Practical Guide to Contracts in Peru

When reviewing a contract in Peru, it is important for foreign technology and service providers to be aware of the civil laws applicable to them, and some of the relevant clauses to negotiate which could be different than say a common law country. This is particulary important in the mining and industrial sectors where the contracts can be large and with many moving parts.

We have provided some common guidelines that foriegn companies should know when entering into a contract in Peru, but bearing in mind that they may vary according to the types of contract being discussed, services offered, conditions, execution, term, among others.

General Rules

According to the article 1351° and following the Peruvian Civil Code (“PCC”), a contract is regulated as an agreement of two or more parties to create, regulate, modify or terminate a legal patrimonial relationship.

Specific Clauses and their Regulation in the PCC:

Liability and Damages:?The PCC regulate a system of civil liability for the non-performance of obligations (called contractual) and another system of extra-contractual civil liability (for violating the generic duty not to harm others). Regarding contractual responsibilities, the PCC regulates that the non-performance of the obligation can be due to slight fault of the debtor, fraud or inexcusable fault. In the first case, this type of responsibility is stated as a presumption. However, in relation to fraud and inexcusable fault, they have to be proved by the injured party for the non-performance of the obligation (art. 1330 of the PCC).

Ax Legal Practical Advice: As general advice, when negotiating a services contract, we try to limit responsibility to direct damages caused by a breach of an obligation. It is important to note that depending on the subject of the contract, it is important to also limit the extra contractual responsibility clause (if we find one) because, of the subjectivity of it.

Force Majeure or Fortuitous Event:?According to the definition set out in Article 1315° of the PCC:?“Fortuitous Event or Force majeure is a non-attributable cause, consisting of an extraordinary, irresistible, and unforeseeable event, which prevents performance of an obligation or determines its partial, late or defective performance.”

In general, the content of a force majeure clause or of a fortuitous event clause can be defined and regulated in the contract since the PCC permits it, but if no regulation is stated, then the standard 1315° article is applicable. So, depending on the interests of the parties and the specific circumstances surrounding the contract, it should be specifically regulated and would be respected as legally binding.

Ax Legal Practical Advice: This is an important aspect to be revised in a contract and then negotiated because in such event the counter party could be held not accountable for non-compliance of contract obligations. However, there is other obligations that can be imposed on the parties to diminish subsequent damages, such as notifying if one party will fail to comply, steps taken to minimize the effects, and a reasonable date as to which they will resume their activities.

Termination Clauses:?Regarding “exit clauses”, the PCC regulates in its article 1428° that if one of the parties is non-compliant and in breach of contract obligations, the other party will be entitled to compensation of damages, and/or, to ask for the fulfilment of the obligations, or for the termination of the contract. However, it is important to note that the PCC also regulates the possibility to terminate immediately the contract if the other party is in breach of contract obligations.

Ax Legal Practical Advice: This is a common provision in most contracts, and we therefore advise our clients, again, case by case, that apart from regulating a termination clause with a procedure, requirements and reasons to terminate it (such as a 30 days’ notice of the intent and specific date to terminate the contract, among others), it is important to have an exit clause of immediate effect.

Labour Obligations:?When hiring third party services, it is important to bear in mind that both companies will be have joint and severally liable for employment obligations of those third party workers if the contractor does not complies with its obligations. Furthermore, this responsibility can be extended to the principal if the company does not review the contractors authorizations, registries, and other labour documents.

Ax Legal Practical Advice:?In order to ensure that the hiring party will not be held liable, a common mechanism is to condition payment of services upon the issuing of a “Certificate of Compliance with Labour and Social Security Obligations”. Also a clause specifying that the company providing the services will incur and bear all costs and legal fees and that will respond for any breach in labour legislation.

Jurisdiction:?If any disputes arise between the parties out of or relating to the contract, or the interpretation or validity thereof, the parties can choose to indicate in this clause that the matter will be solved in the Peruvian courts or will be subject to arbitration.

Ax Legal Practical Advice:?We?recommend evaluating costs and deciding which jurisdiction to appoint. Although arbitrations can be quicker and more technical than courts, they are generally more expensive. In this sense, depending on the project and the investments being made, the decision must be taken.

Internal Dispute Resolution Proceedings:?In line with point “5” above, a clause to look at is the internal proceedings of dispute resolutions which often reduce the chances of resorting to courts or arbitration. In this sense, if the parties follow in good faith these contract proceedings, they should avoid the need to have judges, arbitrators, or even lawyers involved.

Ax Legal Practical Advice:?We recommend to state that if no agreement is fulfilled, then an exit clause of the agreement can be activated.

Confidentiality:?In regard to this point, due to characteristics and nature of the activities to be performed, parties can exchange sensible information. In this sense, it is important to regulate this type of clause in order to protect the exchange of information. This clause is supported by article 1558° of the PCC.

Ax Legal Practical Advice:?In this matter, we recommend to our clients to: state a term in which this obligation will be enforceable for the parties; ii) state some situations in which they will not be responsible for disclosing this information (e.g. when a court obliges to it).

Change in Contract Conditions:?There are times when unpredictable events may occur causing substantial changes in the conditions that may result in an obvious detriment to the other party.

Ax Legal Practical Advice: If the contract will be over an extended period of time, it is recommended that a clause be included indicating that if such event occurs, both parties will need to renegotiate the terms and conditions of the contract.

Conclusion - Ax Legal Process for Reviewing Contracts

It is important for international companies to understand how contracts and specific clauses are dealt with in each country they are operating in.?For many clients who are new the region, we look at contracts as a teaching opportunity and also a chance for the Ax Legal to learn more about our clients services or products.

We generaly use the following process for reviewing contracts with our clients -

1. We work with each client to ensure that we understand the services or goods that will be provided as part of the contract.
2. We will review any internal policies that a client may have and then create a worksheet which outlines any “non-negotiables”, alternative clauses, and/or other details that are important when reviewing.
3. We will review the contract and provide comments and recommendations. In many cases, we will use the worksheet in order to streamline the process.
4. Our team can provide a legal translations of the contract, explanations of legal concepts that may be unique to the region, and/ or provide a summary and sign off for your Board of Directors.

Ax Legal is an advisory firm that works with foreign companies in Latin America. Our team of legal and commercial advisors have a distinguished track record of helping foreign technology and services companies to grow and operate in Latin America. Over the years, we have worked with starts up, mid-size businesses, and publicly listed companies. The one common factor that connects our clients is that they are leaders in their field, providing innovative technologies and services to the industrial sectors.

To better understand how we can support you in the Region, please contact Cody Mcfarlane at [email protected]