(Pontificia Universidad Católica del Perú, 2024-09-20) Leyva Flores, Ricardo
The Peruvian electricity market operator is COES, it is a private company under public law, composed and governed by generators, transmitters, distributors, and the Free Users. The Board of Directors, which is the final authority, makes its decisions without any government intervention. Disagreements with COES decisions are resolved through Arbitration at Law or Arbitration of Conscience. Peru has a significant arbitration practice against the electricity market operator decisions (COES). This is evidenced by the Awards issued during the period 2010-2023. The purpose of this paper is to analyze this practice, focusing on those discussions that may be useful for implementing improvements in dispute resolution mechanisms in the electricity sector (such as the implementation of permanent tribunals), something which could be worthy for other markets as well. At the time of the decision, the arbitrators exercise full jurisdiction; therefore, they have the power to resolve the dispute definitively, even if the COES has not made a substantive statement when issuing its decisions. However, tribunals cannot issue general guidelines, binding precedents or condition the issuance of future COES decisions, which affects the uniformity of awards, as we have seen throughout this article. The main problem found is the lack of uniformity, and it could be explained in the conformation of the tribunals (case-by-case basis) and the broad criterion employed in Arbitrations of Conscience, where arbitrators are allowed to omit the legal framework. Other relevant problems are also analyzed.
