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El éxito de trabajar en conjunto: prácticas colaborativas recomendadas al diseñar un contrato de construcción
(Pontificia Universidad Católica del Perú, 2023-08-16) Otárola Azabache, Silvia; Silva Longobardi, Paula
The construction industry is highly conflictive and adversarial. Given the existence of clauses that generate an evident imbalance between the parties and where the solutions proposed to result in the benefit of only one party, the need to incorporate collaborative practices that promote active and reciprocal cooperation between the parties during all stages of the project becomes more evident. This article aims to recommend three practices that, if included in the construction contract, help to carry out an efficient contract administration, to reduce the potential for possible conflicts, and, with it, to prioritize the project’s objectives.
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Cláusulas escalonadas de solución de controversias: una aproximación a sus principales problemáticas
(Pontificia Universidad Católica del Perú, 2023-08-16) Rodríguez Uriol, Dario Andrés
The multi-tiered dispute resolution clauses are a very popular type of arbitration agreement nowadays. These clauses provide that, in order to resolve disputes arising out of a contractual relationship, the parties may or should have recourse to more than one dispute resolution mechanism, which will be used progressively, one after the other. Although this type of covenants may present advantages for the parties, they may also become problematic clauses, which, when inadequately designed or managed, may be a source of additional conflicts to those already arising. For this reason, this article will analyze the main problems that arise in connection with this type of agreement. More specifically, three issues are analyzed in relation to the pre-arbitration stages: their enforceability, the most relevant factors to be taken into account for their execution and compliance, and the consequences of non-compliance for the arbitration process.
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El back charge en los contratos de construcción. Su configuración en la praxis transaccional internacional
(Pontificia Universidad Católica del Perú, 2023-08-16) Vásquez Rebaza, Walter
This work addresses, from a legal perspective, a legal remedy specific to construction contracts that has significant practical applicability in contemporary projects: the back charge. Despite its importance, the understanding of the back charge as a contractual instrument and as a private legal remedy is still quite limited, resulting in significant gaps in legal knowledge on the subject in Peru and, in general, in civil law jurisdictions.In light of this reality, this legal research article proposes a basic configuration of the back charge, its concept, characteristics, and standard operation, as well as its main practical and dysfunctional aspects. It also examines whether the Peruvian Civil Code recognizes any similar legal remedy. Furthermore, guidelines are outlined for the balanced incorporation of this concept into contemporary construction contracts.To achieve these purposes, this research takes into account the configuration of the back charge in private contemporary construction contracts with an international focus, in which the legal remedy in question originates voluntarily (i.e., derived from the private autonomy of the parties), sometimes considering international standard contractual models (such as FIDIC and NEC).
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Errores probatorios en materia tributaria
(Pontificia Universidad Católica del Perú, 2023-08-16) Dávila Alvarado, César Alejandro
The aims of this paper are: (i) at a conceptual level, to present a typology (not exhaustive) of evidentiary errors that usually occur in tax proceedings and processes in Peru, grouped according to the stages of the evidentiary activity where they occur, and to propose a terminological apparatus to describe with greater explanatory power what happens when a decision is made on the factual premise in tax proceedings and processes. Similarly, (ii) with regards to the dogmatic dimension, an examination shall be undertaken to scrutinize the legal ramifications ensuing from these errors, in strict accordance with the prevailing legal framework.
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El aftermath de la victoria de David ante Goliat: A propósito de la ejecución de laudos en los arbitrajes entre inversor-Estado
(Pontificia Universidad Católica del Perú, 2023-08-16) Bedoya Denegri, Alonso
It is well known that the confrontation in an arbitral procedure to obtain a favorable award implies a strenuous effort by both the parties and their respective legal. Even more in the framework of international arbitration and investment treaty arbitration between a State and a foreign investor. However, it should not be overlooked that many times the heart of the matter lies in the enforcement of the award. Having a favorable award is no small task, yet we cannot ignore the dire reality in which investors face off a perilous journey in order to enforce what is lawfully theirs.Thus, this article deals with the aftermath of a victorious award for the foreign investor, who often cannot see the decision contained in the award materialize, due to a lack of compromise of the respective State which adduces several foreign immunity regulations, which makes enforcing an award a titanic feat, therefore turning the arbitral victory into a Pyrrhic victory.In this scenario, and for illustration purposes we will use, the biblical passage of David and Goliath to demonstrate the Dantesque feat to which each investor must succumb in order to enforce assets pertaining to the State. Consequently, this paper will analyze the ways in which investors may have a chance of enforcing a favorable award without being limited to sovereign immunity legislation.
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Reflexiones sobre la posición del Tribunal Constitucional peruano respecto a los intereses moratorios en materia tributaria
(Pontificia Universidad Católica del Perú, 2023-08-16) Durán Rojo, Luis; Arbieto Alfaro, Hugo Martín
The peruvian Constitucional Court established a vinculant precedent about the inaplication of moratorium interest for tax debt due to the administration’s or judge delay in resolving people and companies demand’s. The autors explore the creation of precedents by the constitucional court, the nature of moratorium interest and analyzes, from the legal and constitutional perspective, if the inaplication of moratorium interest is a correct, proportional and reasonable solution for the administration or judge delay in resolving tax demand’s.
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Inversiones en ambiente a través del mecanismo de Obras por Impuestos
(Pontificia Universidad Católica del Perú, 2023-08-16) Villanueva Caceres, Gabriela
The Environmental Authority has identified the existence of millions of hectares of degraded ecosystems that provide ecosystem services that need to be recovered. This problem constitutes a natural infrastructure gap that must be addressed by the authorities to establish actions that promote investments in natural protection. An alternative to reduce this gap is the application of the Works for Taxes mechanism. This is a public investment execution modality that allows to have quality infrastructure and services in an agile way through the cooperation of the public and private sectors. Implemented since 2009, it operates successfully, contributing to the closing of priority infrastructure and services gaps at the national level. However, it is not usually used for the implementation of environmental investments. Therefore, this article analyzes the potential of the application of Works for Taxes as a mechanism to close environmental infrastructure gaps.
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Controversias sobre la ampliación de plazo en el marco de la obra pública
(Pontificia Universidad Católica del Perú, 2023-08-16) García Valdez, Leandro
In this paper, the author presents a logbook on the current state of controversies related to requests for extension of time in the framework of public works. Firstly, the general aspects of this legal remedy are explained. Secondly, the main controversies arising in arbitral proceedings are commented on, based on the contrast between the position that some public entities usually take to deny an extension of time, as opposed to what is regulated in the law, what is developed by doctrine and what is resolved in arbitral awards. The aim is to verify the basis of what is stated by public entities.
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La regulación del Cannabis Medicinal en el Perú
(Pontificia Universidad Católica del Perú, 2023-08-16) Loayza Ormachea, Carlos
The article develops the current regulatory framework for Medical Cannabis in Peru. At first, it presents and develops certain key concepts to understand the medicinal properties of Cannabis and its components. Subsequently, it analyzes the relationship between the fundamental right to health and its elements with Medical Cannabis. Then, it analyzes both its legal and regulatory framework and, finally, it analyzes its deficiencies and offers proposals to improve it from a regulatory perspective.
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Una revisión de la regulación de Obras por Impuestos en materia de solución de controversias y Dispute Boards
(Pontificia Universidad Católica del Perú, 2023-08-16) Tapia Benavente, Carlos
This article will analyze the current regulation of the mechanism of Obras por Impuestos, specifically, the tools for dispute resolution and will evaluate the possibility of including Dispute Boards as a contribution to prevent and solve disputes in a timely manner, cost efficient, and to promote the use of Obras por Impuestos to reduce the infrastructure gap in Peru.
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Superando una vieja enemistad: El Principio de Legalidad, la Lex Constructionis y la supletoriedad coactiva en los contratos de Obra Pública
(Pontificia Universidad Católica del Perú, 2023-08-16) Collantes Rojas, Christian
In this article, the author intends to demonstrate, through specific cases, that the custom in the construction sector (Lex Constructionis) is increasingly immersed in the Public Administration, being recognized as a supplementary regulatory source in public works contracts, by the State Procurement Law. Overcoming the idea that the custom does not has a place in public law. Likewise, it seeks to demonstrate that the responsible and reasonable importation of custom in the construction industry has not violated in any way the legality that governs public works contracts, but, on the contrary, has nurtured and strengthened it, in benefit of the public interest and of the contract administrators, who are, ultimately, the end users of the public infrastructure.
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El riesgo de financiamiento en la ejecución de infraestructura pública a través de contratos NEC 3 opción F
(Pontificia Universidad Católica del Perú, 2023-08-16) Ugarte Carmelino, Ameth; Loaiza Porcel, Alexandra
The use of standardized contracts in the implementation of public infrastructure projects has marked a milestone in infrastructure investment policies in Peru. Since 2019, New Engineering Contracts (NEC) have been the ones that have had significant use in construction projects in which one of the contracting parties is the Peruvian State. Therefore, the need arises to study financing risk management and its specific regulation in this type of contract. Given the importance of correct financing risk management in a NEC contract, this article will analyze the related duties and obligations, as well as the origin and consequences of the well-known.
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Una primera aproximación a los Contratos de Supervisión de Obra en Proyectos Públicos
(Pontificia Universidad Católica del Perú, 2023-08-16) Morón Urbina, Juan Carlos; Limas Calderón, Sherin
The purpose of this paper is to address a first approach to the execution of construction supervision contracts in public projects in Peru mains issues and challenges faced in the execution of construction supervision contracts, signed under Peruvian regulations for quality control and technical support in the contractual management of the construction of public works under the regime general and/or in the execution of concession contracts. Given the importance of these contracts in the development at the engineering or construction stage of an infrastructure investment project, their regulation, and the correct understanding of the nature of the provision of these specialized services is the central object of the present article. We briefly analyze the background of the figure of the “work supervisor” in Peruvian regulations, to identify its purpose and its scope in public works under the general regime and in concession contracts. Finally, in this article the main problems that are identified in the execution of this type of supervision contracts are raised and how they end up having a negative impact on the development of the construction of the work project, even conditioning its frustration.
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El Cuarto Pleno Casatorio Civil vs. los Plenos Jurisdiccionales: desencuentros, contradicciones e incertidumbre. Necesitamos un nuevo pleno casatorio sobre la posesión precaria
(Pontificia Universidad Católica del Perú, 2023-08-16) Pasco Arauco, Alan Augusto
The Fourth Casatory Plenary has encountered significant challenges due to the evolving circumstances. Throughout the past decade, a series of Jurisdictional Plenary Sessions have emerged, some of which have addressed issues that were not examined during the Fourth Plenary (such as the jurisdiction of Magistrate Judges to adjudicate precarious eviction cases or the potential waiver of conciliation in evictions arising from lease agreements with forfeiture clauses). Moreover, certain conclusions reached in these sessions openly contradict the precedents established in the Fourth Plenary (including the prescriptive period applicable to eviction claims or the possessory title in eviction lawsuits filed against family members).The current situation bears resemblance to the environment in which the Fourth Plenary was conducted, characterized by: (i) divergent perspectives on various aspects concerning precarious possession, (ii) a lack of certainty regarding the resolution of everyday challenges, (iii) inconsistent verdicts on identical matters and (iv) a pervasive atmosphere of uncertainty and unpredictability to the detriment of the litigants.An imperative exists for a new casatory plenary session focused on precarious possession that, akin to the Fourth Plenary in 2013, enables the restoration of order and furnishes a measure of predictability and certainty, at least in the medium term.
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Razones por las cuales se debe preferir el régimen de contratos de Asociación Público Privada - APP a los Acuerdos de Gobierno a Gobierno - G2G en el Perú
(Pontificia Universidad Católica del Perú, 2023-08-16) Sheput Stucchi, Humberto
The success attained in the development of the essential infrastructure for the XVIII Pan American Games and the Sixth Parapan American Games of Lima 2019 has demonstrated a distinct shift in the approach embraced by the Peruvian State in the execution of infrastructure ventures. The utilization of public-private partnership contracts has been relinquished in favor of government-to-government agreements.Is the idea or alternative of prioritizing Government-to-Government agreements as the initial option the most suitable or advantageous for the Peruvian State? In this article, we will assess the benefits and drawbacks of both approaches and propose criteria to evaluate which scheme would be the most favorable depending on the nature of the project or infrastructure to be undertaken.
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Contratos Estándares Internacionales de Construcción: apuntes para una eventual regulación de estos modelos en la normativa de Contrataciones del Estado
(Pontificia Universidad Católica del Perú, 2023-08-16) Medina Flores, Juan Carlos
As a result of the exposition that Government-to-Govermnet contracts entered into by different Peruvian entities are acquiring, through which a foreign State has been providing specialized technical assistance to the Peruvian State for the execution of important infrastructure projects, such as the Pan American Games, the works of the Reconstruction with Changes, the Chinchero International Airport, the bicentennial schools; the Peruvian State has been seeking the implementation of the different tools used in the execution of these projects in the Peruvian Procurement regulations. Among these tools, one of the most famous in recent years is the international construction standard contracts.Thus, there are already national regulations that collect these contract models and make them available to certain entities to be used for the execution of infrastructure projects. Likewise, the latest government procurement bills (which have not been approved), show the government’s tendency to regulate international standard construction contracts for the execution of public works. In this article, I seek to explain what international standard construction contracts are, outline how they have been used in Peru and contribute to the discussion on the convenience of implementing these contractual models generally in public works and what elements should be considered for this purpose.