This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Republic of Peru.

2. Date of entry into force of the New York Convention

5 October 1988.

(Source: Legislative Resolution No. 24810 of 24 May 1988, published on 25 May 1988 and in force on 26 May 1998. According to Art. 109 of the Peruvian Constitution of 1993, the law is effective as of the next day following its publication in the Official Gazette, unless otherwise stated in a given law that postpones its entry into force in whole or in part.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

No.

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

While Art. 5 of the Peruvian Arbitration Law (hereinafter 'Arbitration Law') contemplates the possibility of an award made in Peru being international, Art. 74.1 of the Arbitration Law states that foreign awards are those made outside Peruvian territory and that such awards will be recognized and enforced pursuant to the New York Convention, the Panama Convention or any other treaty to which Peru is a party. This means that both national and international awards made in Peru will be enforced pursuant to Arts. 62(68 of the Arbitration Law whereas foreign awards (i.e. those made outside Peru) will be recognized and enforced pursuant to Arts. 74(78 of the Arbitration Law and hence by application of the New York and Panama Conventions.

(Source: Legislative Decree No. 1071 (Peruvian Arbitration Law) of 27 June 2008, published on 28 June 2008, in force as of 1 Sept. 2008.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

Current sources of law applicable to the recognition and enforcement of foreign awards are as follows:

(i) New York Convention, enacted by Legislative Resolution No. 24810 of 24 May 1988;

(ii) Panama Convention, enacted by Legislative Resolution No. 24924 of 7 Nov. 1988;

(iii)Peruvian Arbitration law, enacted by Legislative Decree No. 1071 of 27 June 2008;

(iv) Code of Civil Procedure, enacted by Legislative Decree No. 768 of 4 Mar. 1992, and its Unified Text, enacted by Ministerial Resolution No. 010-93-JUS of 8 Jan. 1993;

(v) Peruvian Civil Code, enacted by Legislative Decree No. 295 of 24 July 1984, published on 25 July 1984, in force since 14 Nov. 1984.

The Arbitration Law regulates the recognition and enforcement of foreign arbitral awards in Part VIII. According to Art. 74, the recognition and enforcement of foreign awards is regulated by the more favourable of the New York and Panama Conventions. This usually results in the application of the New York Convention. According to Art. 78, the provisions of the Arbitration Law will apply when they are more favourable than those of the New York Convention.

Art. 749(11) of the Code of Civil Procedure (CPC), establishes that requests for recognition and enforcement of foreign awards are made in non-contentious proceedings. Art. 837 of the CPC states that the general provisions of Part VI of the CPC related to non-contentious proceedings will apply to the recognition of foreign arbitral awards if those provisions are not contrary to the provisions of the Arbitration Law.

Finally, the Arbitration Law indicates that proceedings for the recognition and enforcement of foreign arbitral awards initiated before the Arbitration Law became effective will continue to be regulated by the former Arbitration Law No. 26572 of 5 Jan. 1996.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Ten years from the date on which the action can be initiated, which is the date the foreign arbitral award was rendered.

(Source: Legislative Decree No. 295 (Peruvian Civil Code), Arts. 1993 and 2001(1).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

For recognition, the competent court is the commercial civil chamber or civil chamber of the Superior Court with jurisdiction over the place where the respondent is domiciled, or, if the respondent is not domiciled in Peru, where the respondent´s assets are located or where it can exercise its rights.

For enforcement, the competent court is the judge specializing in commercial matters or the civil judge at the first instance court where the respondent is domiciled, or, if the respondent is not domiciled in Peru, where the respondent´s assets are located or where it can exercise its rights.

(Source: Arbitration Law, Arts 8.5 and 8.6.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

Courts in Peru are bound by the provisions of the Arbitration Law and the New York Convention, which require Peruvian courts to recognize and enforce foreign arbitral awards. See Q.7 above for the criteria upon which jurisdiction is determined.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Inter partes.

Upon receiving a request for recognition and enforcement, the court will notify the respondent, which has 20 days to submit its arguments. The court will then provide a date for the hearing (Vista de la Causa) within the next 20 days. Once the award has been partially or totally recognized by the court, the interested party can request the enforcement of the award. After reviewing the documents, the court will render an enforcement order to be executed within 5 days. The party required to execute can present documents proving that the obligations laid upon it have been fulfilled or enforcement has been suspended by a court where the award was rendered. The applicant has 5 days to respond, after which the court will render its decision within the next 5 days. A decision upholding the respondent's objection can be appealed to the commercial civil chamber or civil chamber of the Superior Court.

(Source: Arbitration Law, Arts. 8.5, 8.6, 68 and 76.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes. See Q.9 with regard to recourse against enforcement.

If recognition of all or part of an award is refused, an appeal can be made to the Supreme Court by way of cassation (recurso de casación).

(b) How many levels of appeal or recourse are available against this decision?

One. See above.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Possession of assets will be possible only after the end of the enforcement proceeding.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

For recognition: the original or a certified copy of the award, as well as the original or a certified copy of the arbitration agreement.

(Sources: New York Convention, Art. IV(1)(a); Arbitration Law, Arts. 8, 9 and 76.)

For enforcement of an award that has been recognized in full or in part: a duly legalized copy of the award, together with any corrections, interpretations, additions and exclusions, and evidence of any enforcement action taken by the arbitration tribunal.

(Source: Arbitration Law, Arts. 68, 77 and 76.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

Entire documentation, i.e. entire award and arbitration agreement (original or a copy).

(Sources: New York Convention, Arts. II(2) and IV(1)(a) and (b); Arbitration Law, Arts. 68, 76, and 77.)

(c) Are originals or duly certified copies required?

Originals or duly certified copies can be presented.

(Sources: New York Convention, Art. IV(1)(a) and (b); Arbitration Law, Art. 9.)

(d) How many originals or duly certified copies are required?

One, although in practice there should be two copies-one for notifying the other party of the proceedings.

(Sources: New York Convention, Art. IV(1)(a) and (b); Arbitration Law, Arts 68, 76 and 77.)

(e) Does the authority or court keep the originals that are filed?

Yes.

13.

(a) Is it necessary to provide a translation of the documents supplied?

If the foreign award is not in Spanish, an ordinary translation must be submitted unless, in light of the circumstances, the competent court requires that an official translation be provided within a reasonable time.

(Sources: New York Convention, Art. IV(2); Arbitration Law, Art. 9(2).)

(b) If yes, into what language?

Spanish.

(Sources: New York Convention, Art. IV(2); Arbitration Law, Art. 9.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

The translations have to be certified if, in light of the circumstances, the competent court considers that an official translation must be provided within a reasonable time. In this case, an official translator must certify the translation.

(Sources: New York Convention, Art. IV.2; Arbitration Law, Art. 9(2).)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

It is necessary to translate the entire foreign award and the arbitration agreement.

(Sources: New York Convention, Arts. II and IV(2); Arbitration Law, Arts. 68 and 76.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Given the silence of the Arbitration Law on this question, Art. VI of the New York Convention applies (see Q.5 above), which allows recognition and enforcement proceedings to be stayed pending the outcome of an application to set aside or suspend the foreign award before the competent authority.

(Sources: New York Convention, Arts. V(1)(e) and VI; Arbitration Law, Arts. 74 and 75.8.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

None. Forum non conveniens is not provided for in Peruvian law.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No. The provision of security must be requested by the interested party in accordance with Art. VI of the New York Convention. The judge may grant a stay even without security, if deemed appropriate.

(Source: New York Convention, Art. VI.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

There is no specific law that protects the documents filed in legal proceedings. In practice, while the case is ongoing, the documents submitted may be accessed only by the parties involved in the arbitration. Once archived, the documents may usually be accessed by the general public.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Recognition proceedings include a hearing called Vista de la Causa. There are no specific rules regarding the confidentiality of this hearing, which is subject to the same conditions as mentioned in Q.15(a).

(Source: Arbitration Law, Art. 76.3.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

In Peru, only judgments in constitutional proceedings (such as habeas corpus or amparo), decisions handed down by the Constitutional Tribunal and rulings of the Supreme Court in cassation proceedings are published. In the event recognition or enforcement proceedings reach one of these levels, publication would not include the award itself. Although possible to request the deletion of the names of parties and confidential information, such requests are not regulated by law and would have to be dealt with on a case-by-case basis.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

References to the term 'award' in the Arbitration Law cover both partial and final awards. This means that the provisions on recognition and enforcement of arbitral awards apply also to partial awards, and the recognition of such awards is possible provided it cannot be refused on the grounds set forth in Art. 75 of the Arbitration Law, which are modelled on those of Art. V of the New York Convention.

(Source: Arbitration Law, Arts. 6.f and 75).

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

The Arbitration Law requires a judge to order a party to fulfil the obligations laid upon it by the award, without excluding or restricting non-monetary relief.

(Source: Arbitration Law, Art. 68.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

The Arbitration Law allows partial recognition and enforcement of foreign awards by the competent court in specific instances. For example, if the award deals with issues not submitted to arbitration, those issues that are submitted to arbitration may be enforced if they can be separated from those not submitted to arbitration.

(Source: Arbitration law, Art. 75(6).)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

The Arbitration Law does not allow recognition and enforcement in such circumstances.

(Source: Arbitration Law, Art. 75.2.e.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur:

Javier Ferrero

Other contributor:

Alonso Gurmendi