Litigation 2024 Comparisons

Last Updated December 05, 2023

Contributed By Simons & De Noriega

Law and Practice


Simons & De Noriega is a highly recognised litigation and arbitration boutique that stands out for its specialisation and experience in complex judicial and arbitral matters, including constitutional and human rights issues. The firm is renowned for providing innovative solutions, a comprehensive approach, recognised commitment, and passionate advocacy. The team is strongly qualified in litigation and national and international arbitration, with notable expertise in complex cases before both national and international courts, such as the Peruvian Constitutional Court, the Inter-American Court of Human Rights, and arbitral tribunals in centres like the Lima Chamber of Commerce, American Chamber of Commerce, the International Chamber of Commerce (ICC), and the International Centro for Settlement of INVESTMENT Disputes (ICSID).

The Peruvian legal system is based on civil law, with rules that generate significant predictability in the regulation of behaviour to understand the scope of action that agents have in the market. Additionally, the Supreme Court of Justice issues plenos casatorios (full bench decisions) which are mandatory compliance interpretation rules on certain norms, in order to have greater legal certainty.

Regarding the procedural system, Peruvian courts follow the adversarial model, and in recent years, there has been a push for an oral approach in legal proceedings for dispute resolution.

The structure of the Peruvian judicial system is divided into specialties according to the type of dispute. There are courts for civil law, criminal law, labour law, administrative litigation, constitutional law, etc. Additionally, there are cases where specialised courts exist for specific issues. For example, in civil matters, there are commercial judges for disputes of a commercial nature, while in administrative litigation courts, there is a sub-specialty in tax disputes and market-related issues where judges have a better understanding of these matters.

Within these areas, judicial bodies are divided by levels, starting with magistrate courts that handle minor matters, specialised courts, superior courts, and finally, the Supreme Court of Justice. In parallel, there is the Constitutional Court as the ultimate and final instance for constitutional proceedings. Finally, with the exception of the Supreme Court and the Constitutional Court, the jurisdiction of each court will depend on the domicile of the defendant, as a general rule.

In Peru, case files are not open to the public, as only individuals involved in a legal dispute can access their contents. However, if a third party is aware of the case file number, they can access only the judicial resolutions, with the exception of criminal litigation.

The Peruvian judicial system does not impose significant barriers to access for a legal representative to participate in a proceeding on behalf of a company. A legal representative can appear with a power of attorney issued through a Public Deed before a Notary. Likewise, if the power of attorney was granted abroad, it must be translated into Spanish, and the representative must expressly accept the power received when appearing before a court.

Regarding foreign lawyers, they cannot participate in a judicial proceeding as legal defence if they do not have registration from the Bar Association of Peru. However, their participation is allowed in arbitration proceedings.

Peruvian legislation has not expressly allowed third-party litigation financing. However, as it has not been prohibited either, it is understood that litigation financing is permitted, allowing individuals to enter into private agreements on this matter. When entering into such private agreements, it is only necessary to ensure that the contract does not affect public order or mandatory Peruvian norms.

Due to the fact that Peruvian law has not expressly regulated third-party litigation financing, it will depend on the parties’ contract to enter into such agreements. Within this scope and in accordance with the Peruvian legal system, financing agreements related to available rights are valid. These may include claims seeking payment of economic and financial credits or matters related to compensation for damages. Third-party financing of litigation will also be allowed in all cases where the obtained claim has a pecuniary content.

With no express prohibition in place, both the plaintiff and the defendant can enter into agreements with third parties seeking to finance litigation and gain economic benefits based on the outcome of the proceedings. While it is evident that the plaintiff can derive economic gain through a favourable judgment, in the case of the defendant, success may come when asserting a claim against the original plaintiff through a “counterclaim”. Additionally, financing litigation for a defendant could be justified in cases where, after a lawsuit is dismissed, compensation may be sought in a new proceeding, alleging that the initial legal action against the defendant resulted from the irregular or arbitrary exercise of the right to bring an action.

In the Peruvian judicial system, there is neither a minimum nor a maximum limit on the number of external financiers for a litigation. All of this is left to the free will of the individuals involved because the law imposes no restrictions in this regard.

The primary cost that an external litigation financier must consider is related to the legal services of the attorney participating in the dispute. In addition to this, depending on the litigation, the cost of expert fees should also be taken into account in case technical reports need to be prepared.

Finally, there are other expenses during the process that the financier must consider, such as court fees and administrative costs for the completion of procedures to obtain documents and/or certificates that can serve as evidence.

In Peru, contingency fees for the provision of legal services are allowed since there is no explicit prohibition or restriction in this regard.

As there is no legal regulation governing this matter, the contingency fee agreement is left to the free will of the parties.

There is no time limit for a party to obtain third-party financing. Since there is no regulation prohibiting or setting limits on this matter, such financing can even occur in ongoing legal proceedings.

In the Peruvian legal system, it is required that if the dispute involves rights of free disposal, the plaintiff must have previously invited the potential defendant to a conciliation procedure to attempt to resolve the conflict. The conduct of this conciliation procedure is regulated by Law No 26872.

On the other hand, cases where such conciliation procedures are not required may arise, among other reasons, when the party invited to conciliate resides abroad, when the domicile of the invited party is unknown, or in situations where the parties cannot negotiate the nature of the conflict due to the claim or right being of a non-waivable nature.

The prescription periods for civil lawsuits are regulated by Article 2001 of the Civil Code. These periods are as follows.

  • Ten years for disputes arising from personal actions (obligations), real rights, and those arising from the execution of a final judgment or arbitration award. The same ten-year period also applies to lawsuits seeking the annulment of a legal act.
  • Seven years for filing a claim for damages resulting from a simulated act.
  • Three years for lawsuits seeking payment of non-employment-related service remuneration.
  • Two years for actions of annulability, revocation, and compensation for non-contractual liability, as well as those against the representatives of incapacitated individuals.

The expiry of the prescription period does not prevent the filing of a lawsuit. However, if the defendant raises the defence of prescription within the legal timeframe, the court must conclude the proceedings without addressing the merits of the dispute.

For a person to be sued in Peru, it is required that they have their domicile in the country. Likewise, Article 2058 of the Civil Code recognises the jurisdiction of Peruvian courts over individuals domiciled abroad, allowing for their summons in the following cases:

  • in disputes concerning real rights to property located in Peru;
  • in disputes concerning obligations to be fulfilled in Peru or arising from contracts concluded in the country or actions performed in Peru; and
  • when the parties (including the defendant) expressly or implicitly submit to Peruvian jurisdiction.

The complaint is the initial document presented to the judge to initiate a lawsuit. It must describe the claim, the facts, and the legal grounds. The complaint can be modified until it is notified to the defendant through the judiciary.

Additionally, the amount of the claim can be increased until the judgment if, during that time interval, new deadlines or payment instalments that constitute the subject matter of the obligation expire, provided that the plaintiff has reserved that right in the complaint.

In the event that the defendant becomes aware of the legal action initiated against them, notification is made solely by the judiciary after the filed complaint has been admitted. The period to respond to the complaint begins with this notification.

On the other hand, the Peruvian legal system has established the possibility of suing individuals domiciled abroad. To analyse the scenarios in which such a situation can occur, we refer to the response to 3.3 Jurisdictional Requirements for a Defendant.

Finally, the procedure to sue a person residing abroad is a process conducted through the competent Peruvian judge or tribunal, who will serve the complaint through a consular route for notification at the defendant’s domicile located abroad. It is necessary to attach the complaint and supporting evidence duly translated by a professional translator into the official language of the defendant’s location to ensure their right to defence.

In the event that the defendant does not respond to the complaint, the legal proceedings will continue. However, the judge will declare the defendant “in default”.

The effects of being in default imply the generation of a relative legal presumption about the truth of the facts stated in the complaint, except in the following cases established in Article 461 of the Peruvian Civil Procedure Code:

  • there is more than one defendant, and one of them has responded to the complaint;
  • the claim in the proceeding concerns a non-waivable right;
  • in cases where the claim must necessarily be proven with a document by legal mandate, and the document has not been attached to the complaint; and
  • in cases where the judge is not convinced by the alleged facts, which will be declared in a reasoned resolution.

In the Peruvian context, similar to much of the legislation in the Latin American region, there is no specific regulation on class actions. The closest concept is the protection of diffuse interests, such as those related to environmental issues, where legitimacy is recognised for filing a lawsuit by the Public Prosecutor’s Office, Regional and local governments, peasant and/or native communities in the area where the damage occurred, as well as non-profit associations that, in the judge’s opinion, may have an interest in participating in the process.

Despite the absence of specific regulation on class actions, as they are not prohibited, individuals can collectively join to assert a claim against one or more persons, provided that the plaintiffs allege to have suffered some harm or damage. According to Peruvian law, there is no limit on the number of individuals who can file a lawsuit in the same proceeding.

There is no explicit and binding rule that compels the lawyer to provide the client with an estimate of litigation costs from the outset. However, considering the client as a consumer in relation to the lawyer, it is recommended, as a duty of competence, to provide information about the expenses that may be incurred during the process in addition to the fees for legal services.

Before the evidentiary hearing and even before initiating a judicial process, precautionary measures can be filed to ensure the compliance and effectiveness of the judgment. Such precautionary measure requires meeting three requirements: Firstly, the plaintiff must demonstrate having a prima facie case for the right on which their claim is based; secondly, they must show that there is a danger that the delay in the process may hinder the enforcement of the judgment, and finally, they must demonstrate that the precautionary measure is reasonable to ensure compliance with what the judge or tribunal resolves. Finally, for the execution of the precautionary measure, the posting of a counter-bond is required to protect against damages that the precautionary measure may cause to the defendant if the claim is dismissed.

On the other hand, before the commencement of a judicial process, the plaintiff can request advanced evidence. To do so, Article 284 of the Civil Procedure Code requires expressing the general claim that will be pursued and the reason justifying this exceptional request. These circumstances may arise when the passage of time will prevent certain evidence from being obtained after the litigation has started, such as the testimony of a seriously ill witness or, in the case of expert opinions, if there is a risk that the circumstances or the condition of persons, places, goods, or documents on which a scientific analysis is to be conducted may be altered.

In civil and commercial litigation, it is not possible to request an early judgment on some or all of the disputed issues. The closest procedural concept, although distinct, is the “Early Adjudication of the Process,” which empowers the judge to issue a judgment without an evidentiary hearing when there is no evidence to be presented, such as the testimony of a party or witnesses. However, this concept is not associated with “early judgment” because in civil or commercial litigation in Peru, a judgment is issued after the completion of the entire regular trial process at the first instance.

On the other hand, there are other situations where civil or commercial litigation may conclude early without a judgment on the merits. According to Article 321 of the Civil Procedure Code, this can occur in the following cases:

  • when the claim is removed from the judicial domain;
  • when, by legal provision, the dispute is no longer justiciable;
  • when the process is declared abandoned due to absolute inactivity by both parties for four months or more, provided that the continuation of the litigation was conditioned on the performance of an act by them and not by the judge;
  • when the resolution granting any exception or preliminary defence is deemed consented to without the plaintiff having rectified within the legal timeframe. Additionally, the process also concludes early when the expiration or claim is declared;
  • when the plaintiff withdraws from the process or abandons the claim; or
  • when the consolidation of the rights of the litigants occurs.

Finally, in cases where an early judgment can be issued, it is in constitutional processes, after the complaint has been answered, when the judge or tribunal deems the case to be manifestly well-founded or inadmissible, and there is no need to proceed to the hearing stage.

One of the most common dispositive motions that can be filed in litigation in Peru before the “trial” stage, equivalent to the “evidentiary hearing” in the Peruvian system, relates to the filing of exceptions and preliminary defences. In this context, the aim is to conclude a process by alleging a defect in some procedural requirement or the existence of an impediment to issuing a judgment.

If the defect is insurmountable, the process may conclusively end without a judgment being issued.

Likewise, in the event that the exception or preliminary defence that has been raised reveals a correctable defect, and it is not rectified within the provided timeframe, the judge may definitively conclude the process without addressing the merits.

All these defence mechanisms have specific regulation from Article 446 to 457 of the Civil Procedure Code, providing predictability as to when these situations may arise.

In the Peruvian legal system, individuals who have not initially been named as plaintiffs or defendants can indeed join a judicial process, considering that the outcome of the litigation may affect them. There are various mechanisms that allow the intervention of third parties whose legal situation is related to the litigation. Among the voluntary forms of third-party intervention are the co-adjuvant, consortia, exclusive ownership, principal exclusive, and preferential right-exclusive third-party interventions.

In situations where a third party holds a right that excludes the parties from the process, they have the right to request their participation and file an autonomous claim to recognise their legal status. This scenario is known as principal exclusive intervention.

On the other hand, third parties can be compelled to participate in the litigation through various mechanisms, such as considering a person as a necessary co-plaintiff, civil denunciation, securing a future claim, possessory summons, and summons for fraud or collusion.

Considering a person as a necessary co-plaintiff occurs when a judge integrates into the process a person whose litigation outcome may affect them.

Civil denunciation occurs when the defendant believes that someone other than or in addition to them has an obligation or responsibility regarding the disputed right.

Likewise, securing a future claim occurs when the party who believes they have the right to demand compensation from a third party for the damage that the litigation outcome may cause can request their summoning so that the claim against that third party is resolved in the same process.

On the other hand, possessory summons occurs when someone initially demands a person who possesses real estate on behalf of another person. In these cases, the initially sued party must inform who the actual possessor of the real estate is so that they can be notified with the complaint.

Finally, summons for fraud or collusion occurs if, at any point in the process, the judge identifies fraudulent or collusive conduct by the parties. In this case, the judge will order the citation of individuals who may be harmed so that they can assert their rights.

In litigation in Peru, the defendant cannot request the plaintiff to pay a monetary amount as security for costs and/or expenses. For further details, please refer to the response to 11.1 Responsibility for Paying the Costs of Litigation.

The determination of the payment of costs and expenses will always occur at the time of the judgment, where the judge or tribunal will assess whether the defeated party is obliged to pay or is exempt from such obligation due to having had legitimate reasons for litigation. The latter will be done through a properly reasoned resolution.

As for the payment of such costs and expenses in requests or provisional motions, there is no specific regulation. However, in the event that the defeated party has secured its claim with a precautionary measure during the process, the imposition of costs and expenses against them is mandatory. Additionally, they may be subject to a fine not exceeding USD1,300.00, as well as, upon request, the payment of compensation for the damages caused.

Within the framework in Peru associated with requests or provisional motions, both precautionary measures and advance evidence respond to urgent matters that are processed with such character by the judge or tribunal.

In the case of precautionary measures, the legislation does not provide a specific time frame for the judge to evaluate such a request. However, a practical estimate is that the resolution should be issued within two to three weeks.

On the other hand, requests for advance evidence for the urgent practice or production of evidence are processed as non-contentious proceedings. According to Article 754 of the Civil Procedural Code, once such a request is admitted, the judge will convene a hearing within 15 days to resolve the request. Exceptionally, the judge may reserve the decision for a period not exceeding three days after the conclusion of the hearing.

There is no procedure or regulation equivalent to discovery. For specific information on the regulation of admission and processing of evidence, please refer to 5.4 Alternatives to Discovery Mechanisms.

Since discovery is not regulated in Peru, it is not possible to obtain evidence through such a procedure. However, during the course of the legal process, third parties can participate in the evidentiary stage before the judge, either as witnesses, by preparing expert reports, by presenting documents, or by providing information in their possession that may be useful for resolving the case.

For such a situation to occur, the interested party must submit the relevant evidentiary means (testimony, presentation of a document in the possession of a third party, expert testimony, among others) during the appropriate stage.

Please refer to 5.1 Discovery and Civil Cases and 5.2 Discovery and Third Parties regarding the absence of regulation for discovery in the Peruvian legal system. Additionally, it is pertinent to mention that there is no specific obligation for the plaintiff or defendant to present certain evidence, as it is entirely at the discretion of the parties.

Both the plaintiff and the defendant present their evidence supporting their positions in the initial stages of the process (complaint and response to the complaint).

This rule has an exception if the evidence is based on a new fact or if it concerns facts mentioned by the other party when responding to the complaint. Likewise, if the defendant files a counterclaim, the plaintiff can submit their own evidence when defending against the counterclaim filed against them.

For the evidence to be admitted, it must be relevant, useful, pertinent, and lawful concerning the fact being attempted to be proven. Also, it should be avoided that the evidence affects morality, national security, and public order. Under these circumstances, the judge may reject evidence in the aforementioned cases.

In Peru, the Political Constitution guarantees and protects legal privilege in favour of every individual. By including this provision for lawyers, all the knowledge they have acquired about the case through private interactions with their clients is guaranteed and protected. Due to professional ethics, legal privilege prevents lawyers from disclosing, without their client’s knowledge, everything the client has entrusted to them.

On the other hand, legal privilege does not entail confidentiality for communications between the lawyer and the client when it involves the planning of illegal activities. In a criminal proceeding, the judge can request the lifting of the privilege of communications if they believe that individuals have used technological means to co-ordinate crimes, regardless of whether these communications are between a lawyer and their client or vice versa. However, the possibility of lifting the privilege of communications only occurs in cases of serious organised crime and in accordance with the principle of proportionality.

In general, Article 220 of the Civil Procedure Code states that no one can be compelled to testify about facts they learned under legal or confessional privilege, including facts that may be documented. Likewise, documents containing classified intelligence information cannot be disclosed to third parties in accordance with Article 4 of Legislative Decree No 1141, as they contain state secrets that could jeopardise national security.

In the Peruvian legal system, there are three requirements for issuing a precautionary measure: (i) the plaintiff must have a likelihood of success in the right they are litigating; (ii) they must demonstrate the existence of a danger that the delay in the process could hinder the execution of the judgment, and (iii) the precautionary measure must be appropriate and reasonable according to the claim of the lawsuit.

The types of precautionary measures can be as follows.

  • Attachment precautionary measure – with this measure, a property or right of the obligated party can be affected, even if it is in the possession of a third party.
  • Sequestration precautionary measure – judicial sequestration of a property with the dispossession of its possessor can be requested when the litigation involves the right of ownership or possession of a specific property.
  • Temporary measure on the merits – exceptionally, the measure may consist of the early execution of what will be decided in the judgment, provided that it can be reversed and does not affect public interest.
  • Innovative measure – this measure is issued to restore a state of fact or law whose alteration is or will be the basis of the claim.
  • Non-innovation measure – this measure aims to preserve a state of fact or law so that it is not altered until a judgment is issued.

In the case of the precautionary measure, the legislation does not establish a specific timeframe within which the judge must evaluate such a request. However, an estimated timeframe in practice allows for consideration that the resolution should be issued within two to three weeks.

In the Peruvian legal system, it is possible to obtain and issue precautionary measures without prior notice to the other party. According to Article 637 of the Civil Procedural Code, the precautionary request is granted or denied without notice to the opposing party.

The party requesting a precautionary measure can be held responsible for damages suffered due to its execution if it is subsequently annulled. In such cases, the affected party has the right to request the enforcement of the counter-security, which serves as the guarantee provided by the party requesting the precautionary measure to cover any damages of this nature.

Peruvian legislation allows for precautionary measures to be issued against the assets or properties of the defendant located outside of Peru. In this regard, Article 2063 of the Civil Code empowers Peruvian courts to issue provisional protective measures for natural persons within Peru, even against individuals domiciled abroad.

Exceptionally, a precautionary measure may affect the property of a third party when its connection or interest with the main claim is proven, and provided that the third party is cited with the lawsuit, in accordance with the provisions of Article 623 of the Civil Procedure Code. Additionally, precautionary measures can be imposed on assets held by a third party, as long as the owner of the property or right is the defendant.

In Peru, there are no specified consequences if the defendant does not comply with a precautionary measure, as compliance and enforcement are the responsibility of the judicial assistance organs.

However, if the defendant carries out actions that constitute contempt of a precautionary measure, such as one that prohibits altering the factual situation, they may be fined. Additionally, if the behaviour qualifies as a crime, a copy of the proceedings can be sent to the Public Prosecutor’s Office to assess the possibility of a criminal complaint.

After the submission of the complaint and response to the complaint, the judge will analyse the validity of the procedural relationship, issuing a resolution declaring the process as saneado (sanitised or cleared). Following this, the judge will establish, with the parties’ input, the points in dispute and admit the means of evidence. If there are evidentiary measures to be taken in a hearing (such as the statement of a party or a witness), the judge will set a date for the evidentiary hearing. Otherwise, the judge may order an Early Judgment of the Process and subsequently issue the judgment.

In recent years, there has been a growing trend towards an oral approach in civil litigation, implementing a preliminary hearing where the parties will present what will be the subject of evidence in the process. The purpose of this hearing is to familiarise the judge with the case for the future evidentiary hearing. In addition to the preliminary hearing and the evidentiary hearing, lawyers have the opportunity to request an oral report to present the facts supporting their clients’ positions.

In civil proceedings governed by the oral approach, the “preliminary hearing” has been implemented. This is a proceeding that takes place before the evidentiary hearing. The purpose of this hearing is for the parties to present the relevant facts that the litigation will address and what will be the subject of evidence in the main hearing.

In Peru there are no jury trials.

In the Peruvian legal system, for evidence to be admitted, it must comply with the following four principles.

  • Relevance – the evidence relates to the disputed facts of the litigation.
  • Admissibility – the evidence is allowed by the legislator to prove a fact.
  • Utility – the fact to be proven must provide a benefit in relation to clarifying the conflict.
  • Legality – the evidence must not have been obtained by violating a fundamental right or contravening any legal norm.

Additionally, Article 190 of the Civil Procedure Code establishes cases where certain evidence is inadmissible, such as: (i) when it concerns undisputed, impossible, notorious, or publicly evident facts; (ii) facts asserted by one party and admitted by the other; (iii) facts that the law presumes without admitting evidence to the contrary, and (iv) Peruvian national law.

Although there is no specific regulation, in Peru, the testimony of experts is allowed in court since this type of evidence is not prohibited. According to Article 193 of the Civil Procedure Code, the expert witness can be considered as technical or scientific assistance aimed at helping prove the disputed facts.

On the other hand, the law guarantees and allows parties to present the expert reports they deem necessary. Finally, it should be noted that a judge can request expert testimony and include such evidence ex officio when deemed relevant to the resolution of the litigation.

In principle, hearings in Peru are public. However, in cases where minors may be involved or where the privacy or intimacy of individuals participating in a judicial process could be affected, hearings will be held in private. In this regard, the minutes of the hearing will also be treated as confidential, protecting the name of the person involved and other sensitive data or information.

The judge plays a role in the hearing as the process director, ensuring that the parties and their attorneys can exercise their rights. During the hearing, the judge may exceptionally order the inclusion of evidence ex officio if they believe it contributes to the appropriate resolution of the dispute. Also, the circumstances under which a judgment can be issued on the same date as the hearing depend on the procedural path of the litigation. For instance, if the case is being processed under the summary procedure, Article 555 of the Civil Procedural Code states that at the end of the hearing, the judge must communicate the decision’s sense to the parties.

Furthermore, the judge may reserve their decision, considering the complexity of the matter to allow for better reflection on the controversy.

In Peru, civil trials can take approximately three to four years to reach a final and definitive decision. On the other hand, disputes specifically of a commercial or business nature tend to have a shorter duration, typically ranging from two to three years.

In the Peruvian legal system, parties can enter into a judicial settlement at any stage of the process to resolve the conflict, provided that the agreement involves reciprocal concessions, pertains to patrimonial rights, and does not violate public order or good customs, as stipulated in Article 337 of the Code of Civil Procedure.

For this purpose, the settlement must have signatures legalised before the Judicial Secretary or Notary, and the judge will approve it after verifying the aforementioned requirements. It is important to note that the approved settlement, which concludes the process, has the force of res judicata.

In the Peruvian legal system, parties can agree to confidentiality in a settlement or any agreement, even establishing penalties for its disclosure to third parties.

In the event that one of the parties violates an extrajudicial settlement, its fulfilment can be requested through the Single Execution Process. This process is characterised by significant expediency, where only the fulfillment of the agreement is ordered, without delving into substantive issues. The structure of this process allows for an immediate resolution, and the settlement being requested for execution holds the same validity as a final judgment.

The settlement agreement can be annulled through a judicial process of nullity of legal act, where it must be proven that a defect has occurred in the structure of the contract, which can relate to the will, an unlawful object or purpose, when the agreement suffers from absolute simulation, among other factors. These scenarios are outlined in Article 219 of the Civil Code.

Likewise, the agreement can be challenged through a process of annulment of legal act when the person had restricted legal capacity to enter into it, it was signed under error, fraud, violence, intimidation, or under simulation, and when the act harms the right of a third party. These requirements are set forth in Article 221 of the Civil Code.

In the event that the plaintiff has been successful in a compensation lawsuit, the judge may award them the full or partial amount requested for compensation under the following damages:

  • actual damages – refers to the direct expenses incurred by the plaintiff as a consequence of the harm caused;
  • lost profits – calculated based on the profit that the plaintiff was unable to obtain as a result of the harm; or
  • moral damages: The estimation of internal harm suffered by an individual due to the harmful event. In the case of a business, this type of damage can be seen as harm to its reputation.

Additionally, the judge may order the defendant to pay the costs and expenses to reimburse the plaintiff for all the expenses incurred during the litigation process.

In the Peruvian legal system, punitive damages are not provided for, and there are no legal limits to quantify the amount of damages or compensations. However, parties can enter into agreements before a conflict arises that establish penalties for certain behaviours within a contractual relationship. The payment of such penalties constitutes compensation for the damages caused, as stipulated in the agreement.

Once the payment of compensation for damages and losses is ordered in favour of the plaintiff, the payment of interest is also required. Interest is calculated from the date on which the obligated party should have compensated for the damages and losses (ie, the moment when the damage occurred) and continues to accrue until the entire payment obligation is effectively settled. The parties may agree on the interest rate, or if no agreement exists, it is set by the legal interest rate determined by the Central Reserve Bank of Peru.

In the Peruvian justice system, there are suitable mechanisms to enforce a judgment if the obligated party does not comply voluntarily.

The process begins with the judge demanding compliance from the defendant, granting a reasonable period to fulfill the judgment under the threat of forced execution.

Forced execution can involve the retention of assets held by the defendant in the financial system or even the seizure of their properties for auction at a reduced price. The proceeds from the sale are then used to cover the amount of the obligation that was supposed to be paid.

The execution of a foreign judgment in Peru is subject to an expedited procedure, similar to the execution of a domestic ruling. Its enforcement depends on the existence of a treaty that Peru has signed with the state from which the decision originates.

If there is no treaty, the foreign judgment will have the same force as Peruvian decisions in the country of origin. It is presumed that the foreign country recognises the binding force of judgments from Peruvian courts.

Additionally, for the foreign judgment to be recognised, it must not address matters under exclusive Peruvian jurisdiction. It must be verified that the defendant’s due process rights were respected, that the foreign court had jurisdiction according to rules of Private International Law, and that the decision to be recognised has the status of res judicata.

The foreign judgment to be executed must be presented in its entirety and officially translated into Spanish.

In the Peruvian legal system, parties in a civil or commercial litigation have two instances. Within the hierarchical structure of the judicial  ranch, there are the following organs: (i) justice of the peace courts; (ii) specialised courts, superior courts, and the Supreme Court of Justice.

If the process begins in a justice of the peace court, the litigation can only reach the specialised court as a result of the appeal.

If the process begins in a specialised court, the litigation can end up before the Supreme Court of Justice after the filing of the appeal and cassation.

The general requirement to file an appeal is that the judgment has caused harm to the appellant. Additionally, the appellant must provide grounds for the legal or procedural error in the judgment.

On the other hand, the appellant must specify in their means of appeal whether they are seeking only the annulment of the judgment so that the first-instance judge issues a new ruling or if they request that the second-instance body directly issues a definitive judgment on the merits of the litigation.

Depending on the procedural route of a litigation, the deadline for appealing a judgment can be three days (summary process), five days (abbreviated process), or ten days (ordinary process).

For the calculation of the deadline, only business days are considered, and the period begins to run from the day after the decision is physically notified.

Other decisions, aside from the judgment, can also be appealed within a three-day period from the digital or physical notification. Only in cases where the resolution being appealed was issued during a hearing, except for a judgment, must the appeal be filed at the same time.

The judicial body reviewing an appeal can only analyse and rule on what has been argued by the appellant. It cannot examine or render a decision on issues that are not part of the appeal. Also, the scope of the decision is strictly limited to the grounds of the challenge stated in the appeal.

In the Peruvian legal system, a judge or tribunal cannot impose conditions for granting an appeal, as the right to a double instance in the process is guaranteed by the Constitution. However, this does not exempt the appellant from meeting the admissibility and procedural requirements, and their challenge may be rejected based on the non-compliance with a legal norm, such as the failure to submit the payment of the judicial fee, which has not been rectified within the period granted by the judge.

In litigation before the Peruvian judicial system, the appellate court can confirm, modify, or annul the appealed decision. Additionally, in exceptional cases, it may declare the nullity of acts preceding the judgment (including the entire process) if it identifies a serious defect of nullity.

Once the legal process is concluded, and if the judge condemns the losing party to pay costs and expenses, the prevailing party has the right to request payment for all the expenses incurred during the litigation.

According to Article 412 of the Civil Procedure Code, these expenses are divided into costs and fees.

Costs include expenses related to judicial fees, fees for the services of judicial auxiliaries, and other incurred expenses.

Fees (or attorney’s fees) encompass the fees of the lawyers, plus an additional 5% allocated to the Bar Association of the judicial district where the litigation took place.

The determination of costs and fees is the responsibility of the judge, and both the prevailing and losing parties have the opportunity to participate in the decision. The amount ordered to be paid can be subject to appeal.

The judge or tribunal must take into consideration the expenses incurred by the prevailing party during the course of the litigation. These expenses should be supported by valid payment receipts or invoices that verify the actual costs. Additionally, in the case of legal fees, evidence of payment of the corresponding taxes must be provided.

The obligation to pay costs and fees arises from the moment the decision ordering their payment becomes final. From that moment until the date when the obligation is fulfilled, legal interest may accrue at a rate determined by the Central Reserve Bank of Peru.

In Peru, the most popular ADR methods are arbitration and conciliation.

Peru is an attractive location for arbitration, given its advanced legislation in the region. Additionally, conciliation has become a necessary method that parties must pursue before initiating a judicial process when the claim relates to available rights.

Furthermore, other mechanisms such as mediation and the Dispute Resolution Board aim to prevent or resolve conflicts immediately during the execution period of a contract or project, ensuring that investments are not adversely affected.

The Peruvian legal system has been promoting the use of alternative dispute resolution methods to address conflicts as an alternative to the judicial system.

Regarding conciliation, Law No 26872 establishes the cases in which a conflict can be resolved through this method. The significance lies in Article 6 of the above-mentioned law, which states that a lawsuit will be declared inadmissible if the plaintiff fails to prove that they attempted to resolve the conflict through prior conciliation.

While there are areas for improvement, in recent years, methods such as the Dispute Resolution Board have emerged, and there has been increased promotion of arbitration. Arbitration centres for consumer or health-related conflicts have been established, alleviating the need for parties to resort to the judicial system.

Legislative Decree No 1071 regulates national and international arbitration, making it one of the most important norms in the region due to the autonomy it grants to this method of conflict resolution. Both institutional and ad hoc arbitration are allowed.

Furthermore, the award issued in arbitration holds the same value as a final judgment. Therefore, it can be promptly executed through a specific process for enforcing arbitration awards, where the sole purpose is to seek compliance with the arbitral decision, not its correction.

Rights that are not subject to the parties’ free disposal, such as constitutional guarantees or non-waivable labour rights, cannot be submitted to arbitration. The determination of whether a right is not within “free disposal” can be assessed by considering whether there is a public interest involved.

An arbitral award can be challenged only in the cases specified in Article 63 of Legislative Decree No 1071.

  • When the arbitration agreement is non-existent, null, voidable, invalid or ineffective.
  • If one of the parties has not been duly notified of the appointment of an arbitrator or of the arbitral proceedings, or if, for any reason, they have been unable to assert their rights.
  • If the composition of the arbitral tribunal or the proceedings did not comply with the agreement of the parties or the rules, unless such rules are contrary to the provisions of a mandatory law on arbitration.
  • When the arbitral tribunal has ruled on matters not submitted to its decision.
  • In the event that the arbitral tribunal has ruled on matters that are not subject to national or international arbitration or, in the case of international arbitration, if the award is contrary to international public policy.
  • In the case that the award has been issued beyond the deadline agreed upon by the parties.

The procedure to enforce a domestic arbitral award involves a swift process through an executive procedure. Once the judge qualifies the request, they will notify the defendant to provide evidence of compliance with the obligation within a period of five business days. In this request, neither the judge nor the obligated party can assess the correctness of the award’s decision, as it holds the same validity as a final judgment.

Regarding the enforcement of foreign arbitral awards, their recognition is governed by the New York Convention of 1958. This recognition and subsequent enforcement fall under the jurisdiction of a Commercial Chamber or Civil Chamber of the Judiciary. The process for recognition and enforcement of a foreign arbitral award follows the same procedure as that for a domestic arbitral award.

Currently, there are pending proposals awaiting approval that will impact dispute resolution. The most significant proposal is the reform of the Civil Procedure Code, aiming to implement changes that will expedite the resolution of civil and commercial litigation, as well as reduce the procedural burden on the Supreme Court of Justice so that it can issue a greater number of binding rulings. This will result in the first and second-instance bodies having greater predictability in their decision-making.

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Simons & De Noriega is a highly recognised litigation and arbitration boutique that stands out for its specialisation and experience in complex judicial and arbitral matters, including constitutional and human rights issues. The firm is renowned for providing innovative solutions, a comprehensive approach, recognised commitment, and passionate advocacy. The team is strongly qualified in litigation and national and international arbitration, with notable expertise in complex cases before both national and international courts, such as the Peruvian Constitutional Court, the Inter-American Court of Human Rights, and arbitral tribunals in centres like the Lima Chamber of Commerce, American Chamber of Commerce, the International Chamber of Commerce (ICC), and the International Centro for Settlement of INVESTMENT Disputes (ICSID).