A decision by the Peruvian Constitutional Court reaffirms Peru's commitment to arbitration as an effective means of dispute resolution, further consolidating a legal framework developed over the past two decades. The court examined the constitutional basis for arbitral jurisdiction and explicitly recognized the autonomy and independence of arbitral tribunals, holding that arbitral jurisdiction is an essential element of the Peruvian constitutional public order. Fernando Cantuarias Salaverry, Decision of the Peruvian Constitutional Court, February 28, 2006, EXP No. 6167-2005-PHC/TC, Part IV §1.
The petitioner, Mr. Cantuarias, was a member of an arbitral tribunal in a dispute between two private mining companies. He was challenged by one of the parties to the arbitration and later charged criminally for procedural fraud and related offenses in connection with his functions as arbitrator. Mr. Cantuarias filed a writ of habeas corpus that was ultimately rejected by the Constitutional Court. The court noted, however, that the criminal proceedings instituted against Mr. Cantuarias should not be used as an excuse to examine the underlying claim submitted to arbitration, over which the arbitral tribunal had jurisdiction.
The court also examined the role of arbitration in the Peruvian legal system and recognized that arbitration is an essential part of Peruvian constitutional order. Arbitration is expressly recognized by Article 139 of the 1993 Peruvian Constitution, and according to Article 63 of the Constitution, the Peruvian State and its legal entities are authorized to participate in arbitration proceedings. The court also upheld the authority of the arbitral tribunal by confirming the full applicability of the principle of kompetenz-kompetenz and the principle of non-interference.
The court sustained the independence of the arbitral tribunal, holding that control of arbitral decisions by judicial authorities should be exercised exclusively ex-post, through the appeal and annulment proceedings provided in the General Arbitration Law, enacted in January 1996 (Law No. 26572). The court observed that constitutional review of an award is not excluded but should be limited to determining arbitrators' potential disregard of constitutional jurisprudence or procedural guarantees.