秘鲁营商指南.pdf

Doing business in Peru2022 EditionMay 2022.Cuatrecasas.All rights reserved.Doing business in Peru2022 EditionThese guidelines present some key issues for foreign investors interested in investing in Peru.They are not intended as detailed guidelines but simply to address practical issues to help investors planning to start investment projects in Peru.They include legal issues that may require advice.They must not be considered a thorough analysis of Peruvian law or interpreted as legal advice from Cuatrecasas.These guidelines were drafted based on the information available on April 30,2022.Cuatrecasas has no obligation and assumes no liability with regard to updating this information.All rights reserved.Copying or distributing this document by any means withou prior written authorization from Cuatrecasas is prohibited.45Contents1.Corporate 91.1.Restrictions on foreign investment 91.2.Stability agreements 91.3.Company types in Peru 102.Tax 152.1.Income tax 152.2.Capital gains 152.3.Personal income tax 162.4.Non-resident income tax 172.5.General sales tax 172.6.Transfer pricing 182.7.Double taxation agreements 182.8.Other taxes 193.Labor 213.1.General hiring characteristics 213.2.Possibility of subcontracting 233.3.Legal benefits 233.4.Social security contributions levied on remuneration 263.5.Termination of the work contract 264.Data protection 294.1.Legal framework 294.2.Main obligations 295.Public procurement 315.1.Legal framework 315.2.National Providers Registry 315.3.Electronic Public Procurement System-SEACE 316.Energy 336.1.Main characteristics 336.2.Market agents 346.3.Power purchase mechanisms 346.4.Proinversin bids 356.5.Renewable energy 357.Conflict resolution:Arbitration 377.1.National and international arbitration 377.2.Ad hoc and institutional arbitration 387.3.Arbitration proceedings in which the Peruvian state is a party 387.4.Ex post judicial control 397.5.Recognition and enforcement of international arbitral awards in Peru 407.6.Arbitration in the framework of public procurement 407.7.Arbitration in the framework of public-private partnerships 417IntroductionThis guide provides an overview of key legal aspects for foreign investors interested in investing in Peru.It is not intended to be comprehensive,but to address practical issues that will help investors considering an investment project in Peru.Cuatrecasas is a law firm that advises on all areas of business law through a multidisciplinary,diverse and highly qualified team of more than 1,200 lawyers and 26 nationalities.We have a network of 27 offices in 13 countries and a strong presence in Spain and Portugal,where we are present in the main cities,and Latin America,where we have over 20 years of experience and a team of 125 professionals who operates from our offices in Chile,Colombia,Mexico and Peru.We have a sectoral approach and focus on all types of business,with extensive knowledge and experience in the most sophisticated advice,covering ongoing and transactional mattersWe focus on client service,incorporating ESG criteria and collective knowledge with innovation and state-of-the-art technology.We foment an innovation culture applied to the legal activity,which combines training,procedures and technological resources to contribute greater efficiency.For more information please visit 9Corporate 1.1.Restrictions on foreign investmentPeru has a general legal regime that establishes and promotes guarantees for foreign investors.Section 63 of the 1993 Political Constitution of Peru establishes equal rights and obligations for foreign and domestic investors.We highlight that investors can invest in any sector of the economy,provided it does not involve acquiring or holding assets within 50 km of the border or protected natural areas,unless an exception is declared by supreme decree due to public need or national interest,under section 71 of the Constitution.The governments prior,express authorization is only required for foreign investment in certain sectors such as arms,private security and surveillance,and maritime and air transport.There are no foreign exchange controls,and the use,conversion,and remittance of capital is free.1.2.Stability agreements Peru has legal stability agreements,which are agreements between foreign investors or the companies in which they invest and the Peruvian state,as an instrument to promote investment and guarantee the stability of the right to non-discrimination,to the applicable tax regime,and to the regime on currencies availability and dividends applicable to foreign capital.These agreements have force of law between the parties and can be entered into any time,provided the investors(i)make investments of at least USD 10 million in the mining and hydrocarbons sector or USD 5 million in other economic activities,and(ii)they channel the investment through the Peruvian financial system.Investment protected by stability agreements can be made in the capital of incorporated companies or companies to be incorporated,and they can be made in risky investments formalized with third parties,in concessionaire companies,and in investments requiring acquisition of over 50%of the shares of a state-owned company in a privatization process.Stability agreements have a term of 10 years,except for concessions,where the term is subject to the validity period of the concession itself.1101.3.Company types in Peru We briefly describe the most commonly used legal vehicles to carry out gainful activities in Peru.The most common company types regulated by the Peruvian General Companies Act are the public limited company(sociedad annima or SA)and the commercial private limited liability company(sociedad comercial de responsibilidad limitada or SL).In both cases,the company is liable to its creditors with all its present and future assets,and the private limited company shareholders are liable up to the limit of their capital contributions.Public limited companyPublic limited companies are the most commonly used vehicle,since the limited liability restricts the shareholders risk.There are three types of public limited companies:ordinary public limited company(SA),closed public limited company(SAC)and open public limited company(SAA).The capital of this type of company is represented by shares,which are represented by share certificates issued by the company.These companies are incorporated with fully paid-up share capital and a minimum payment per share of 25%of its par value.They are managed indirectly through corporate bodies:i)the General Shareholders Meeting:the decision-making body on structural aspects;ii)the board of directors:the decision-making body on management and administration aspects whose members are elected by the General Shareholders Meeting,with a minimum of three directors;and iii)the general management:the management body that operates under the guidelines of the other two and is elected by the board or the General Shareholders Meeting,as applicable.The term of the position is indefinite,unless established in the bylaws.No minimum capital is required,although this is determined by the minimum amount to open bank accounts,as the initial capital sum must be deposited in a bank.In general,transferring shares of a public limited company is fast and flexible,as there are no formal requirements for those transactions such as registering the transfer with public registries,as the transfer is registered in the Shareholders Register,which is a private register.The information on the companys shareholders registered with public registries is limited to the founding shareholders and does not extend to new shareholders,whose information remains confidential.Although,in theory,public limited company shares can be freely transferred,restrictions on the free transfer of their shares can be established in the bylaws and through shareholder agreements.Despite this,if the shares are listed on a centralized trading mechanism such as the Lima Stock Exchange,no restrictions can be placed on their free transfer.11 Closed public limited company(SAC):The maximum number of shareholders is 20,and their shares do not have to be registered with the public registry or the Public Registry of the Securities Market(Registro Pblio del Mercado de Valores,RPMV).The bylaws can remove the pre-emptive right and the board of directors;and the transfer of shares can be subject to the companys prior consent.Representation at the General Shareholders Meeting can only be exercised by another shareholder,a spouse,or a direct descendant or ascendant,unless the bylaws extend representation to other people.The right of withdrawal can be exercised if the share transferability restrictions regime or the pre-emptive right is modified,and the board of directors is optional.It should be noted that the General Meeting of Shareholders can be called by notices,fax,or email,and it does not have to be published in newspapers.Open public limited company(SAA):A public limited company is open if(i)it has made a primary public offering of shares or bonds convertible into shares;(ii)over 35%of its share capital belongs to 135 or more shareholders;(iii)it is incorporated as such;or(iv)all the shareholders of a company with voting rights unanimously adapt it to that regime.A company is also considered an open public limited company when it has at least 750 shareholders.Its shares must be registered with the PRSM,and its bylaws may not establish restrictions on their free transfer.The Superintendency of the Securities Market(SMV)is responsible for supervising open public limited companies and can require a company to adapt to an open public limited company and to submit financial information,among other matters.Restricting pre-emptive subscription rights is not admitted,unless an agreement is adopted with the vote of at least 40%of the subscribed shares with voting rights,and it does not seek to improve any shareholders position.Commercial private limited liability company Its capital is divided into equal,cumulative and indivisible units(participaciones)that cannot be incorporated in securities or referred to as public limited company shares(acciones).That capital is made up of shareholder contributions paid-up in no less than 25%of each share.As with closed public limited companies,there must be at least two and at most 20 shareholders,who will not be personally liable for the companys obligations(limited liability),and a board of directors is not mandatory.Unlike public limited companies,private limited liability companies(SRL)do not have a board of directors,and the companys management is entrusted to one or more managers who may not engage in the same type of activity as the purpose of the private limited liability company on their own or on behalf of a third party.Shares cannot be transferred in a private limited liability company as expeditiously as those of a public limited company,as the shareholders will have a pre-emptive right on the shares to be transferred,and the transfers must be made by public deed and registered with the public registries.The information on shareholders of a private limited liability company is always public.Companies incorporated in Peru must have a tax identification number(RUC)issued by the National Superintendency of Customs and Tax Administration(SUNAT)to carry out their business activities.The tax identification number can be obtained in the company incorporation process(before its registration),which entails certain liabilities for the founders.However,the RUC is usually obtained after the company has been registered with the public registries.When applying for the RUC,the company must state the start date of its activities,and it may perform them from that point.In turn,it will be required to comply with all its tax obligations.Incorporation processCompanies are incorporated by public deed,which must then be registered in the public registries of the location of their registered office in Peru.This registration will generate a companys registration number.Anyone carrying out economic activities in Peru in specific premises must have the corresponding municipal operating license for the premises,which is granted by the local district municipality(in accordance with compatible uses and different regulations).The process of incorporating a company usually takes around 15 business days.If the founders are entities not domiciled in the country or individuals not who are not there at the time of incorporation,the appropriate powers of attorney must be registered.These documents must be officially translated,if applicable,and registered with the public registries.This process usually takes up to another 15 business days.These are the company incorporation steps:Grant powers of attorney to incorporate the company.Check that the corporate name is unique.Prepare the certificate of incorporation and execute the public deed before a notary public.Deposit at least 25%of the companys share capital in a local bank account and get proof of it.Register the incorporation with public registries.Register at the Single Taxpayers Registry.Legalize corporate books.Although it is necessary to register the company with the public registries,it may perform certain preliminary acts on the condition of subsequent registration.Before registration,these preliminary acts generate individual liability for the people involved,which ends when the company is registered and these acts are ratified.The company can be directly incorporated by foreign legal entities,in which case they must grant powers of attorney to individuals to act in executing the public deed of incorporation in Peru.Those powers of attorney must be registered with the public registries.Alternatively,to save time and resources,the company may be incorporated by individuals domiciled in Peru and subsequently transfer 100%of the shares to the final shareholders through a private document.1213Branches of companies incorporated abroadArticle 396 of the General Companies Act defines a branch as“(.)any secondary establishment through which a company carries out certain activities within its corporate purpose in a location other than its registered office.”Based on this definition,a branch is a mere extension of the company that establishes it and,consequently,it lacks its own legal personality,only has permanent representation and enjoys management autonomy in the scope of the activities that its parent company assigns it,in accordance with the powers of attorney granted to its legal representatives.Therefore,the company(domestic or foreign)that establishes a branch in Peru will have unlimited liability,without admitting an agreement to the contrary,for all the obligations acquired by the branch.To establish a branch in Peru,the parent company must pass a board or shareholders resolution.That resolution must list(i)the share capital(it does not have to be deposited with a financial institution),(ii)the act