José Daniel Amado is a founding partner of Miranda & Amado, one of the most important law firms in Peru. He is former Secretary-General of the Presidency of the Peruvian Council of Ministers, and Chief of Advisors to the Prime Minister (2001-2002) and has participated in some of the most relevant transactions in Peru in the last two decades, as well as in some of the most important disputes related to Peru. His professional activity in international arbitration is well recognized nationally and abroad.
Leaders League. What are the main goals of the institute?
Jose Daniel Amado. IPA aims to be an institution devoted to arbitration and its promotion in Peru and elsewhere in the region. It was founded under the leadership of Jorge Santistevan, other key individuals are Delia Revoredo and, for the last ten years, Carlos Soto. IPA has achieved great work in promoting arbitration, co-organizing several events in countries such as Bolivia, Brazil, Costa Rica and El Salvador. Our institution has repeatedly collaborated with the Spanish Club of Arbitration on various projects. The institute organizes several conferences dealing with arbitration, and the annual Latin American conference which takes place in April in Lima is probably one of the most important yearly arbitral events in the region. Another important conference is dedicated to judges and arbitrators, where we try to share best practices in arbitration with judges so they can be more prepared and ready to address arbitral issues. Another event that is quite important is dedicated to investment arbitration as there is no other similar gathering on this particular topic in the region. The institution has published several books and will soon be re-launching a magazine “Revista Peruana de Arbitraje” edited by Alfredo Bullard and myself. IPA’s biggest accomplishment is getting people to understand the advantages of arbitration and that it is an autocompositive method that works all around the world and not only where judicial courts do not work.
Leaders League. Is Peru an arbitration friendly country?
J.D.A. Yes, Peru is an arbitration friendly jurisdiction. The case of Peru is quite particular as we have some arbitration that is mandatory such as when you contract with the state for the procurement of goods and services. This practice of having arbitration mandated by law in state cases, means that arbitration is growing and with it the number of experts in arbitration, which is very good for the local arbitration market. The subject of arbitration is improving. The constitutional tribunal established a precedent in the Cantuarias Salaverry case and the Maria Julia Mine case, which together solved the problem of constitutional challenges against awards. Previously the judiciary had intervened in arbitration cases, and the constitutional tribunal had ruled they could do so in defense of constitutional rights. Fortunately, with these rulings the problem has been resolved and it is clear courts can no longer interfere in on-going cases through constitutional procedures. Another trend that we’ve seen abroad for several years now and that I’ve been noticing in Peru for the past two years is the practice of electing foreign arbitrators. The community of arbitrators in Peru is relatively small and arbitrators that exclusively arbitrate or arbitrate and teach are very few. That’s why naming a foreign arbitrator could be a good solution to avoid conflicts of interest and find truly independent arbitrators for major or sensitive cases. This trend is still growing. Also, there are foreign arbitrators on the list of the most important local arbitration centers.
Leaders League. As you mentioned, Peru was one of the first countries to establish mandatory arbitration in specific cases. What do you think about this?
J.D.A. We are very proud to be one of the first countries moving in that direction, but that was done more than 15 years ago and we should adapt and modify the system in order to combat some bad practices. The state, under the principle of subsidiarity, should fulfill its supervision role. At the moment, the supervising organism has an arbitration center and from my point of view this is unconstitutional. It is like creating another adjudication system but for cases where the state already decided they should be solved by arbitration. We already have solid local arbitration centers and they should also administer this kind of arbitration and the OSCE, the state agency in charge of supervising the contracts with the state, should refocus on its main mission: supervising arbitration centers and promoting transparency in state arbitration. In that sense, the Presidential Integrity Commission pointed out two problems and made recommendations linked with that kind of arbitration. First, the state should not have an arbitration center for its use but should concentrate its efforts on creating an ethics committee that is in the law and today doesn’t yet exist. It would help transparency in an arbitration where the state is a party and this committee should monitor the work of accredited arbitration centers, make sure that awards are published and classified as the law requires, which now does not happen. The second recommendation is to create a public prosecutor department specializing in arbitration that should actively monitor and advise all state prosecutors who participate in arbitrations to ensure the best defense of the interests of the state.In my opinion, the implementation of these two recommendations will be very helpful to promote better practices in state procurement arbitration.
Leaders League. The Lima Chamber of Commerce’s Arbitration Centre has just approved its revised rules. What are some of the most important changes?
J.D.A. I have had the privilege of participating over the past two years as part of the task force that worked on those modifications. What we did was basically observe how things worked in Peru and abroad and gather best practices from around the world, at least the ones adaptable to Peru. The arbitrators’ confirmation process is one of the important new rules. We have made it possible for the superior council of the center to confirm the nomination of the arbitrators. It will avoid parties nominating people that should not be named in the panel as arbitrators. The supreme council still has an important ethical role too. We’ve tried to be much more expedient in some aspects, such as the first hearing where procedural rules are established. There’s no longer a first hearing just for setting up the tribunal. I think that, at process level, it has made a real improvement. But one of the most important new changes relates to digital issues, the possibility of notifying digitally, having virtual hearings, virtual deliberations, arbitrators communicating by email. To mention one last modification, we now have the possibility of appointing an emergency arbitrator. This institution is important because an emergency arbitrator will act much more quickly than almost any judiciary in the world and in some complex situations could be essential in giving protective measures. The Lima Chamber of Commerce’s Arbitration Centre manages around 80% of institutional arbitrations in Peru so we expect all these modifications will inspire other local arbitral institutions to modernize and apply the international best practices we’ve gathered in order to have better and more arbitrations seated in Peru.