Litigation 2019 Second Edition

Last Updated December 05, 2019

Peru

Law and Practice

Authors



Amprimo, Flury, Barboza & Rodríguez Abogados is a mid-sized law firm, with offices in Lima. It is made up of lawyers praised as referents in litigation affairs. The firm's lawyers are in high demand both as litigators and arbitrators, having participated in various large-scale arbitrations, as well as represented several of the country’s most important companies in critical leading cases. Furthermore, the firm's lawyers have held positions of significant responsibility and specialisation in the public administration, especially in matters related to human rights and arbitration, as well as constitutional and administrative law. Some highlights of the firm’s most recent cases are: the successful legal representation of two concessionaries of Lima’s Massive Transportation Service (Metropolitano) in an arbitration process against the municipality of Lima; and the legal representation of the main Peruvian entrepreneurial associations in a constitutional process held against the application of Law 29729, which established an obligation to non-publicly traded companies to publish their financial statements.

The Peruvian legal system is based on civil law, since it has been built on the basis of systematised and codified laws. Despite this, in the last decades some principles of different systems – mainly common law – have been assimilated and extrapolated to certain specialised areas of Peruvian law (such as family, commercial, intellectual property, labour and criminal law).

Thus, labour and criminal processes are, currently, regulated by procedural laws and regulations that establish orality in the trial, while the written system is being maintained in the other phases.

Although the Constitution recognises the independence of each judge to rule, recently it has been seeking to standardise jurisprudential criteria through the issuance of decisions contained in documents called "jurisdictional plenary", which serve as a source of law for judges.

The Peruvian judicial system is led by a Supreme Court and is composed of 29 superior courts, distributed throughout the country, that operate by subject matter, and which decide most of the processes. However, there is an exceptional appeal that allows the dispute to be brought to the level of the Supreme Court of the Republic – this is comprised of six specialised rooms in constitutional, criminal and civil matters.

The processes of constitutional law and human rights can be ultimately decided by the Constitutional Court. This judgment concludes the local stage and, if applicable, enables supervision before international jurisdictional instances in human rights.

Judicial processes are public, except in family or criminal affairs during the investigation phase. In most processes, the parties can follow up the status of the process through consultation of the judiciary's website.

The trial hearings are public, allowing free public and press assistance without restrictions – the most important cases are even transmitted live by diverse mass media and by the television channel of the judicial power.

The defence in any type of process is only carried out by a lawyer who must necessarily have a valid registration before a professional bar association (Article 132 Code of Civil Procedure). A foreign lawyer cannot represent or defend cases before the Peruvian judicial system.

In the first document that is filed before the judge, the lawyer or law firm that assumes the defence has to be appointed. This designation may be changed at any time. The designated lawyer has general representation, if authorised by the client (articles 74 and 80 Code of Civil Procedure).

In certain family processes (Article 424.11 Code of Civil of Procedure) and constitutional processes (habeas corpus or habeas data), the advice of a lawyer is not required (articles 26 and 65 Constitutional Code).

There is no restriction in this matter. The parties are free to agree on the conditions under which the litigation funding works, provided that it does not violate the Peruvian public policy.

All processes can be funded by third parties.

Both the plaintiff and the defendant, who is the subject of the claim, can be funded.

It is subject to the free decision of the parties to agree to this financing.

Types of costs can include attorneys' fees, experts' fees and the legal expenses that arise from the litigation.

Any contingency and/or success fee may also be considered within the financing of a process.

There is no restriction regarding time.

The Peruvian Code of Civil Procedure establishes that the conciliation of interests can take place before there is a second instance judgment (Article 323) and can be carried out with the judge or directly by the parties. It is not possible to conciliate facts that constitute crimes.

Law 26872 establishes the request for conciliation, as a mandatory step, before filing disputes of an economic nature or that deal with rights available by the parties and for family disputes that address food issues, visitation regimes, tenure of children, liquidation of a partnership between spouses, among others. In these cases, the extra-judicial conciliation hearing is held in a private conciliation centre, which is registered and regulated by the Ministry of Justice.

The conciliation request is mandatory, but the assistance of the invited part is not mandatory. The absence of the latter does not generate any legal presumption. When a lawsuit is filed, the judge verifies if the request for conciliation was fulfilled, as it is a requirement of the judicial process.

It must be noted that the prior conciliation procedure is not mandatory in the case of arbitration, unless the parties have agreed otherwise.

The statute of limitations for civil claims are determined by the nature of the obligation and begin as from the day the right is enforceable. They are only interrupted when: (i) the requirement of judicial compliance is notified; (ii) the debt is required by the creditor; (iii) the obligation is recognised; or (iv) compensation is judicially opposed.

The legal terms of the statute of limitations, established in the Civil Code (Article 2001), are:

  • two years for claims regarding the annulment, revocation and compensation for non-contractual liability;
  • three years for payments regarding professional fees;
  • seven years for damages caused by a simulated act;
  • ten years for personal claims, property matters, rights arising from a sentence and the annulment of an administrative act.

Also, there are several cases in which the term of the statute of limitations can be suspended.

The rules that regulate the process are common for both plaintiffs and defendants and are based on the type of process: civil, labour, administrative, and constitutional.

The initial document is the lawsuit itself and it must contain the following elements:

  • identification of the judge before whom it is being filed;
  • the identification of the claimant, indicating personal data and personal address;
  • the designation of a domicile for the process notifications that can be real or electronic (this depends on the type of process), also specifying whether a person's lawyer will be their representative;
  • the name and address of the defendant, whether a natural or legal person, since the location will be made to this place – this may be local or abroad (in which case a special notification order is processed);
  • the legal petition and, if applicable, the economic amount claimed;
  • the legal arguments that support the suit – laws, jurisprudence or doctrine;
  • the clear presentation of the facts that support the petition; and,
  • the evidence used to prove the facts invoked.

If the claim is governed by the rules of the written process, the following must be attached: copies of the identity documents and powers of the representatives or lawyers (if acting on request), and copies of the conciliation request.

Once the lawsuit is filed, the judge proceeds to its qualification and analysis, being subject to the following possible outcomes: (i) an “initial rejection” declaration which proceeds when it is immediately considered that there is no basis for the procedural process; or (ii) inadmissibility, indicating which are the specific claims that do not meet the legal requirements to initiate a judicial process and confers a period to regularise.

In Peru, the justice service is free and notification to the parties of the lawsuit and other resolutions issued in the process are the responsibility of the court. For the first notification or summons to the process, the following rules apply:

  • if the domicile is within the territorial jurisdiction of the court, it will send it directly;
  • if the domicile is located in the country, but in a different jurisdiction, a judge from that area is used to proceed with the notification;
  • if the registered address is one abroad, the diplomatic service is used so that the Consul proceeds to make the notification; and,
  • if the domicile is unknown, the judicial decision to initiate the process shall be published in the official newspaper.

The defendant is obliged to indicate a real procedural address in the area of the court or an electronic address, which will be used for notification purposes. In matters that allow orality, only judicial decisions are communicated to the electronic address indicated.

If the defendant has been validly notified to the address in which the claim is filed, and does not respond within the timeframe legally granted, the process continues and those items of the suit that are duly supported are deemed accepted – that is, the procedural breach is declared (Article 458 Code of Civil Procedure). Under this scenario, the final decision will be notified by the newspaper.

However, the process rules allow that the defendant may appear in any phase of the process, asserting their rights as from that moment; should the suit be filed against various defendants, and only one answers then the acts of defence are valid only for this sole person, unless the facts and the applicable law allow otherwise (Article 462 Code of Civil Procedure).

In Peru, the defence of diffuse interests (those whose title does not fall on a determined person or group) proceed only for defence of certain environmental rights, specifically the right for a balanced and adequate environment for the development of life (Section I of Article 23 Code of Constitutional Procedure). Non-profit organisations or legitimate entities such as indigenous or peasant communities may file protection claims, as established by the general environmental law (Article 82 Code of Civil Procedure).

On the other hand, the defence of collective interests is not expressly regulated in Peruvian legislation, except for claims regarding collective interests derived from consumer protection regulations that can only be initiated by the Peruvian Competition and Antitrust Authority (INDECOPI), or a non-profit association, aimed to claim the restitution of rights or compensation for the damages caused (Article 131 Consumer Protection Code).

Although the justice service is free, throughout the process the parties involved have to pay administrative fees for certain procedural acts; these are based upon the amount claimed, and are regulated by the Executive Council of the Judiciary on an annual basis.

Professional fees are freely agreed by each party with its lawyers, whether this is a fixed amount, a success fee, or a mixture of both criteria.

In accordance with Peruvian Law (Article 636 Code of Civil Procedures), the plaintiff may request that precautionary measures (ie, liens, seizure of property, etc) be issued before the main judicial process is initiated, in order to ensure compliance with a future favourable judgment, under the condition that the party requesting the measure submits its claim within ten days after the execution of said measure. The judge who issues this precautionary measure will be the same who will be responsible for the direction of the main proceedings.

The judge may order the early trial of the process (Article 473 Code of Civil Procedures) and issue a judgment without admitting additional procedure, but the oral hearing of the parties’ attorneys, in the following cases: (i) when it is noticed that the controversy is of law only; (ii) when, even if there is a dispute over facts, there is no need to present any evidence; or, (iii) when the resolution that has declared the beginning of process, in cases in which the defendant did not respond to the suit, has been consented. This early trial is not a right of the parties but an exclusive prerogative of the judge, although the parties, by evidencing that some of the above assumptions are met, may request it.

Pursuant to Peruvian law, there are no dispositive motions that must be followed before the trial, except for the obligation to submit a request for conciliation before a specialised centre in the matter. If an agreement was not reached in said procedure, only then the judicial process would be enabled to resolve the dispute.

Furthermore, the existence of a non-judicial transaction, or prior conciliatory agreement, qualify as events that would determine the inadmissibility of the suit, in regard to those claims formerly regulated in such agreements.

The parties not initially considered in a lawsuit are entitled to request their incorporation into the process, both as plaintiffs or defendants, even during the course of the second instance. Thus, according to Article 98 of the Code of Civil Procedures, whoever considers themselves to be the holder of a substantial legal relationship to which the effects of a sentence must be extended, and that for such reason are entitled to sue or be sued in a judicial process, may intervene as a joint-plaintiff or joint-defendant, with the same powers of those.

Moreover, the omission of a necessary defendant in a judicial process (called passive necessary part) determines the existence of an annulment defect in said process. Even, in the case of civil proceedings, regarding available rights, the plaintiff has the duty to invite to an extrajudicial conciliation, prior to the filing of the claim, said necessary parties. In that sense, the necessary passive party (defendant), which has been omitted in a lawsuit may request the judge of the process to be included as a party and demand that the claim be notified in order to answer it and exercise its right of defence.

Unlike the omitted defendants, in the case that a person considers themselves entitled to act as a plaintiff in a judicial process, he or she may request his or her intervention from the judge, in the state in which the process is found.

Peruvian law also enables the person who considers themselves the holder of a right discussed in a judicial process (main exclusionary intervention), to ask the judge for his or her intervention in it, formulating for that purpose his or her demand against the plaintiff and the defendant (Article 99 Code of Civil Procedures). The main exclusionary intervention is only admissible before the issuance of the judgment of first instance and the processing of the request does not suspend the process, but the issuance of the sentence. The intervening party is considered as one more party in the process and has the same probative powers as the original parties.

Likewise, the defendant who considers that another person, in addition to him or her, or in his or her place, has some obligation or responsibility in the right discussed in the process, may request their incorporation into the process as a civil defendant (articles 102 and 103 of the Code of Civil Procedures).

Both the defendant and the plaintiff have the right that, in the event of being winners in a trial, the judge orders that the other party reimburse their defence costs. The possibility of establishing a precautionary measure or bond of some kind, at the beginning of the process, is not contemplated to guarantee the reimbursement of said defence costs. However, once the sentence is passed and the award of costs has been established by the judge, it is possible to request a precautionary measure to ensure its payment.

In the specific case of the precautionary measures, one of the requirements established for its granting is that the applicant grant a “counter-caution” to guarantee the damages that the defendant could suffer, which is not limited to defence costs.

Likewise, it is important to point out that, in the case of contentious-administrative processes, public administration entities are exempt, by law, from the assumption of costs and defence costs of the counterparty.

Interim applications/motions costs are regulated annually by a table of fees approved by the judiciary, which are fixed according to the subject and amount of controversy. The entities of the Peruvian State are exempt from the payment of said fees.

The Peruvian legal system does not establish a specific timeframe for the ruling of a request for precautionary measure, its resolution speed depending on the procedural burden of the court and the type of process in which said request is made.

It is not possible to request discovery, either in civil cases or in any judicial process. The evidence is limited to that offered by the parties, or to evidence that the judge decides ex officio, expressly and precisely, and it is not possible for the counterpart to request the generic display of documents.

It is not possible to obtain a discovery from third parties’ outside the process. Third parties are only required to display specific documents that belong or clearly concern or refer to any of the parties (Article 259 Code of Civil Procedures).

As indicated, it is not possible in court proceedings to request a discovery. However, this is allowed in the arbitration by agreement of the parties or if the arbitration court so provides.

As a general rule, the evidence is expressly stated in the suit and in the answer to the complaint. However, it is possible that the claimant may request the performance of an anticipated test at the beginning of the process, justifying the need and the reason why it is required to have this evidence prematurely (ie, danger of disappearance of the evidence).

Likewise, the judge may order the presentation of a certain evidence, whenever it considers necessary, before issuing a judgment.

The Peruvian Constitution recognises the fundamental right of every person to keep professional secrecy. It is by virtue of this constitutional mandate that the attorney-client privilege, and the confidentiality of the information accessed by a lawyer in the exercise of sponsorship, are protected by the legal system. Indeed, the Organic Law of the Judiciary imposes as a duty of the sponsoring lawyer the rigorous fulfilment of professional secrecy, since the criminal legislation establishes that the infraction of said obligation constitutes a crime (Article 165 Criminal Code).

On the other hand, there is no distinction in the scope of professional secrecy regarding in-house and external lawyers.

In civil proceedings, the only rule for displaying documents, other than discovery, is that the requested evidence does not relate to the object of the process. Additionally, a party may refuse to present a specific evidence in cases where such an exhibition may affect the constitutional rights of the party.

In Peru, precautionary measures can be granted in any type of process, in order to guarantee compliance with the final decision, provided that the applicant certifies that the requested measure meets the following three requirements: (i) the likelihood of the right invoked; (ii) the danger in the delay; and (iii) the reasonableness of the measure to guarantee the effectiveness of the sentence. Likewise, in civil proceedings, the applicant is required to grant a real or personal counter-caution, in order to assure the affected party with the precautionary measure of the damages and losses caused by the execution of the same. In the case of the constitutional process of amparo there is no counter-caution, due to the conflict of the violation of fundamental constitutional rights.

It is important to note that in the Peruvian system all precautionary measures are granted without knowledge of the counterpart executed.

However, regarding the types of precautionary measures, these can be classified as:

  • those which can be requested before the start of the process or once initiated;
  • to innovate or not to innovate – the first is sought to replace the state of fact or right whose alteration is sustenance of the demand, while the second seeks to preserve the situation of fact or right invoked in the lawsuit;
  • generic or specific – the first (which is not provided for by Peruvian legislation) ensures the most adequate compliance with the final decision, while specific measures would be liens, seizure and recording of suit in public registries.

The lien consists in the affectation of a good or right of the obligated party, even when it is in the possession of a third party. Among the types of lien that exist are: (i) lien in the form of withholding, in which case the money withheld is deposited in the National Bank by the person obligated to pay or frozen by the financial institution; and (ii) seizure in the form of registration, in which case the seizure falls on goods registered in public records, whose registration is accredited through registration in the same records.

In Peruvian legislation there are no precautionary measures that limit the development of a parallel process since, in that case, if there are related processes, one of the processes can be accumulated or suspended until the other is resolved.

All precautionary requests have as a requirement the danger of delay, which implies that they are urgent per se. In that sense, the courts grant a preferential treatment for evaluation and granting. However, the granting of this depends on the procedural burden of the court before which it has been requested.

As indicated previously, all precautionary measures are granted without knowledge of the executed counterpart (ex parte basis), because the processes are basically written.

As indicated previously, in the civil proceedings the requesting party of a precautionary measure is obliged to grant a real counter-caution (deposit granted before the National Bank) or personal (personal bond), which serves to insure the affected for the damages and losses generated by the precautionary measure. In that sense, the counterclaim offered would proceed in two cases: (i) that the Superior Chamber revoke the precautionary measure granted by the court; or (ii) that having declared the claim unfounded, the executed party does not renew the execution of the counterclaim.

It is important to keep in mind that the counterclaim offered by the performer can be graduated, modified or even changed by the judge, in order to guarantee the damages that the execution of the precautionary measure could cause.

The precautionary measures have certain limits, established in Article 648 of the Civil Procedure Code. In accordance with this norm, the following are non-attachable assets:

  • family assets;
  • goods for personal use and those that are essential for people's livelihoods, unless it is a matter of guaranteeing their payment;
  • movable assets indispensable for the exercise of the profession, unless it is a matter of guaranteeing their payment;
  • the decorated badges, uniforms and the weapons of public servants;
  • salaries and pensions, up to the limit of five procedural reference units, with the excess attachable up to a third – food obligations are guaranteed, up to the limit of 60% of total income, with the sole deduction of the discounts of the law;
  • food pensions;
  • the movable property of religious temples.

The precautionary measure of attachment is in the form of registration against the property registered in the name of a third party, but only when the applicant has proven that the property belongs to the debtor, but is in the name of a third party.

As indicated before, all precautionary requests are granted without knowledge of the executed party, so it is not necessary to perform any act of execution by the executed party.

The processes in Peru are eminently written. Orality is recognised as an exception to this rule in the case of labour and criminal proceedings. Notwithstanding the foregoing, judicial proceedings admit the performance of oral proceedings such as: (i) the statement of witnesses; (ii) the statement of the parties; (iii) oral support of expertise; and (iv) the oral report of the case by the lawyers.

Timing of oral intervention of the parties and their lawyers in the process, as well as witnesses and experts, is determined discretionally by the judge, taking into consideration the complexity or size of the case.

In the Peruvian legal system, jury trials for civil cases are not regulated.

The general rule is that the evidence must be offered in the postulatory briefs: (i) claim and its answer, and (ii) counterclaim and its response. Subsequently, it is only possible for parties to present evidence for new facts linked to the dispute. Additionally, the judge has the power to request and act ex officio evidence.

The participation of the experts in the process is done through the presentation of a written expertise which can be requested by one of the parties or also ordered by the ex officio judge. The expert opinions are given by the experts at the time of the hearing of evidence, being able by exception, when the complexity of the case merits it, to order the realisation of a special hearing for the exposition of the experts (Article 265 Code of Civil Procedures).

The only oral proceedings with access to the public in the civil process are the oral report hearings of the parties' attorneys, in which case the statements made are not transcribed. In this sense, some of these public oral actions may in certain cases be broadcast on television.

On the other hand, the other oral actions carried out in the process (expert report, etc) are not public, and the oral intervention of the actors must be transcribed at the time of the diligence.

Exceptionally, the parties may request of the judge that the oral reports of lawyers be held without the presence of the public – this would be in those cases in which their participation could affect the rights of third parties (eg, hearings in cases of minors).

Third parties may have access to the judicial file once the process has been completed and its archiving has been ordered.

According to Peruvian national legislation, the judge is the “chairman of the process” and, as such, administers all proceedings. In that sense, he or she is competent to define the dates for the performance of the different actions to be carried out in the judicial process, direct the hearings, require the performance of ex officio evidence, and cross-examine the parties, witnesses, experts and lawyers.

As a general rule, in the civil process, the final decision of the judge is issued after the oral reports hearing of the parties' lawyers has been carried out. However, exceptionally in the criminal and labour field, some decisions may be issued in the oral hearing. Thus, in the investigation stage – within the criminal process – decisions may be issued at the end of the respective oral hearing. Also, in the labour process the final sentence may also be issued at the end of the hearing of the parties.

The Peruvian national legislation establishes maximum deadlines for the resolution and conclusion of legal proceedings (Article 124 Code of Civil Procedures). However, in practice, given the procedural burden of the different jurisdictional bodies, these deadlines are usually exceeded.

In the event that a settlement occurs within a judicial process, there will always be a control of legality and provenance by the judge before approving the agreement – ie, about available rights, which do not affect public order and benefits are granted reciprocals. There can be several assumptions:

  • if the parties reach a comprehensive agreement that covers all aspects to the satisfaction of the parties and there is no impact on essential rights, the agreement is approved and acquires the quality of judgment;
  • if the agreement is partial, on certain aspects of the claims, it is partially approved with respect to the points resolved and the process is continued with respect to the other points;
  • if there is a final sentence, any agreement regarding the matters ruled in it would not be admitted, but the conditions and the formality for the sentence execution.

Finally, keep in mind that in Peru it is valid to carry out extra-judicial settlement (outside a judicial process) without the approval of any judge being necessary. In this case, the settlement also acquires the quality of sentence.

Individuals may agree to keep certain facts or agreements confidential and determine the penalties in case of non-compliance; however, in a judicial dispute, the judge may request the display of the agreement.

The private agreement is considered a title of execution and, if the agreement is given before a judge, it has the character of a sentence. This implies that it is feasible to resort to the judge to execute the various ends of the agreement.

The execution process is regulated by articles 688.8 and 690.D of the Code of Civil Procedure, namely that:

  • when the demand is received, the judge requires the immediate fulfilment of the agreed terms;
  • the required party may challenge compliance only under the assumptions of the nullity or falsity of the agreement, the obligation being terminated or that it cannot be fulfilled or, is not determined;
  • a brief period of three days is conferred on the challenge or opposition formulated to be acquitted by the plaintiff, after which a judgment is issued, which can be appealed;
  • the execution procedure is initiated only when there is a final pronouncement by which the demand for execution is accepted and the agreed payment, refund of rights, delivery of goods or, any agreed aspect can be requested.

The settlement being a mutual agreement, the parties may voluntary agree to its termination and, unilaterally, are only able to ask for its enforceability. In exception, the court can declare the settlement void or ineffective (ie, when it affects disposable rights.

Through the sentence, the judge resolves the dispute and concludes the process, issuing a ruling for that purpose (express, precise and reasoned decision), which may contain the following, according to the merits of the dispute:

  • the declaration on the existence of a right;
  • monetary compensation (payment of monetary obligations);
  • the order to carry out or execute some action;
  • the rectification of a previous act;
  • collection of court costs and fees, and taxes, if applicable.

In Peru's legal system, a claim for compensation for damages is followed in accordance with the general rules of civil liability established in the Civil Code, since such liability in turn may have a contractual or torts origin.

In both regimes, the damages are:

  • patrimonial damage (ie, one that damages rights of an economic nature) is classified in turn into: (i) actual damages, referring to the loss that ensues in the victim's estate, and (ii) loss profits, related to what has been or will no longer be perceived by the victim.
  • extra-patrimonial damage is classified in turn into: (i) moral damage, defined as that situation of affliction, suffering, pain that is caused to the person from the injury of his feelings, and (ii) damage to the person, which occurs when the physical integrity of the subject, their psychological aspect or even their life project is injured.

With regard to the limitation of liability, it can only be exonerated or limited in cases of slight fault; consequently, exemptions or limitations of liability in case of wilful misconduct or gross negligence are considered as null and void agreements.

In the Peruvian system there is no punitive damages, nor consequential or indirect damages. However, parties may agree on liquidated damages.

The rules for the accrual of taxes are the same, regardless of whether or not there is a judicial process; therefore, those do not distinguish between the different stages of it (before or after the trial). The interest rates applicable in Peru are as follows:

  • the compensatory tax is the remuneration or consideration that is received for the temporary transfer of capital constituted by money or fungible goods, as long as the default constitution does not occur;
  • the moratorium tax (late payment) is intended to compensate the delay in payment, and its application arises by legal mandate without the need for an agreement.

The maximum compensatory tax and default tax rates are established by the Central Reserve Bank, except for financial institutions, for which there is no limit.

National judgments have the status of executive title and are executed through a single enforcement process, in accordance with the provisions of Article 688 and following of the Civil Procedure Code.

In this case, it is sufficient that the performer presents the title and that it contains a certain obligation, express and enforceable; if it is an obligation to add money, this amount is liquid or liquidable. Consequently, the judge rules an execution mandate, which can only be contradicted by the following: (i) compliance with the obligation, and (ii) the termination of the obligation. Notwithstanding the limited assumptions to contradict the execution of a sentence, this process can be evaluated even in the Supreme Court.

Before requesting the execution of a foreign judgment, it is necessary that it be previously recognised by Peru's legal system. For this, the applicant requires recognition before a judge, through a non-contentious process, in which there is a presumption of reciprocity for its execution, unless the executed proves otherwise.

Once the sentence is recognised as such, its execution proceeds as a national sentence.

The Political Constitution of Peru establishes as an essential guarantee of effective judicial protection and due process the plurality of instances in the processing of judicial proceedings. Along these lines, any judicial process contemplates the possibility of challenging the appeal issued by the court of first instance via appeal.

In those judicial proceedings in which the second instance is in charge of a higher court of justice, it is also possible to lodge an appeal for the purpose of having the Supreme Court of the Republic review the existence of violations of due process and the application of the right during the process.

In the constitutional proceedings, against the second instance ruling issued by the constitutional superior court, it is possible that only the plaintiff will file a constitutional grievance appeal that will be resolved by the Constitutional Court.

Likewise, it is possible to appeal the resolutions issued by the judge, other than the judgments, by means of the following mechanisms (Article 121 Code of Civil Procedures): (i) replacement that is brought against the decrees (resolutions that drive the process); and (ii) appeal that is filed against the “court orders”, which resolve relevant procedural issues outside the merits of the dispute.

As a general rule, the appeal is filed before the same court that issued the judgment or resolution so that it qualifies its admissibility and elevates it to the corresponding superior court. In general terms, the admissibility and provenance requirements for filing an appeal, according to the process, are: the submission within the legal deadline; the payment of the fee (with the exception of constitutional processes and those to which “judicial assistance” has been provided); and expression of precisely what rights have been violated with the act appealed.

The civil process in Peru is mainly written, so that the filing of the appeal is made once the “affected” party receives notification of the decision to appeal. From that moment the deadline to file the appeal is calculated, which must also be formulated in writing. As indicated, the deadline for submitting the appeal may vary by virtue of the process in which it is processed, as well as the act subject to appeal.

The second instance can only rule on those matters that have been the object of express challenge by the appellant. In the case of judgments, the higher instance becomes aware of the case under appeal by reviewing the facts and the right argued by the parties, as well as the evidential means offered, in the first instance, being able to make an oral report to state their position. By exception, the parties may apply for new evidence related to new facts related to the dispute, notwithstanding that the court may request additional ex officio evidence.

Finally, the Peruvian legal system is governed by the principle of iuria novit curia, so that both the parties and the court can specify their positions and judgments, respectively, attending to legal bases not invoked by the parties initially.

Peruvian legislation does not allow judges to establish conditions, of any kind, for filing an appeal. Judges should limit themselves to verifying compliance with the requirements established by the legislation for each process, in order to determine the admission and origin of an appeal.

The second instance is empowered to confirm, revoke or annul the subject matter of appeal. In the case of revocation, the judge modifies the decision by resolving the merits of the dispute in a different sense from that of the appealed decision. In case of annulment, it orders the court of first instance to re-issue sentence, establishing guidelines for this.

The expenses related to the litigation are initially assumed by each of the parties. Subsequently, when issuing sentence, the judge condemns the defeated party to assume the expenses incurred by the other party.

Peruvian law distinguishes between: (i) costs that are constituted by judicial fees, fees of judicial assistance bodies and other judicial expenses incurred during the process; and (ii) costs are the fees of the attorneys of the winning party, plus 5% to the Bar Association of the respective judicial district.

If several claims have been discussed in the process, the sentence affects only those received in favour of the winner.

If the convicted party does not agree with the calculation of the court costs and fees, it can file an appeal for the higher instance to review the decision.

The costs are 100% reimbursed by the losing party. As for the amount of the attorney's fees of the winning party, there must be a liquidation at the end of the judicial process in which the reasonableness of the same is determined depending on the complexity of the work performed. In order to make the collection of costs effective, it is essential that the winner submit to the court by a certain date the documents that accredit the payments made to the defence lawyer, as well as the corresponding taxes.

If the court costs and fees are not reimbursed immediately by the losing party, the legal interest rate is applied until its effective payment.

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

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

The procedural legislation contains a regulation to use ADR in processes before the civil or labour and administrative courts; however, since it is not obligatory and lacks a sanction, the lack of agreement in these channels means the mechanism is not widely used.

If the arbitration is expressly agreed, the party cannot refuse to intervene in said jurisdictional mechanism.

The Justice Department has small facilities in certain cities of the country to promote ADRs. On a private level, since the summons to a conciliation meeting are mandatory for certain cases, there are a variety of National Conciliation Centres that are regulated by the Justice Department.

Regarding arbitration, it can be developed independently or through specialised private centres, operating on the basis of the prior arbitration agreement. The best known, and those that require the prior registration of the arbitrators, are: Lima’s Chamber of Commerce (CCL), the American Chambers (AMCHAM), and the Center for Analysis and Resolution of Conflicts/ PUCP (CARC).

In Peru, the only rule applicable to the development and conduct of arbitration is Legislative Decree No 1071, which indicates that the parties may establish, by mutual agreement, the rules they deem appropriate or subject to the regulations of the arbitration institutions that they consider convenient.

The rules that can be submitted for the conduct of the process are found in the Rules of Practice of the International Bar Association (IBA) or the Rules for the Efficient Management of Procedures in International Arbitration (Prague Rules).

However, in the absence of agreement of the parties, the arbitrators have the power to apply the rules they deem appropriate to the particular case. In that case, the arbitrators resort only to the principles in arbitration or to the customs in the matter, but in no case do they resort to civil procedural legislation.

On the other hand, in the matter of recognition and enforcement of arbitration awards, the Peruvian legal system is governed by the provisions of both Legislative Decree No 1071 and the Civil Procedure Code.

The only limitation to submit disputes to arbitration is that they deal with matters that are not freely available. In that sense, in the Peruvian system, contracts with the state are arbitrated (in which case it is mandatory), as well as disputes between consumers and their suppliers (consumer arbitration). However, this arbitration has its own regulation in the Peruvian system, so it is not governed by Legislative Decree No 1071.

In Peru, the appeal for annulment is the only means to challenge an arbitration award, which is regulated only in Legislative Decree No 1071.

In accordance with this rule, the validity of the same is evaluated through the annulment resource in accordance with the grounds established, but without evaluating the merits of the dispute, or qualifying the criteria, motivations or interpretations adopted by the arbitral tribunal. Moreover, the rule prohibits judges, who are responsible for assessing the appeal for annulment, to rule on the merits of the dispute decided in an arbitration award, subjecting them to liability otherwise.

However, the grounds for requesting the annulment of an arbitration award limit the following assumptions, in accordance with Article 63 of Legislative Decree No 1071:

  • (i) the arbitration agreement – nonexistence, nullity or nullity;
  • (ii) the right of defence of the parties – violation for failure to notify an arbitrator or any other case;
  • (iii) the composition of the arbitral tribunal or the arbitration proceedings that have not been adjusted to the agreement of will of the parties;
  • (iv) the resolution of a dispute not submitted to the arbitrators' decision (extra petita);
  • (v) the solution of non-arbitrable matters;
  • (vi) the subject of the dispute is not subject to arbitration or is contrary to public order;
  • (vii) the arbitration award issued after the deadline.

In the case of cases (i), (ii), (iii) and (iv), they only proceed as grounds for annulment when they have been the subject of a claim in the arbitration process.

However, the processing of this suit must be carried out within a period of 20 days, counted from the notification of the arbitration award or the resolution that resolves the requests for rectification, interpretation, integration and exclusion. For this, the plaintiff must expressly and clearly indicate the grounds invoked, duly accredited, since the evidence is limited to the offer of documents.

Once the appeal for annulment is resolved, the defendant may file an extraordinary appeal (casacion) against said sentence with the Supreme Court. That exceptional process is not intended to be a substantial challenge, but only intended for review should the sentence be issued according to the current procedures and legislation.

On the other hand, although the appeal for annulment constitutes the only means to challenge against an arbitration award, sometimes this award is subject to a constitutional Civil Rights Action, in order to evaluate the violation of constitutional rights. However, the Constitutional Court has established in the Minera Maria Julia Case (No 00142-2011-AA), as a binding precedent, the exceptional nature of an arbitration protection process, limiting it to the following three assumptions:

  • (i) when the direct or frontal violation of the binding precedents established by the Constitutional Court is invoked;
  • (ii) when in the arbitration award diffuse control has been exercised over a norm declared constitutional by the Constitutional Court or the judiciary, as appropriate, invoking the violation of Article VI of the Preliminary Title of the Constitutional Procedural Code;
  • (iii) when the Civil Rights Action is filed by a third party that is not part of the arbitration agreement and is based on the direct and manifest involvement of its constitutional rights as a result of the award pronounced in said arbitration, unless said third party falls within the assumption of the Article 14 of Legislative Decree No 1071.

Assumptions (i) and (ii) only apply if they had been the subject of an express claim before the arbitral tribunal and that the latter has been dismissed by it.

In the case of the execution of national awards, the jurisdictional body issues the enforcement mandate for the sole merit of the arbitration award and, if applicable, the resolutions that resolve the requests for rectification, interpretation, integration and exclusion of the award. Against this mandate, the executed party can only object by accrediting (i) the fulfilment of the obligation, or (ii) the suspension of the execution by virtue of the process of annulment of the same award. If the opposition is declared founded, an appeal against these proceeds and against the resolution that resolves the opposition proceeds cassation.

On the other hand, in the case of the execution of foreign awards, it is necessary to take into account that these previously need to be recognised – that is, that the state grants it enforceability within the national territory. The recognition of an arbitration award is regulated in articles 75 and 76 of Legislative Decree No 1071, according to which the treaty that will be applicable for its recognition or the national norm is applied, if it is more favourable. In case of applying the national norm, recognition is requested before a judge in a non-contentious process.

Once the foreign arbitration award is recognised, it is executed in accordance with the treaty that is applicable for its execution. Thus, if the Convention on the Recognition and Enforcement of Foreign Arbitral Sentences, approved in New York in 1958, is applicable, the rules for the execution of national awards could be applied, if these were more favourable.

Amprimo, Flury, Barboza & Rodríguez Abogados

Av. Circunvalación del Golf los Incas 134
Centro Empresarial Panorama
Torre 1, Oficina 1405
Santiago de Surco
Lima 33 - Perú

+51 1 208 0130

administracion@amprimoabogados.com www.amprimoabogados.com
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Law and Practice

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Amprimo, Flury, Barboza & Rodríguez Abogados is a mid-sized law firm, with offices in Lima. It is made up of lawyers praised as referents in litigation affairs. The firm's lawyers are in high demand both as litigators and arbitrators, having participated in various large-scale arbitrations, as well as represented several of the country’s most important companies in critical leading cases. Furthermore, the firm's lawyers have held positions of significant responsibility and specialisation in the public administration, especially in matters related to human rights and arbitration, as well as constitutional and administrative law. Some highlights of the firm’s most recent cases are: the successful legal representation of two concessionaries of Lima’s Massive Transportation Service (Metropolitano) in an arbitration process against the municipality of Lima; and the legal representation of the main Peruvian entrepreneurial associations in a constitutional process held against the application of Law 29729, which established an obligation to non-publicly traded companies to publish their financial statements.

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