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Al calor de un disenso
(Pontificia Universidad Católica del Perú, 2020-12-21) Berckemeyer Olaechea, Fernando
Dissent in arbitration is often not well-regarded. It is argued that dissenting votes debilitate the authority of the awards and thus that of arbitration since they only promote the career, or vent the ego, of the arbitrator who did not convince the majority. In this paper, the author, contrary to the prevailing opinion, defends the convenience of the dissenting vote as an element which –even when it remains as a slight possibility– serves to the proper functioning of the tribunal as a “mind-of-three”.Consequently, the paper relativizes the data generally used to argue against dissent in arbitration, assesses the different types of dissenting votes and challenges the standards by which the current state of thinking holds this mechanism should be limited and monitored. Instead, the author proposes a system in which “each dissenting vote is the best judge of itself” and where there are only ex post and market dissent controls.
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El Aporte por Regulación a favor del OEFA bajo la lupa: ¿transgresión al principio de no confiscatoriedad?
(Pontificia Universidad Católica del Perú, 2020-12-21) Rodrigo Rohrhirsch, Lucía
One of the principles that limit the State’s taxing power is the principle of non-confiscation. In 2019, the Constitutional Court analyzed the scope of the aforementioned principle in a judgment that dismissed a constitutional action filed by a mining company that requested the non- application of Supreme Decree No. 130-2013-PCM, for breaching the principles of non-confiscation, legality and matter for loi. In this paper, the author analyses whether the Regulation Contribution in favor of the OEFA violates the principle of non-confiscation and for this purpose, she explains the types of taxes that are regulated in the Peruvian legal system and which is the legal treatment that has been established for each type. In addition, she briefly makes some comments with regard to the Constitutional Court’s judgment.
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Una aproximación a los convenios arbitrales asimétricos: intuiciones sobre su tratamiento legal en el Perú
(Pontificia Universidad Católica del Perú, 2020-12-21) Dannon Alva, Augusto
In this paper, the author explores the discussion surrounding the validity of asymmetric arbitration agreements and examines the bases for their treatment in Peru. In several jurisdictions, these agreements are considered as an expression of the contractual freedom of the parties that allows them to design the means to solve their controversies. However, others prohibit it as it poses one of the parties in a disadvantageous situation. Faced with this dilemma, the author seeks to determine the compatibility of these agreements with the Peruvian legal system through the study of various issues emerged around them: consent, inevitability, equality, voidance, pathology, among others.The author seeks to reach an intuitive answer about the validity of asymmetric arbitration agreements, based on the scarce Peruvian legal dispositions, the foundations of arbitration and arbitration agreements and the arguments discussed both in favor and against by compared doctrine and jurisprudence.
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Apuntes respecto de la validez de los acuerdos procesales que condicionan el acceso a la anulación de laudo a la constitución de una garantía en el ordenamiento jurídico peruano
(Pontificia Universidad Católica del Perú, 2020-12-21) Campos García, Héctor
In the Peruvian legal system, the parties may conclude procedural agreements that condition the access to challenge of the arbitral award to the constitution of a guarantee. These procedural agreements do not violate legislative or constitutional provisions in force. Additionally, they have an express legislative recognition in the Peruvian Arbitration rules. However, procedural agreements have specific limits which, if violated, generate the nullity of said agreements.In this article, the author assesses whether individuals can establish an agreement that makes access to the setting aside of the arbitral award conditional on the provision of security. In this regard he presents, in a critical manner, the main positions that have been raised for and against towards this area in order to demonstrate his initial hypothesis.
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Arbitraje comercial internacional y tutela cautelar: colaboración entre jueces y árbitros en la adopción y reconocimiento de medidas cautelares internacionales
(Pontificia Universidad Católica del Perú, 2020-12-21) Sueiro Varhen, Víctor Rogelio
When referring to international commercial arbitration in Peru, two questions that have received little doctrinary reflection arise. These are, on one hand, the possibility that a Peruvian court may adopt a precautionary measure in assistance of a commercial arbitration based abroad and, on the other hand, the possibility of recognition by the Peruvian courts of a precautionary measure issued in the context of a commercial arbitration based abroad. They constitute the two sides of the same legal problem to which the author aims to reply by proposing a solution through a solid argumentative development. In this article, the author’s analysis departs from the importance of the right to effective international judicial protection, emphasizing on international precautionary protection. Moreover, he reflects on the duty of cooperation of the state courts in order to safeguard the effectiveness of precautionary protection in international commercial arbitration. At last, the author proposes certain criteria or parameters that would come in useful for the Peruvian state courts in order to adopt and recognize precautionary measures in support of international commercial arbitration when based abroad.
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Arbitraje para conflictos ambientales: una aproximación desde los Derechos Humanos
(Pontificia Universidad Católica del Perú, 2020-12-21) de Luis García, Elena
In the clash between business activity and environmental protection, damages could occur to disposable rights. Under a human rights approach, arbitration may play a key role as a mechanism that can reduce barriers of access to justice for victims of these conflicts and achieve fair reparation for them.The aim of this article is to examine what elements should establish an adequate arbitrability system for repairing damages produced as a consequence of environmental dispute. For this purpose, the author focuses on the recently approved Hague Rules on Business and Human Rights Arbitration and analyzes the main challenges in this field. In this regard, she highlights the importance of addressing underlying issues such as transparency and access to information, the need of qualified arbitrators, the possibility of third-party intervention and class action prevention.
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Arbitraje y terceros legitimados en la impugnación de acuerdos societarios en el Perú
(Pontificia Universidad Católica del Perú, 2020-12-21) O’Neill de la Fuente, Cecilia; del Pino Yupari, Melissa
In recent years, several national laws have become more favorable to corporate arbitration, which has contributed to its important development. In this context, the arbitrability of the challenge of corporate agreements is widely accepted. However, the intervention of legitimate third parties has resurfaced alleged deficiencies of corporate arbitration.In this article, the authors analyze the topic of legitimate third parties and the solutions proposed in comparative law. They aim to analyze the suitability of those possible solutions with the Peruvian legislation on arbitration and corporations.
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Árbitro de emergencia: el refuerzo de la tutela cautelar (ante causam) en el arbitraje institucional
(Pontificia Universidad Católica del Perú, 2020-12-21) Blanco García, Ana Isabel
This article seeks to highlight the work that arbitral institutions are undertaking to guarantee comprehensive arbitration protection, highlighting the adoption of interim measures, including the so-called ante causam interim measures. These measures, as their name suggests, are requested even before the claim is filed, when there is no arbitral tribunal, since it has not yet been formally constituted. The figure of the emergency arbitrator arises to deal with this need, avoiding that the decision on this type of measures is left in the hands of the jurisdictional bodies, mainly because of the difficulties that could arise from the determination of jurisdiction in international arbitrations.
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Bear Creek contra Perú y la legalidad de la inversión como requisito (implícito) para el ejercicio de jurisdicción por parte de tribunales arbitrales de inversión
(Pontificia Universidad Católica del Perú, 2020-12-21) Talavera Cano, Andrés
Concerns about inconsistency in the application of standards in arbitral awards are strongly present in investment treaty arbitration. In particular, tribunals can regularly exercise a varying scope of jurisdiction when they determine the legality requirement that demands foreign investments to be made in accordance with the law of the host state.In this paper, the author seeks to analyze the decision rendered by the tribunal in Bear Creek v. Peru, in which the Canadian mining company alleged that the Peruvian State breach, inter alia, expropriation protections under the Canada-Peru Free Trade Agreement in relation to its investment in the silver mining project of Santa Ana. In order to achieve this aim, in the first chapter, he addresses three key issues regarding the tribunal’s jurisdiction, the rights on which the company based its claim and the arguably prerequisite of legality or good faith for the tribunal’s exercise of jurisdiction. In the second chapter, he analyzes the validity of the tribunal’s interpretation on the legality requirement for investment as an implicit element in the relevant treaty to determine the tribunal’s jurisdiction.
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Ciberseguridad y arbitraje internacional: el Protocolo de Ciberseguridad en Arbitraje Internacional del ICCA, el NYC Bar y el CPR (Edición 2020)
(Pontificia Universidad Católica del Perú, 2020-12-21) Fernández-Samaniego, Javier; Hierro Viéitez, Gonzalo; Araque Moreno, Yaiza
The Protocol on Cybersecurity in International Arbitration constitutes an innovative proposal providing a rigorous approach aimed towards raising awareness on cybersecurity risks in arbitration for its participants. Likewise, it seeks to be a guide to which the parties and arbitrators can recur in order to determine which cybersecurity measures can reasonably be adopted. The Protocol is a soft-law instrument that acknowledges cybersecurity measures may vary for each particular case.In this article, the authors evaluate the innovations proposed in the Protocol’s 2020 edition. Thus, they address its evolution, reviewing the newest types of cyber threats, previous regulatory efforts and, in greater detail, the principles and schedules proposed in this document. Finally, the authors also reflect on the opportunities that the Protocol provides in a global emergency situation due to the COVID-19 pandemic.
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El consentimiento implícito desde la jurisprudencia arbitral: comentarios a la primera sección del artículo 14 de la Ley de Arbitraje y algunas consideraciones vinculadas
(Pontificia Universidad Católica del Perú, 2020-12-21) Alvarado Giraldo, Jorge; Olórtegui Huamán, Julio
The first scenario of article 14 of Legislative Decree 1071 positivizes the theory of the incorporation of non-signatory parties, know internationally as “implicit consent” theory. Although more than twelve years have elapsed since its publication, article 14 has remained disregarded by local pronouncements thus far from the arbitration or judicial levels that could provide us with more elements regarding its application in specific cases. This article aims to identify the way in which international arbitration tribunals have applied the implicit consent theory to determine what type of conducts throughout the contractual iter have justified the incorporation of a non-signatory to the arbitration. Moreover, the authors seek to provide answers to some questions of substantive and procedural nature: Is the non-signatory jointly and severally liable? How does the incorporation of a non-signatory remain consistent with their right to participate in the constitution of the arbitral tribunal? When should the incorporation of a non-signatory be decided?
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La contribución de las reglas de Praga a la promoción de la eficiencia en el arbitraje internacional
(Pontificia Universidad Católica del Perú, 2020-12-21) Stephens-Chu, Gisèle; Teynier, Camille
The Prague Rules are intended to provide efficiency and reduce costs in conducting arbitration proceedings. The Rules are based on the position that the practice and procedure of international arbitration is too heavily influenced by the adversarial system found in common law jurisdictions, and that the inquisitorial judicial practices of civil law jurisdictions are more conducive to a “streamlined procedure”. In this paper, the authors first consider whether this predicate is accurate and fair. Are adversarial practices the source of inefficiency in international arbitration, or can the reasons be found elsewhere? Next, they compare certain features of the Prague Rules to the IBA Rules on the Taking of Evidence, and examine how both sets of rules differ in substance. Moreover, they address the criticisms that the Prague Rules may pose yet another case of useless rule-making. In fact, the authors critically assess the consequences of an active role of arbitral tribunals in case management and the appropriateness of a controlled use of documentary production, witness evidence (particularly in oral testimony) and appointment of experts.
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Corrupción en arbitraje internacional de inversiones: ¿es un peligro o un salvavidas para países en desarrollo?
(Pontificia Universidad Católica del Perú, 2020-12-21) Alvarez Calderón Campos, Andrés
In recent years, corruption allegations in investment arbitration have increased considerably. When raised by the States, said allegations are intended to pursue the dismissal of the claims due to lack of jurisdiction of the arbitral tribunals, based on the existence of corruption throughout the investment. Nevertheless, there is no consensus in the criteria used by tribunals, given that the involvement of the State in the corrupt acts may play a significant role in the decision. In this article, the author discusses the main defense arguments used by States when alleging the existence of corruption and presents the various criteria applied by investment tribunals to deal with such allegations. In addition, the author proposes a test that tribunals may apply to decide on the effect these allegations have on the arbitration proceedings.
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La determinación de los honorarios arbitrales
(Pontificia Universidad Católica del Perú, 2020-12-21) Franco Arias, Billy
Arbitral fees are not a frequent topic of conversation among people involved in arbitration. Likewise, by connoting a more commercial than legal aspect and implying economic remuneration for a dispute resolution service, it could even be uncomfortable. Despite this, it is necessary to reflect on the proper understanding of the rules used in the ordinary course of the professional practice of arbitration; that is, the regime of arbitration fees.In this article, the author makes a synthetic review of the arbitration fee regime, supporting both on the theory and the experience of arbitration institutions and legislations, in order to put into perspective, the different options that institutions and national arbitration laws have taken on this matter.
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La doble nacionalidad de personas naturales en el arbitraje de inversiones de Venezuela
(Pontificia Universidad Católica del Perú, 2020-12-21) Anzola, J. Eloy
An IPPA is a bilateral agreement for the promotion and protection of investments made by a person from one of the signatory states in the area of the other contracting state. Among the provisions of this treaty, compensation clauses are usually agreed upon the event that an expropriation dispute arises between an overseas investor and the host state. In this regard, it is mandatory that the investor be a natural person of one the parties to be compensated for any loss or damage suffered in relation to his covered investments.Then, the key question remains as to whether this bilateral agreement should also protect binational investors. Moreover, it might be well asked whether the international jurisprudence is uniform when an expropriation dispute arises. In this paper, the author analyzes the enforcement of a number of IPPAs signed by Venezuela, as well as the evolution of the criteria adopted by arbitral tribunals and courts. For this purpose, he first examines three recent claims against this State to highlight how the debate on the nature of the IPPA under international law has evolved, then he assesses the alleged lack of jurisdiction of the courts to rule in this matter and, at last, the nature of the investor and his dominant nationality.
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Elección de la ley aplicable en el arbitraje latinoamericano: evidencia empírica y reflexiones sobre el mercado de contratos en Latinoamérica
(Pontificia Universidad Católica del Perú, 2020-12-21) Cuniberti, Gilles; José Segovia González, Manuel José
The aim of this Article is to assess the preferences of parties to Latin American international business transactions when they choose the law governing their contracts. For that purpose, the authors have conducted an empirical analysis of data that they were able to gather from arbitral institutions active in Latin America, with a focus on years 2011 and 2012. Furthermore they offer some reflections on the results and elaborate on whether they can be explained by the territorial approach of choice of law in Latin America, the importance of the United States as a trading partner for Latin American countries and the extent to which Anglo-American lawyers are present on Latin American markets.
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¿Existe un levantamiento del velo jurisdiccional?: el levantamiento del velo societario como extensión del convenio arbitral y como remedio de fondo
(Pontificia Universidad Católica del Perú, 2020-12-21) Quintanilla Gutiérrez, Alejandra
In arbitration matters, one of the cases in which the effects of the arbitration agreement can be extended to a non-signatory party is through the piercing of corporate veil doctrine. The doctrine justifies the existence of such theory in order to include into the arbitration process parent or related companies that use subsidiaries as a shell to commit abuses and defraud their creditors. Moreover, corporate doctrine, no matter the jurisdictional system, establishes that the piercing of corporate veil is a remedy that applies only when the defensive separation of assets is broken and liability is assigned to a parent o related company.In this article, the author exposes the confusion related to arbitration matters in the application of the piercing of the corporate veil as a non-signatory doctrine and as a substantial remedy. Thus, it proposes a harmonization of the figure, in order to stablish a comprehensive application.
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Gestión de los bienes propios en la sociedad de gananciales: una visión crítica
(Pontificia Universidad Católica del Perú, 2020-12-21) Santillán Santa Cruz, Romina
Community of property is a regime of relative community. It is legally configured by the existence of the common property of the spouses, although each spouse could retain the personal property. Thus, complicated legal situations may arise as a result of the management of such property. The management of the personal property is chaired by the rule of spouses’ freedom of action. For this motive, there are no explicit limits to the Administration and disposal of that property. However, this does not imply there are no limits to their actions.In this article, the author seeks to point on the study of the legal restrictions and implicit limits that would be applicable to the management of the personal property in the community of property in the Peruvian legal framework. She also analyses the concept of unilateral unrenounceability of acts of liberality because it appears to be the only exception to the rule of freedom of action.
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El gran dilema: el problema de las cláusulas escalonadas en el Perú
(Pontificia Universidad Católica del Perú, 2020-12-21) Yano Tsuha, Nicolás Daichi; Serván Eyzaguirre, Nicolás Jorge
Multi-tiered arbitration clauses encourage the parties to adopt agreements to resolve their disputes, allowing them to avoid litigation, the deterioration of their commercial relations and the costs of arbitration. The advantages they provide have established them as a common agreement in practice. In this paper, the authors analyze the effect of existing contradictory rulings on the binding nature of these agreements, given the opposite positions of the Peruvian Constitutional Court and the Superior Court of Justice. Taking into account the legal nature of arbitration recognized in Peru, the authors propose that when an arbitral tribunal is faced with a breach of these clauses, it should refer the parties to comply with the terms of their agreement, as soon as the first opportunity after hearing the parties.
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Importando paraguas: las cláusulas de nación más favorecida y cláusulas paraguas en el arbitraje de inversión
(Pontificia Universidad Católica del Perú, 2020-12-21) de la Flor Puccinelli, Nicolás; Quiroz Arellano, Matias
International Investment Law nowadays is characterized by fragmentation. This is mainly due to the different protection standards that States grant to foreign investors, as well as arbitration decisions in this regard. Although each protection standard must be analyzed in each specific case, international doctrine and Tribunals have recognized the existence of certain classic protection standards such as the Most-Favored-Nation Clauses or the so-called Umbrella Clauses. In this article, the authors seek to analyze the way in which these two protection standards usually operate and the possibility of invoking the benefits of the Umbrella Clause through the application of the Most-Favored-Nation Clause, according to what has been resolved by the international jurisprudence on the matter.