Gathering Evidence in Aid of Foreign Litigation Guide |
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Peru |
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| (Latin America/Caribbean) Firm Estudio Olaechea Updated 24 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, it does. Peru has concluded several conventions and agreements in favor of the international judicial cooperation between states. Regarding this particular case, Peru has signed the Inter-American Convention on Taking of Evidence Abroad ("The Convention") The following countries subscribe to The Convention:
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| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | No, Peru is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). As members of the Hague Evidence Convention, our main statutory requirements for obtaining evidence in aid of foreign litigation are in its articles 2°, 4° and 10°, which state: "Article 2 Letters rogatory issued in conjunction with proceedings in civil or commercial matters for the purpose of taking evidence or obtaining information abroad and addressed by a judicial authority of one of the states parties to this Hague Evidence Convention to the competent authority of another, shall be executed in accordance with the terms specified therein, provided:
Article 4 Letters rogatory requesting the taking of evidence or the obtaining of information abroad shall specify the following information needed for fulfilling the request;
Article 10 Letters rogatory shall be executed in the states parties provided they meet the following requirements:
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| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In appliance of collaboration agreed in The Convention, requests made to a judicial local authority do not require a new approval by a local court or administrative body. Nevertheless, it is important to have into consideration that the request must be made to a competent authority, as stated in Article 3° of The Convention, which indicates: “Article 3 The authority of the state of destination shall have jurisdiction over disputes |arising in connection with the execution of the measure requested. Should the authority of the state of destination find that it lacks jurisdiction to execute the letter rogatory but consider that another authority of the same state has jurisdiction, it shall ex officio forward to it, through the appropriate channels, the documents and antecedents of the case. In the execution of letters rogatory, the authority of the state of destination may apply the measures of compulsion provided for in its law.” Also, the authority required can deny the collaboration if the request is related to pretrial discovery of documents, according to the article 9 of The Convention, which points out: “Article 9 Pursuant to Article 2.1, the authority of the state of destination may refuse the execution of a letter rogatory whose purpose is the taking of evidence prior to judicial proceedings or "pretrial discovery of documents" as the procedure is known in common law countries.” |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Any type of information can be sought, that is not always related to the pretrial discovery of documents. In addition, as mentioned in Article 2 of The Convention the information request must have a compatibility with the legal provisions/legal framework of Peru and Peru’s public order. |
| Who bears the burden of showing whether any privileges apply? | The one that claims the privileges has the burden of showing it. For instance, Article 12 of The Convention states: “Article 12 A person called to give evidence in the state of destination pursuant to a letter rogatory may refuse to do so when he invokes impediment, exception or duty to refuse to testify:
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| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, it is not necessary. As mentioned before in Article 2 of The Convention, the allowability of the information sought is restricted by the legal provisions/legal framework of Peru and Peru’s public order, not of the foreign jurisdiction. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes. At the time, due to the COVID-19 pandemic, remote depositions have been prioritized in Peru, and the platform chosen is Google Meets. Nevertheless, in some criminal cases, prosecutors prefer to conduct the depositions in person. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No, it has not. The only limit Peru applies is according to Article 2 of The Convention, that the information cannot be contrary to the legal provisions/legal framework of Peru and Peru’s public order. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, they can. There is not any limit for a citizen to voluntarily give evidence in a foreign proceeding. However it must fulfill the legal requirements of the foreign jurisdiction and the evidence given, according to Article 2 of The Convention, cannot be contrary to the legal provisions/legal framework of Peru and Peru’s public order. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | There should be no difference because arbitral jurisdiction is accepted in Peru and the arbitration practice is widespread around the country. In that sense, arbitrators must comply with the same requirements that are requested for Judicial Court cases. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, it does. Peru has concluded several conventions and agreements in favor of the international judicial cooperation between states. Regarding this particular case, Peru has signed the Inter-American Convention on Taking of Evidence Abroad ("The Convention")
The following countries subscribe to The Convention:
- Argentina
- Bolivia (Not ratified)
- Brazil (Not ratified)
- Chile
- Colombia
- Costa Rica
- Ecuador
- El Salvador
- Guatemala
- Honduras
- México
- Nicaragua
- Panamá
- Paraguay
- Peru
- Dominican Republic
- Uruguay
- Venezuela
No, Peru is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).
As members of the Hague Evidence Convention, our main statutory requirements for obtaining evidence in aid of foreign litigation are in its articles 2°, 4° and 10°, which state:
"Article 2
Letters rogatory issued in conjunction with proceedings in civil or commercial matters for the purpose of taking evidence or obtaining information abroad and addressed by a judicial authority of one of the states parties to this Hague Evidence Convention to the competent authority of another, shall be executed in accordance with the terms specified therein, provided:
- The procedure requested is not contrary to legal provisions in the state of destination that expressly prohibit it;
- The interested party places at the disposal of the authority of the state of destination the financial and other means necessary to secure compliance with the request.
Article 4
Letters rogatory requesting the taking of evidence or the obtaining of information abroad shall specify the following information needed for fulfilling the request;
- A clear and precise statement of the purpose of the evidence requested;
- Copies of the documents and decisions that serve as the basis and justification of the letter rogatory, as well as such interrogatories and documents as may be needed for its execution;
- Names and addresses of the parties to the proceeding, as well as of witnesses, expert witnesses, and other persons involved and all information needed for the taking of the evidence;
- A summary report on the proceeding and the facts giving rise to it, if needed for the taking of the evidence;
- A clear and precise statement of such special requirements or procedures as may be requested by the authority of the State of origin for the taking of the evidence, except as provided in Article 2.1 and Article 6. (…)
Article 10
Letters rogatory shall be executed in the states parties provided they meet the following requirements:
- The letter rogatory is legalized, except as provided for in Article 13 of this Convention. The letter rogatory shall be presumed to be duly legalized in the State of origin when legalized by the competent consular or diplomatic agent;
- The letter rogatory and the appended documentation are duly translated into the official language of the State of destination.
- The states parties shall inform the General Secretariat of the Organization of American States of the requirements stipulated in their laws for the legalization and the translation of letters rogatory.”
In appliance of collaboration agreed in The Convention, requests made to a judicial local authority do not require a new approval by a local court or administrative body.
Nevertheless, it is important to have into consideration that the request must be made to a competent authority, as stated in Article 3° of The Convention, which indicates:
“Article 3
The authority of the state of destination shall have jurisdiction over disputes |arising in connection with the execution of the measure requested.
Should the authority of the state of destination find that it lacks jurisdiction to execute the letter rogatory but consider that another authority of the same state has jurisdiction, it shall ex officio forward to it, through the appropriate channels, the documents and antecedents of the case.
In the execution of letters rogatory, the authority of the state of destination may apply the measures of compulsion provided for in its law.”
Also, the authority required can deny the collaboration if the request is related to pretrial discovery of documents, according to the article 9 of The Convention, which points out:
“Article 9
Pursuant to Article 2.1, the authority of the state of destination may refuse the execution of a letter rogatory whose purpose is the taking of evidence prior to judicial proceedings or "pretrial discovery of documents" as the procedure is known in common law countries.”
Any type of information can be sought, that is not always related to the pretrial discovery of documents.
In addition, as mentioned in Article 2 of The Convention the information request must have a compatibility with the legal provisions/legal framework of Peru and Peru’s public order.
The one that claims the privileges has the burden of showing it.
For instance, Article 12 of The Convention states:
“Article 12
A person called to give evidence in the state of destination pursuant to a letter rogatory may refuse to do so when he invokes impediment, exception or duty to refuse to testify:
- Under the law of the state of destination; or
- Under the law of the state of origin, if the invoked impediment, exception or duty to refuse has been specified in the letter rogatory or has been confirmed by the requesting authority at the instance of the court of destination.”
No, it is not necessary.
As mentioned before in Article 2 of The Convention, the allowability of the information sought is restricted by the legal provisions/legal framework of Peru and Peru’s public order, not of the foreign jurisdiction.
Yes. At the time, due to the COVID-19 pandemic, remote depositions have been prioritized in Peru, and the platform chosen is Google Meets.
Nevertheless, in some criminal cases, prosecutors prefer to conduct the depositions in person.
No, it has not. The only limit Peru applies is according to Article 2 of The Convention, that the information cannot be contrary to the legal provisions/legal framework of Peru and Peru’s public order.
Yes, they can. There is not any limit for a citizen to voluntarily give evidence in a foreign proceeding. However it must fulfill the legal requirements of the foreign jurisdiction and the evidence given, according to Article 2 of The Convention, cannot be contrary to the legal provisions/legal framework of Peru and Peru’s public order.
There should be no difference because arbitral jurisdiction is accepted in Peru and the arbitration practice is widespread around the country. In that sense, arbitrators must comply with the same requirements that are requested for Judicial Court cases.