The same way as in intern legal disputes, the State makes available to the parties in international disputes tools that guarantee the effectiveness of the judgement, in order to avoid that the time of the process infringes their rights in an irreparable way. By this we mean international precautionary guardianship.
24 october 2019
Title: International Precautionary Measures in the Peruvian State Courts.
Author: Víctor Rogelio Sueiro Varhen
In Peru, the increasingly strong participation of Peruvian capital in international trade has had a significant effect on the increase of private international relations between natural and/or legal persons. As a consequence of this economic growth, the number of international litigations linked to international trade in Peru increased.
This Master’s Degree Final Project analyses the extraterritorial effectiveness of international precautionary measures issued by Peruvian and/or foreign courts in disputes of a commercial nature. Following a logic sequence of international judicial competence, the development of the international process and its recognition, execution of foreign decisions, this research project is structured in three chapters:
The first chapter is named “Preliminary Issues in International Trade Dispute Resolution and Guardianship in Peru”. In this chapter, the context of international trade in Peru is addressed, as well as the relevance of determining when the judge is faced with a private international relationship that justifies the application of rules proper to Private International Law. Next, the most relevant elements of the Private International Law applicable to this kind of legal disputes are addressed, as well as general aspects of the precautionary protection in Peru.
The second chapter entitled “Adoption of international precautionary measures” covers the international jurisdiction of Peruvian courts to know disputes arising from international trade and, subsequently, the jurisdiction of Peruvian courts to adopt international precautionary measures. This chapter analyses the main legal instruments in force from international sources, with special emphasis on the Inter-American Convention on the Execution of Precautionary Measures - CIDIP II of 1979.
The third chapter is called “Recognition and Execution of International Precautionary Measures”. It studies the effects of foreign judgments and decisions in Peru and, subsequently, the recognition and enforcement of international precautionary measures. For this, the inherent effects of the CIDIP II of 1979 are analysed as well as the domestic legislation.
On the basis of what has been studied in the three chapters abovementioned, an amendment to Peru’s domestic legislation is proposed in order to guarantee the adoption, recognition and enforcement of international precautionary measures in international disputes.
The Final Master’s Degree Project also features the conclusions at the end of each chapter, which, in this sense, the following shall be highlighted:
- Peruvian legislation from international and domestic sources on international precautionary protection is insufficient to guarantee the right to an effective international jurisdictional protection of the parties in Peru. Added to this, the implementation of the CIDIP II by the Peruvian courts is null and void.
- The most effective way to obtain international precautionary protection is through the adoption of precautionary measures with a view to extraterritoriality by the court where the protected persons or assets are located. This adoption allows the judge where the property is located to issue precautionary measures with greater security and speed, as opposed to a foreign judge.
