbid fast-track arbitrations against state entities (Proyecto de Ley N° 7321/2023/CR). 

An arbitration agreement is enforceable in Peru if it complies with the requirements set forth in Article 13 of Decree N°1071. These requirements are the following: 

• The arbitration agreement shall be in writing, whether as a clause in a contract or as an independent agreement. Similarly to the 2006 UNCITRAL Model Law, the arbitration agreement is deemed to be in writing when:
• it is recorded in any form, whether the arbitration agreement or contract has been concluded by the performance of certain acts or by any other means;
• an electronic communication is made, and the information contained therein is accessible for subsequent reference. “Electronic communication” in its turn means any communication that the parties make by means of data messages. “Data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, such as, inter alia, electronic data interchange, electronic mail, telegram, telex or telecopy;
• it is recorded in an exchange of statements of claim and defence in which the existence of an agreement is affirmed by one party, without being denied by the other;
• a reference in a contract to a document containing an arbitration clause constitutes a written arbitration agreement provided that such reference implies that such clause forms part of the contract.
• In addition, an arbitration agreement in international arbitration is valid and the dispute is arbitrable if it meets the requirements set forth by: 
• the legal rules chosen by the parties to govern the arbitration agreement;
• the legal rules applicable to the merits of the dispute; or 
• Peruvian law.

Decree 1071 does not provide an exhaustive list of non-arbitrable matters. Nonetheless, it establishes a general rule in Article 2(1) under which any matter related to a right which the parties are lawfully free to dispose or waive can be arbitrated. Furthermore, parties can submit to arbitration matters that are authorised by law or international treaty.

This ought to be interpreted systematically with Article 63.e), according to which a local arbitral award shall be annulled if the party alleging the annulment proves that the arbitral tribunal has ruled on subject matters that, with respect to Peruvian law, are manifestly non-arbitrable.

In turn, Article 63.f) establishes as a ground for annulment for an international arbitration that, in accordance with Peruvian law, the subject matter of the dispute is not subject to arbitration. Complementarily, as per Article 13, when an arbitration is international, the dispute is arbitrable if it meets the requirements established by, inter alia, Peruvian law. 

In practice, these rules exclude criminal and family matters as arbitrable (although the civil consequences of criminal acts are subject to arbitration). In addition, the Commercial High Court has established that claims related to additional work orders in public contracts are not arbitrable (Cases No 525-2021 and 323-2021).

Pursuant to Article 13(7) of Decree 1071, in the case of international arbitration, the law applicable to the arbitration agreement may include any of the following: 

• the law agreed by the parties; 
• the law applicable to the merits; 
• Peruvian law.

Domestic courts have not developed any standard regarding any conflict of laws over the arbitration agreements. In practice, parties often do not agree on this, but tribunals tend to apply Peruvian law as the law governing the arbitration agreement.

National Courts have shown a flexible approach towards the binding effect of the arbitration agreement. Further, the Peruvian Constitutional Court (highest constitutional court in the country) has expressly recognised the binding effect of multi-tier clauses (05311-2007-PA/TC, 2009).

In annulment, recognition and enforcement of awards, courts can analyse the validity of the agreement under the applicable law. Peruvian courts generally follow a pro-arbitration approach and tend to enforce arbitration agreements.

Decree 1071 expressly recognises the rule of separability to arbitration clauses in Article 41(2). According to this rule, an arbitration agreement forming part of a contract shall be treated to be independent from the other provisions of the contract, and thus the non-existence, invalidity or ineffectiveness of a contract containing an arbitration agreement does not necessarily imply the non-existence, invalidity or ineffectiveness of the arbitration agreement. This criterion follows Article 16(1) of the UNCITRAL Model Law.

Consequently, the arbitral tribunal may decide it has jurisdiction based on a valid arbitration agreement, although the contract is deemed invalid.

This standard is followed closely by the Peruvian courts on a commercial and constitutional level.

Decree 1071 adopts a highly flexible approach, therefore allowing the parties to freely select arbitrators in the arbitration agreement. It is customary for parties to adhere to the rules of an arbitral institution, which provide both a mechanism for selecting arbitrators and a list of available arbitrators. 

Almost anyone can be appointed as arbitrator if the parties wish to do so. According to Article 20, a physical person (excluding entities or corporations) can be appointed if they can exercise their rights, do not have any legal incompatibility (ie, acting as a public servant or authority) and have not been criminally convicted.

In 2020, Decree 1071 was amended, forbidding appointments of arbitrators in arbitrations against the state if the person had previously participated in the case as counsel, expert witness, or legal expert. It also bans persons who have any type of personal, work-related, economic or financial interest in the dispute or the parties.

Furthermore, when the dispute must be resolved in law (as opposed to ex aequo et bono procedure), Article 22 of Decree 1071 provides that, prior agreement of the parties, the selected arbitrator does not need to be a lawyer. However, if there is no agreement, the arbitrator shall be a lawyer.

Article 23 of Decree 1071 contains a default procedure in case the parties’ chosen method for selecting arbitrators fails:

• If the dispute is to be decided by a sole arbitrator, the parties have 15 days to reach an agreement on the person to be appointed.
• If the dispute is to be decided by a three-member panel, each party must appoint an arbitrator within 15 days. The two appointed arbitrators will then have 15 days to appoint the third member, who will become the chair of the tribunal.
• If for any reason it is not possible to appoint one or more arbitrators, the appointment will be made, upon the request of any party, by the Chamber of Commerce of the seat of the arbitration. If there is no chamber of commerce in such place, the request must be addressed to the Chamber of Commerce of the nearest city.

In multiparty procedures, Article 23(c) provides that claimants shall jointly designate an arbitrator within 15 days after being required to do so. Defendants shall do the same (unless agreed otherwise as per the arbitration agreement or the applicable arbitral rules). The two appointed arbitrators shall then appoint the third arbitrator within the same timeframe, who would act as president of the tribunal. 

If in any of the above-mentioned procedures an arbitrator is not appointed, the parties may request the chamber of commerce of the seat of the arbitration (or the place of execution of the arbitration agreement if no seat had been agreed) to make the appointment. If there is no chamber in the seat, the nearest chamber will hear the request. In the case of international arbitrations, the appointment is performed by the Chamber of Commerce of the seat of the arbitration. Absent an agreed seat, the LCC performs the appointment.

It is important to highlight that the mechanism adopted by the LCC, which follows the international standard of the International Chamber of Commerce (ICC). Article 13 of LCC Arbitration Rules provides that the appointment will follow the parties' agreement. If there is no agreement, the Centre will give the parties sharing the claimant’s position ten days to reach an agreement on the appointment of one arbitrator. The same rule applies to the parties in the respondent’s position. Immediately thereafter, the two appointed arbitrators have ten days to appoint the third member and chair of the panel. 

If neither of the parties appoint an arbitrator, the Centre makes the appointment.

National courts do not have the power to intervene in the selection of arbitrators under any circumstances. 

Decree 1071 requires arbitrators to remain independent and impartial to the parties in the arbitration proceedings. As such, they have a disclosure duty regarding any circumstances may give rise to doubts of their independence or impartiality. 

Pursuant to Article 28(3) of Decree 1071, an arbitrator may be challenged if there are circumstances that lead to justified doubts regarding its independence or impartiality. This criterion is followed by the main arbitration centres, which have even considered that the lack of timely disclosure constitutes sufficient grounds to remove an arbitrator. 

Therefore, Decree 1071 follows the international appearance standard, according to which an arbitrator can be challenged if there are “serious doubts” of its lack of impartiality or independence.

Decree 1071 does not provide a legal standard on what is understood by independence and impartiality. However, arbitral practice and the Peruvian courts (including the Supreme Court) consider independence as the lack any relationship with the parties that might affect the freedom of the arbitrator when deciding the dispute. On the other hand, impartiality refers to the objectivity that an arbitrator may have in its decision-making, free from any external influence.

As explained in 3.2 Arbitrability, subject matters that may not be referred to arbitration are those that are not freely disposable (or waivable) by parties nor expressly authorised by the law.

Inspired by the UNCITRAL Model Law, the principle of competence-competence is expressly recognised under Article 41 (1) of Decree 1071, which determines that only the arbitral tribunal can rule on its own jurisdiction, even when a party challenges it (eg, challenge on existence or validity of the arbitration agreement).

Any objection to the tribunal’s jurisdiction shall be raised with the statement of defence, at the latest. Unless agreed otherwise, the tribunal rules on these objections as a preliminary matter or with the final award.

Peruvian Courts can address issues of jurisdiction in three circumstances:

• superficially, when a claim is filed before court in which the underlying contract contains an arbitration agreement, and the defendant moves to dismiss the claim based on the arbitration agreement;
• in an annulment proceeding; and
• in recognition of foreign arbitral awards.

Under Peruvian law, courts can review the validity of both positive and negative rulings on arbitral jurisdiction under Article 41(5) of Decree 1071.

Statistics reveal that courts tend not to intervene in such matters. A study sponsored by the LCC showed that in 2022 only seven out of 101 annulment claims regarding issues of jurisdiction filed before commercial courts in Lima were successfully annulled. These issues included validity of the arbitration agreement (ten claims); abuse of authority (68 claims) and non-arbitrable matters in international arbitration (23 claims). 

From the seven successful cases, three referred to abuse of authority and four referred to non-arbitrable matters. There were no successful claims regarding the validity of the arbitration agreement.

As the jurisdiction of an arbitral tribunal can only be challenged by annulment, the parties can exercise their right to go to court only once the award has been rendered. Therefore, in accordance with Article 41 of Decree 1071, even if a jurisdictional objection referring only to certain matters is dismissed by the arbitral tribunal, the arbitration proceedings shall continue regarding the other matters, and the jurisdictional decision may only be challenged via annulment once the award on the merits is rendered.

Furthermore, partial awards can only be challenged once the final award is issued and any interpretation, exclusion or integration of the award have been resolved, in accordance with the principle of minimum judicial intervention, recognised under Article 3(4).

Peruvian courts generally apply a deferential judicial review standard for questions of admissibility and jurisdiction.

In our experience, Peruvian courts are generally reluctant towards continuing proceedings if a party has breached an arbitration agreement and the other party has objected it. Indeed, the court will only continue with the proceeding despite the defendant's objection only if the arbitration agreement is null and void and the arbitration has not commenced yet. If the defendant's objection is filed after the arbitration has started, the court shall grant the motion to dismiss. 

Courts will also continue such proceeding if the defendant waives the right to arbitrate. 

There have not been reports of judicial anti-suit injunctions related to breach of arbitration agreement. Under Peruvian law, the principle of non-interference prevails, meaning a judge can be held liable if they interfere with an ongoing arbitral proceeding.

National law does not allow arbitral tribunal to assume jurisdiction over third parties that are not party to the arbitration agreement. 

Peru is the only jurisdiction, however, that has expressly regulated the extension of arbitral agreements to non-signatory parties. Article 14 of Decree 1071 allows the arbitral agreement to be extended to those whose consent to arbitrate, in good faith, is determined by their active and determining participation in the negotiation, execution, performance, or termination of the contract subject to the arbitration agreement. 

It also extends to those who intend to derive rights or benefits from the contract. The Article provides no limitation to whether the parties are foreign or domestic, so it has been applied to both.

Decree 1071 followed the 2006 amendments of the UNCITRAL Model Law and allows tribunals to issue interim relief.

According to Article 47, once a tribunal is constituted, it has jurisdiction to issue the interim measures it considers appropriate to ensure the effectiveness of the award. 

This relief is binding on the parties, and the tribunal can enforce the award unless public force is required or deemed convenient for enforcement. In such cases, Article 48(2) permits parties to request judicial assistance from the commercial courts if needed.

Decree 1071 does not contain an exhaustive list of reliefs but a standard of the measures that tribunals or sole arbitrators can issue. The measures must be:

• temporary;
• contained in a decision that may or may not be in the form of an award;
• issued before the constitution of the arbitral tribunal.

The relief may order one of the parties to:

• maintain or restore the status quo;
• adopt measures to avoid any present or future harm or prejudice to the arbitral process itself;
• provide a means of preserving assets out of which a subsequent award may be satisfied; and
• preserve evidence that may be relevant and material to the resolution of the dispute.

If the measures are addressed to the parties, they are generally effective since the parties are involved in the arbitral proceedings. However, if the measures are directed towards third parties to the proceedings, judicial assistance may be necessary. 

Courts play a significant role in interim relief of arbitral proceedings by issuing interim measures directly themselves or by assisting arbitral tribunals on the enforcement. 

First, courts have the power to issue interim measures only before the constitution of the arbitral tribunal. Nonetheless, this relief can be overturned, modified or maintained by decision of the arbitral tribunal once it is constituted. The measures become ineffective automatically if (i) the request for arbitration is not submitted within ten days since the measure was granted; or (ii) the arbitral tribunal is not constituted within 90 days of the measure being granted. 

Second, courts can also assist in the enforcement of interim measures granted by arbitral tribunals. Judges are prevented from interpreting the content or the scope of the interim measure issued by the arbitrators. 

Furthermore, Peruvian courts have jurisdiction to recognise foreign arbitral interim measure from foreign-seated arbitral proceedings. When recognising foreign arbitral interim measures, Decree 1071 follows the 2006 amendments of the UNCITRAL Model Law. Courts may recognise and enforce foreign interim measures in application of the same requirements as those of foreign awards. 

Regarding judicial interim measures in aid of foreign arbitrations, Peruvian courts have issued contradictory decisions. 

Emergency arbitrations are not contemplated in the Decree 1071, but they can be agreed by the parties and are recognised under arbitration rules of several arbitration centres. In any case, emergency arbitrations are binding to the parties, and courts may not intervene to modify or revoke them in any way (only the arbitral tribunal, once it had been appointed). Some judicial cases are under discussion regarding the validity of emergency decisions.

Due to an increase of fraudulent emergency arbitrations in recent years, the Peruvian government is pushing to ban the availability of these measures. As of today, while some known arbitrations centres (eg, LCC, AMCHAM) still provide emergency arbitration proceedings in their rules (albeit with some restrictions regarding arbitrations with state entities), others (eg, PUCP) have removed emergency arbitration procedures from their rules entirely.

Security for costs is not expressly recognised under Peruvian law. However, an arbitral tribunal may grant it as Article 34(3) of Decree 1071 allows a tribunal to apply principles and customs and practices in arbitration in a matter the Decree has not regulated.

The arbitration procedure is governed by Decree 1071, which recognises the parties’ freedom to agree on the arbitral rules applicable to their proceedings (including the arbitration rules of the arbitral institutions administrating the arbitration, should the parties have chosen any). 

If the parties have not agreed on the rules governing the procedure, Decree 1071 provides that the arbitral tribunal can discretionarily settle the arbitral procedure as it may deem appropriate. Pursuant to Article 34(3), this discretion is guided by the principles and costumes of arbitration.

Disputes arising from public contracts are governed by a specific set of rules outlined in the General Law on Government Contracts, which is updated annually; the latest version, Law No. 32069, was published in June 2024. Its regulations were last updated in August 2023 through Supreme Decree No. 344-2018-EF.

The autonomy of the parties is the ruling principle governing the arbitral proceeding, as long as rights such as due process and equality are respected. The arbitral tribunal also has powers to conduct the proceedings, as it may deem appropriate on a case-by-case basis. 

Civil Procedure Code is not applicable to arbitrations in Peru. 

Under Decree 1071, arbitrators possess at least the following powers: 

• to decide upon the merits of the dispute;
• to decide on their own jurisdiction, as well as dealing with any objections posed by the parties in that regard;
• to schedule hearings that they may deem necessary;
• to determine the admission, pertinence, relevance and weight of evidence;
• to appoint ex officio experts;
• to issue interim measures.

Arbitrators also have the following duties: 

• to respect the confidentiality of the proceedings;
• to act in a fair and impartial manner, conducting the arbitration equally and fairly;
• to disclose any circumstances that may give rise to doubts regarding their impartiality;
• to provide reasons for their decisions.

Peruvian law is flexible and does not require any special qualifications for legal representatives. They shall nevertheless comply with general minimum requirements (ie, have legal capacity to act and have an appointment in writing). Further, it is not even a requirement to be a qualified lawyer in Peru to represent a party, which allows foreign lawyers to appear in arbitration proceedings without any further qualifications.

Article 39 of Decree 1071 mandates that parties submit all relevant documents alongside their statements of claim and defence, or reference any documents or evidence they intend to submit or propose. This requirement is similarly reflected in the rules of major arbitral institutions. However, the tribunal retains the authority to (i) request evidence at a later stage if deemed necessary, or (ii) admit evidence submitted by the parties if the delay is justified.

A US discovery phase does not exist per se. However, the parties can agree on a document production phase, whereby one party requests the tribunal to order the other party to produce documents. The other party can object to the production of such documents on grounds such as its lack of relevance or confidentiality of the documentation, including secrecy of the information or protection by legal privilege. In practice, tribunals tend to use standards such as the ones set out in rules like the IBA Rules on the Taking of Evidence. 

While there is no established standard for the characteristics of the documents to be produced, they should generally not be under the control of or accessible to the requesting party, and must be material and relevant to the dispute.

The rules of evidence concerning witnesses are clearly outlined in the arbitral proceedings. Typically, the parties submit written witness statements and have the discretion to decide whether to cross-examine witnesses during the hearing.

Regarding expert witnesses, the rules of evidence are established at the start of the proceedings. Parties can submit experts reports from party-appointed experts, and the arbitral tribunal can also appoint experts ex officio. Additionally, parties have the right to cross-examine experts during hearings.

Article 43 of Decree 1071 establishes that the arbitral tribunal holds exclusive authority over the admissibility, relevance, presentation, and weight of evidence in arbitral proceedings, allowing it to request evidence as necessary at any time. Additionally, the tribunal may disregard evidence that has been offered but not formally submitted, depending on the case's circumstances. Consequently, the rules of evidence in arbitration significantly differ from those applicable in domestic judicial matters, aligning with an international framework.

Even when a specific topic is not addressed by the parties' agreement or lex arbitri, arbitrators can resort to international practice and arbitral principles (Article 34). In practice, this enables the tribunal to exercise procedural discretion guided by various sources, including guidelines published by the International Bar Association (IBA), relevant case law, academic doctrine, and other institutional rules.

Major arbitral institutions, such as the LCC, have established certain rules of evidence that arbitral tribunals can otherwise modify by agreement. 

Arbitrators lack the authority to compel parties to produce documents during proceedings. Nonetheless, it is a common practice, as outlined in the rules of arbitral institutions like the LCC, that if a party fails to produce required documents or evidence without justification, the Tribunal may draw appropriate inferences, including negative ones.

Arbitrators lack the authority to compel third parties to produce documents or to ensure the attendance of witnesses or experts. However, Article 45 of Decree 1071 permits the arbitral tribunal or the parties (with prior approval from the tribunal) to seek judicial assistance for evidence gathering.

Once the assistance request is submitted, the judicial authority must comply without delay, unless the request clearly violates prohibiting laws or public order. Consequently, the judicial authority cannot assess the appropriateness of the request or allow any opposition or appeal against the procedural order issued in response.

Article 51 of Decree 1071 (in accordance with the rules of the main arbitral institutions) provide that, unless agreed otherwise, any person involved in the arbitral proceedings (eg, arbitrators, tribunal’s secretary, arbitral institutions, witnesses, experts) has an obligation to maintain confidentiality of both the proceedings and the award. Parties, their representatives and counsel shall also maintain confidentiality, unless there is a legal mandate or legal provision that lifts such confidentiality.

Even when awards and other confidential documents are submitted to the courts during annulment, recognition, and enforcement procedures, they can remain shielded from the public. Nonetheless, some arbitral institutions advocate for greater transparency by publishing select awards with the parties' consent.

In arbitrations whereby one of the parties is a state entity, the proceedings and the arbitral award become publicly available upon their termination. 

The legal requirements for an arbitral award consist of formal and content-related elements. Formally, the award must be in writing and signed by the arbitrators. In terms of content, it must include the reasoning behind the decision ("motivación"), state the date and place of issuance, and address the ruling on costs.

The Peruvian Arbitration Act has the particularity of containing a ground for annulment for specifically delivering the award out of time agreed timeline (Article 63(1)(g)). Recently in 2024, four related awards where consecutively annulled as a result.

Arbitrators can award the same remedies a judge would under Peruvian law, including specific performance, rectifications, injunctions and damages (damnum emergens, lucrum cessans, moral). Punitive damages are not recognised under Peruvian law.

Parties are entitled to recover interests and legal costs, and must explicitly request interest as part of their claim and provide a justification for the rate used.

Regarding legal costs, Article 73 of Decree 1071 provides that legal costs may be recovered based on the agreement of the parties. If there is no agreement, the defeated party in the arbitration assumes the costs, regardless of the power of the arbitral tribunal to distribute costs between the parties if it considers it to be reasonable, on a case-by-case basis.

Once the award is issued, parties do not have the right to appeal. Pursuant to Article 62 of Decree 1071, the only possibility to challenge an award is by a set aside (annulment) procedure, which proceeds exclusively under the following grounds in Article 63: 

• the arbitration agreement does not exist or is invalid;
• one of the parties was not given notice duly of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise, by any reason, unable to present their case;
• the composition of the tribunal or the arbitral proceedings were not in accordance with the agreement of the parties or the applicable arbitration rules, unless such agreement or rules were contrary to a mandatory legal provision of Decree 1071;
• the award deals with a matter that was not submitted to the tribunal’s decision; 
• in domestic arbitration, the subject-matter of the arbitration is manifestly not arbitrable under the law; 
• in international arbitration, the subject matter of the arbitration is not arbitrable under the laws of Peru or the award conflicts with international public order; and
• the award was rendered after the deadline that was established by the parties, the applicable arbitral rules or the arbitral tribunal. 

The only possibility to challenge an award is by a set aside procedure, whose scope the parties cannot expand by agreement. However, when none of the parties in the arbitration has Peruvian nationality, is a permanent resident or has its core business in Peruvian territory, Article 63 (8) of Decree 1071 allows them to fully renounce to a set-aside procedure or limit the grounds for annulment that parties can apply for. 

The standard of judicial review of the merits may be deferential. The Commercial High Courts are not considered appellate bodies (second instance), which means they do not review the merits at all. They review challenges exclusively on the validity of the award, limiting the scope of the court analysis to strictly procedural matters.

For this reason, Peruvian courts make a full review of the tribunal’s jurisdiction but only from a formal perspective. Thus, they have no jurisdiction to revoke decisions, even if the decision on the merits is completely wrong.

In practice, annulment courts often apply standards developed by the constitutional practice when vacating judicial judgments. Even though this approach has been criticised, courts rarely annul an award. Statistics from 2022 indicate that the lack of motivation in arbitral awards is cited as a reason for annulment in 91% of cases (399 out of 440). However, only 60 awards were actually annulled on this basis, representing 15%.

Peru is a signatory of the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards, without reservations. Another similar convention signed by Peru is the Inter-American Convention of International Commercial Arbitration, approved in Panama on 30 January 1975. 

To enforce a foreign award in Peru, the interested party shall file a recognition request before the High Commercial Court and, once this has been granted, shall request its enforcement to the commercial judge.

Decree 1071 expressly provides, under Article 75(2)(e), that the enforcement of a foreign award is refused if the objecting party demonstrates that the award (i) is not still compulsory for the parties; (ii) was annulled; or (iii) has been suspended by a competent authority in the country in which the award had been rendered. 

Article 75(8) states that if an award is currently undergoing a set-aside procedure at its seat, the commercial court responsible for recognising the award may postpone its decision until the procedure is complete. Additionally, the court may require the party seeking annulment to provide appropriate guarantees on behalf of the requesting party.

Under Decree 1071, state entities cannot raise a defence of sovereign immunity at an enforcement stage. 

In general, Peruvian courts regularly recognise and enforce foreign awards. Therefore, grounds for refusal (including public policy considerations) are exceptionally granted.

Peruvian arbitration legislation does not include any provisions for class action or group arbitration.

In Peru, the ethical codes applicable to lawyers derive from their professional associations, specifically their respective Bars, and they are bound by a duty of professional secrecy, which is recognised at the constitutional level in Article 2(18) of the Constitution. This right has been upheld by the courts, as demonstrated in the judicial judgment of procedure No. 7811-2005-PA/TC. In contrast, while Decree 1071 outlines duties of independence and impartiality for arbitrators, it does not specify ethical rules or professional standards; however, some arbitration centres have developed their own codes of ethics.

To date, Peruvian law and the arbitral rules of major institutions do not include specific regulations for third-party funders.

Article 39 of Decree 1071 provides that, unless agreed otherwise, an arbitral tribunal cannot consolidate two or more arbitral proceedings. However, arbitral institutions do provide specific rules for consolidation under specific circumstances. For example, a common requirement is the connection between agreement and consent, which can arise from the interpretation of agreements, the conduct of the parties, or a formal agreement made after a dispute has arisen.

The binding effect of an arbitral decision over third parties as a form of co-operation is uncertain. Constitutional practice has rejected the incorporation of third parties, such as banks, as non-signatories. 

However, no standard has been developed and, in practice, interim measures requiring the co-operation of financial institutions or other parties are often granted at the discretion of the courts, while those issued by the courts themselves are binding.