Sustainability and Competition Global Practice Guide |
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Peru |
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| (Latin America/Caribbean) Firm Estudio Olaechea Updated 10 Aug 2022 | |
| Are ESG measures/sustainability agreements included in your jurisdictional competition regime? | No. The Peruvian competition regime does not include any reference to ESG or sustainability in its enforcement of competition law. The Single Ordered Text of the Law for the Repression of Anticompetitive Conducts (“Competition Law”) establishes a “consumer welfare”, and only takes into consideration “social” related matters insofar as they are related to price increases and/or output decreases which affect consumers and are the result of anticompetitive conduct in the market. Even though the Law which Establishes the Ex-Ante Merger Control (“Merger Control Law”) mentions a “dual” “effective competition” and “consumer welfare” standard, it does not take into consideration ESG or sustainability-related matters, only addressing “social” issues if they cause a direct impact over the competition process within the market and consumers. |
| If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022? | No, we do not see any foreseeable regulations coming into place in 2022. |
| Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct? | No, the Peruvian competition agency (“Indecopi”) has not currently issued any guidance on that matter. |
| Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG? | Indecopi issued guidance regarding competition collaborations or participation in industry working groups in 2019, called “Guidelines on Trade Associations and competition” (link to the English version: https://bit.ly/3nGjgE9). However, said Guidelines do not address ESG-related matters. |
| Can parties seek specific guidance from authorities on proposed ESG initiatives? | Currently, Indecopi does not provide specific guidance regarding proposed ESG initiatives. Other non-competition-related Peruvian authorities may provide guidance on environmental, social or governance-related matters. For example, the Ministry of the Environment (“MINAM”) may enact policies that encourage private actors to comply with its environmental obligations. Also, the securities market regulator in Perú (“SMV”) encourages the adoption of the Code of Good Corporate Governance for Peruvian Corporations (“Corporate Governance Code”) (link for the Spanish version: https://bit.ly/3uusg2T), which establishes a voluntary set of principles to be implemented by the firms which choose to participate in the Peruvian securities market. However, the Corporate Governance Code does not consider “environmental” or “social” matters and does not include gender or any other kind of diversity-related matter in its text. The same applies to mandatory governance obligations imposed by the Single Ordered Text of the Securities Market Law (“Securities Market Law”) to certain market players, such as the ones needed for an organization authorization and a functioning authorization (for example, mutual funds manager firms). Now, regarding provisional funds, the Title VI of the Compendium of Regulatory Norms of the Private Pension System establishes that the investment policies should consider, in its structure, environmental, social and corporate governance factors. In that sense, the provisional funds' managers must periodically evaluate, based on the best practices of the industry and the information available, the incorporation or not of environmental, social and corporate governance factors in its analysis. |
| How, if at all, does your jurisdiction quantify or calculate the ESG effects? | It largely depends on the administrative entity in charge of its enforcement. However, this only applies to “mandatory provisions” related to environmental, labor and securities law. To our understanding, there is no general law that regulates how to consider “voluntary” ESG effects in any kind of commercial or business activity. There is not any quantification method to be applicable regarding ESG effects. |
| What does your legal authority currently permit even if your agency is not yet active on this topic? | Indecopi does not control or apply any norm related to ESG or sustainability matters. In general, however, firms comply with ESG standards on a voluntary basis, by large. There is no restriction related to the implementation of ESG measures so that companies can use them to provide greater value to their stakeholders. Regarding provisional funds, the corresponding authority, which is the Superintendence of Banking, Insurance and Provisional Funds, has included ESG analysis into regulatory provisions applicable to investment policies designed for that kind of funds. |
| Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description. | No, to our knowledge there have not been any precedents related to said matter. |
| Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation? | No. Currently, there is no specific antitrust regulation in Peru applicable to said matter. Consumers are only allowed to claim private damages after they have a firm administrative resolution that states that a particular firm or person has engaged in anticompetitive practices prohibited under the Competition Law. In this follow-on-only regime, consumers can only claim the damages directly caused by the anticompetitive practice, and as such an ESG claim would not be taken into consideration in said concept. The same reasoning applies to class action suits, with the exception that there currently is not an adequate regulation of class actions for competition law private enforcement-related matters. |
Sustainability and Competition Global Practice Guide
No. The Peruvian competition regime does not include any reference to ESG or sustainability in its enforcement of competition law. The Single Ordered Text of the Law for the Repression of Anticompetitive Conducts (“Competition Law”) establishes a “consumer welfare”, and only takes into consideration “social” related matters insofar as they are related to price increases and/or output decreases which affect consumers and are the result of anticompetitive conduct in the market.
Even though the Law which Establishes the Ex-Ante Merger Control (“Merger Control Law”) mentions a “dual” “effective competition” and “consumer welfare” standard, it does not take into consideration ESG or sustainability-related matters, only addressing “social” issues if they cause a direct impact over the competition process within the market and consumers.
No, we do not see any foreseeable regulations coming into place in 2022.
No, the Peruvian competition agency (“Indecopi”) has not currently issued any guidance on that matter.
Indecopi issued guidance regarding competition collaborations or participation in industry working groups in 2019, called “Guidelines on Trade Associations and competition” (link to the English version: https://bit.ly/3nGjgE9). However, said Guidelines do not address ESG-related matters.
Currently, Indecopi does not provide specific guidance regarding proposed ESG initiatives. Other non-competition-related Peruvian authorities may provide guidance on environmental, social or governance-related matters. For example, the Ministry of the Environment (“MINAM”) may enact policies that encourage private actors to comply with its environmental obligations.
Also, the securities market regulator in Perú (“SMV”) encourages the adoption of the Code of Good Corporate Governance for Peruvian Corporations (“Corporate Governance Code”) (link for the Spanish version: https://bit.ly/3uusg2T), which establishes a voluntary set of principles to be implemented by the firms which choose to participate in the Peruvian securities market.
However, the Corporate Governance Code does not consider “environmental” or “social” matters and does not include gender or any other kind of diversity-related matter in its text. The same applies to mandatory governance obligations imposed by the Single Ordered Text of the Securities Market Law (“Securities Market Law”) to certain market players, such as the ones needed for an organization authorization and a functioning authorization (for example, mutual funds manager firms).
Now, regarding provisional funds, the Title VI of the Compendium of Regulatory Norms of the Private Pension System establishes that the investment policies should consider, in its structure, environmental, social and corporate governance factors. In that sense, the provisional funds' managers must periodically evaluate, based on the best practices of the industry and the information available, the incorporation or not of environmental, social and corporate governance factors in its analysis.
It largely depends on the administrative entity in charge of its enforcement. However, this only applies to “mandatory provisions” related to environmental, labor and securities law. To our understanding, there is no general law that regulates how to consider “voluntary” ESG effects in any kind of commercial or business activity.
There is not any quantification method to be applicable regarding ESG effects.
Indecopi does not control or apply any norm related to ESG or sustainability matters. In general, however, firms comply with ESG standards on a voluntary basis, by large. There is no restriction related to the implementation of ESG measures so that companies can use them to provide greater value to their stakeholders.
Regarding provisional funds, the corresponding authority, which is the Superintendence of Banking, Insurance and Provisional Funds, has included ESG analysis into regulatory provisions applicable to investment policies designed for that kind of funds.
No, to our knowledge there have not been any precedents related to said matter.
No. Currently, there is no specific antitrust regulation in Peru applicable to said matter. Consumers are only allowed to claim private damages after they have a firm administrative resolution that states that a particular firm or person has engaged in anticompetitive practices prohibited under the Competition Law. In this follow-on-only regime, consumers can only claim the damages directly caused by the anticompetitive practice, and as such an ESG claim would not be taken into consideration in said concept. The same reasoning applies to class action suits, with the exception that there currently is not an adequate regulation of class actions for competition law private enforcement-related matters.