Deciding is not the same as enforcing: towards the arbitral enforcement of the award as the rule in Peru

Abstract

This article aims to determine whether, under Peruvian law, the enforcement of arbitral awards should continue to rest, as a rule, with the Judiciary, or whether it may be entrusted by default to the arbitral tribunal that rendered the award. The study covers awards rendered in arbitrations seated in Peru and distinguishes between disputes among private parties and those in which the losing party is a public entity. It follows a doctrinal-normative and documentary method, analysing Legislative Decree No. 1071, the case law of the Constitutional Court, the budgetary rules applicable to the State and the comparative regulation of Spain, France and Brazil, together with empirical information from secondary sources. It concludes that enforcement may indeed be entrusted by default to the arbitral forum; however, the arbitrators' lack of imperium justifies reserving judicial intervention for cases in which, in the arbitral tribunal's judgment, the use of public force is required, without transferring the entire enforcement stage to the courts. Accordingly, it proposes amending Article 67 of Legislative Decree No. 1071 so that, as a general rule and unless otherwise agreed by the parties, the arbitral tribunal enforces the award it rendered, through a sui generis procedure that respects the minimum guarantees of due process and the right of defence, including an adversarial stage prior to the issuance of the enforcement order. Where the supplementary intervention of the courts is required, the judge will not admit objections or appeals from the parties, following the model the Act already provides for interim measures. The article seeks to offer a concrete alternative to make the enforcement of arbitral awards more efficient, reaffirming arbitral jurisdiction and easing the burden on the ordinary courts.