The applicable law for recognition and enforcement of an arbitral award in Peru is Legislative “Decree N° 1071, Legislative Decree that governs arbitration in Peru” (hereinafter “Arbitration Act”). This is the arbitration law in Peru which entered into force on 1 September 2008.

There are two (2) sections that are relevant as regards recognition and enforcement of an arbitral award:

• Title VI – “Annulment and Enforcement of the Award” (articles 62 – 68), where article 68 is the pivotal rule that provides for the enforcement of domestic awards (as well as already duly recognized foreign awards) before Peruvian state courts.

• Title VIII – “Recognition and Enforcement of Foreign Awards” (articles 74 – 78), which lays down the rules for recognition and enforcement of awards that were not rendered in Peruvian territory. It is worth highlighting the express reference in Article 74 to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (hereinafter “New York Convention”), as well the Inter-American Convention on International Commercial Arbitration (Panama City, 30 January 1975. It is noteworthy that this section cross-refers the enforcement of foreign awards (after they are recognized) back to the previous Title VI. This means that, essentially, only the recognition of foreign awards is governed by Title VIII, while the subsequent enforcement is governed by Title VI.

Even though the Arbitration Act prevails over all other rules, the Peruvian Code of Civil Procedure (Ministerial Resolution N° 10-93-JUS, 2 August 1993) (hereinafter “CCP”) also contains some rules that may apply in this matter, as set out in the Tenth Transitory Provision of the Arbitration Act. Accordingly, the provisions regarding the enforcement of judgements (Articles 713 – 719 of the CCP) could in certain circumstances be relevant.

Yes, Peru is a contracting state to the New York Convention. The date of its accession was on 7 July 1988 (Legislative Resolution N° 24810 of 24 May 1988). The date of its entry into force is 5 October 1988 (https://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=11&menu=835&opac_view=-1).

Peru did not make any reservation under Article I (3) of the New York Convention.

As for the enforcement of domestic awards, the primary rule is that the judge subspecialized in commercial matters will have jurisdiction. Since certain regions in Peru do not have judges subspecialized in commercial matters, as a fallback either the civil judge of the place of arbitration or the civil judge at the place where the relevant assets are located has jurisdiction (pursuant to Article 8 lit. 3 of the Arbitration Act).

As for foreign awards, they must first be recognized before being enforced, which leads to two separate sub-steps before the state courts. First, they must be recognized. The main rule here is that the civil chamber subspecialized in commercial matters will have jurisdiction. Again, since not every region has judges subspecialized in commercial matters, as a fallback the following will have jurisdiction:

• The civil chamber of the Superior Court of Justice at the domicile of the award-debtor; or
• If the award-debtor does not reside within Peruvian territory, the civil chamber of the place where the award-debtor has assets or where it exercises its rights (Article 8 literal 5 of the Arbitration Act).

Then, in a second step, once recognized, foreign awards will be enforced. The main rule here again is that the judge subspecialized in commercial matters will have jurisdiction. Failing the aforementioned, the following fallback authorities will have jurisdiction:

• The civil judge at the domicile of the award-debtor; or
• If the award-debtor does not reside within Peruvian territory, the civil judge of the place where the award-debtor has assets or where it exercises its rights (Article 8 literal 6 of the Arbitration Act).

As for the enforcement of domestic awards, the award-creditor must submit an enforcement request before the competent judicial authority and must enclose a copy of the award (and a copy of, e.g., possible rectifications, interpretations of the award or other decisions rendered by the tribunal which could be relevant for enforcement).

As for foreign awards, the award-creditor must initiate the recognition proceeding by submitting a recognition request before the competent judicial authority, enclosing the original or a copy of the award.

After recognition, the enforcement proceeding must be initiated, and the rules related to the judicial enforcement of domestic awards will apply analogously. As previously stated, the interested party must submit an enforcement request before the competent judicial authority.

No, the applicant does not need to identify assets within Peruvian territory.

For the recognition of a foreign award, the applicant must pay a flat court fee of 198 Soles (49.5 Euros, approximately).

For the enforcement of any award (domestic or foreign), the applicant must pay a court fee which will be determined by the amount in dispute. There is a scale of eight court fees applicable for enforcement proceedings. The higher the amount of dispute, the higher the court fee will be, in accordance with the rates detailed by the Administrative Resolution Nº 000474-2022-CE-PJ. This set of rules provides for the court’s fees for each proceeding before Peruvian state courts (including enforcement of domestic and foreign awards), and are updated at the beginning of every year. Currently, the maximum court fee is around 167 Euros and applies in disputes with an amount of more than 1’485,000 Soles (which is more than 372,000 Euros).

The Arbitration Act does not regulate the allocation of costs expressly. However, the CCP complements that vacuum by setting out that the costs have to be paid by the losing party (Articles 410 – 419 of the CCP).

The proceedings for the recognition and enforcement of arbitral awards are adversarial:

In the recognition proceeding, the award-debtor will be notified about the request and will have a time limit to respond to it. Also, an oral hearing will be scheduled before the judicial authority issues a decision.

In the enforcement proceeding of either domestic or foreign awards, after the judicial authority receives the request – and after checking that it meets the formal requirements – it will render a court order compelling the award-debtor to comply with the obligations set out in the award (within a time period of 5 days). However, within this time limit, the award-debtor can submit exceptional objections by, for instance, raising the defense that it has already complied with its obligations arising from the award.

As for the recognition of foreign awards, the applicant shall submit – together with the recognition request – the original or copy of the award, in accordance with Article 76 of the Arbitration Act. There is no legal requirement for the submission of the original arbitration agreement.

Yes, Article 9 of the Arbitration Act provides that if the documents are not in Spanish (the official language in Peru), the applicant shall enclose a simple translation. However, the judicial authority can require an official translation within a reasonable period of time, depending on the circumstances of the case. An official translation means a translation prepared by a sworn public translator or a certified translator.

Yes, the applicant must be legally represented by a lawyer from the Peruvian jurisdiction, which means he/she will need to be registered with the Bar Association of his/her district in Peru (Article 80 of the CCP and Article 288 Organic Law of the Judicial Power – Supreme Decree N° 017-93-JUS).

Under the CCP and the Organic Law of the Judicial Power – Supreme Decree N° 017-93-JUS, service of extrajudicial documents takes effect when they are received by courier at the domicile of the relevant party.

Service of judicial documents takes effect when they are received by courier at the address indicated for service in the proceeding (procedural address).

Service to a party outside the Peruvian jurisdiction must be effected by letters rogatory by a Peruvian consul.

Domestic awards are directly enforced within the procedure set out in the Arbitration Act. They do not require prior recognition proceedings. This is the main difference in comparison to the recognition and enforcement of foreign awards, which first need to be recognized in a separate procedure.

Yes, they do. Article 6 of the Arbitration Act provides that a partial award can be enforced to the extent that it resolves the dispute (or parts of it) in a definitive manner.

The only grounds for refusal of enforcement of a domestic award are:

• The award-debtor proves that it already complied with its obligation set out in the award; or
• The award-debtor demonstrates that the enforcement of the award has been suspended given that it offered a guarantee alongside an application for setting aside the award.

As for the grounds applicable to foreign awards, they are different depending on whether the foreign award is subject to the New York Convention or not. If the New York Convention applies, the grounds based on which a foreign award may be refused recognition and enforcement are laid down in Article V and will apply directly.

Foreign awards that are not governed by the New York Convention (or any other treaty) may be refused recognition and enforcement in case of the following grounds provided in Article 75 of the Arbitration Act:

• One of the parties to the arbitration agreement was affected by some incapacity, or the agreement is not valid according to the law that governs it or the law of the country in which the award was made (literal a)
• The party against which the award is invoked has not been duly notified about the appointment of an arbitrator or the arbitration proceedings, or has been unable for any other reason to assert its rights (literal b)
• The award deals with a matter not provided for in the arbitration agreement or contains decisions that exceed its terms (literal c)
• The composition of the arbitral tribunal or the arbitration procedure do not comply with the agreement between the parties, or in the absence of such agreement, do not comply with the law of the country where the arbitration was carried out (literal d)
• The award is not yet binding on the parties or has been annulled or suspended by a competent judicial authority of the country in which, or under whose law, the award was rendered (literal e)

There is no statutory definition of “public policy” in Peruvian legislation. However, there is general consensus that the public policy defense should be construed narrowly. Legal doctrine considers those rules that any democratic State should recognize such as ius cogens in the international community, human rights, and fundamental rights under the legal system as composing public policy (see, e.g., Revoredo, Delia. „Comments to the Peruvian Arbitration Act“, Carlos Soto and Alfredo Bullard (Coordinators), Volume II, (2011) p. 193-194). This has also been recognized by the Constitutional Court (see Judgement with File N° 1230-2002-HC/TC).

No, it is not immediately enforceable. Upon recognition of a foreign award, the award-creditor must apply for the enforcement proceeding. Domestic awards, in turn, do not require recognition as set out above.

There are no explicit remedies in the Arbitration Act for challenging a decision recognizing an arbitral award. Nonetheless, the interested party may decide to appeal that decision before the Supreme Court in a deadline of 3 days from the day the decision is served in accordance with the Article 376 of the CCP (which is a rule for appeal of judgements). However, this intent may be at least controversial because it will contradict the rule by which the Arbitration Act -as the special law- must be prevalent over all other rules (Tenth Transitory Provision of the Arbitration Act).

According to Article 76 of the Arbitration Act, the applicant can submit a Cassation Appeal before the Supreme Court as the only procedural remedy against a decision denying the recognition of a foreign award. The deadline for the submission of this remedy is ten days from the day the decision was served, according to Article 387 of the CCP.

There are no statutory rules that provide for set-off claims in enforcement proceedings under Peruvian legislation. Therefore, the answer to this question is not entirely clear and any possible set-off claim would likely be assessed by the competent court on a case-by-case basis.

As regards the first question, Peruvian courts can exercise discretion and enforce a foreign award even though it has been set aside (fully or partly) at the seat of the arbitration. The Arbitration Act mirrors the New York Convention (Article V, “may”) in this respect.

As regards the second question, a decision recognizing a foreign award which is afterwards set aside can be challenged by the interested party by submitting an appeal before the Superior Court under the general rules of civil procedure.

It is noteworthy that in case no treaty (such as the New York Convention) applies, the default rule in the Arbitration Act provides it is not possible to obtain recognition of an award that has been annulled or suspended by a competent judicial authority of the country in which, or under the law of which, the award was rendered.

Yes, Peruvian legislation sets out a catalogue of interim measures in the CCP that can be considered in support of the enforcement of awards. Some of them are injunctions, attachments under retention mode of assets (for instance, withholding rental payments owed to award-debtor), attachments in the form of registration (for instance, notes in the registry of movable and immovable properties), attachments of electronic means, extension of the attachments, or measures to freeze the award-debtor’s account.

Neither the Arbitration Act nor the CCP contain any express rules regarding security for costs, therefore there are no specific circumstances that are foreseen statutorily. Nonetheless, the court could grant security for costs if duly requested as a procedural measure and if the request is substantiated. This would likely be decided on a case-by-case basis, for example, if the counterparty appears to be insolvent. The legal basis would be Article 608 of the CCP, which provides for the general powers of the courts to grant measures to safeguard the effect of final court decisions.