The primary goal of any justice system is to adequately safeguard those with a legitimate legal advantage. This article examines how constitutional jurisprudence has evolved to expand its scope of review over arbitration in instances where the protection of fundamental rights has demanded it.
In a constitutional state like Peru, areas exempt from oversight are exceedingly rare. The aim is to ensure that all exercises of power are reasonable and aligned with the principles and values that underpin them. Thus, constitutional justice serves not only to uphold the supremacy of the Constitution as the highest-ranking norm but also to protect fundamental rights.
In recent years, arbitration has emerged as one of the leading mechanisms for resolving disputes in Peru, particularly given the volume of commercial transactions taking place. Several factors explain this trend: a robust legislative framework[1], the faster resolution times compared to ordinary judicial proceedings, the flexibility arbitration offers (allowing parties to define the characteristics of the process), and the specialized knowledge of arbitrators, among others.
The constitutional importance of arbitration has also been explicitly recognized: Article 139(1) of the Peruvian Constitution acknowledges arbitration as a form of jurisdiction. This recognition has fostered a legal framework that shields arbitration from undue interference, ensuring its development and safeguarding the role of arbitrators[2].
To that end, Peruvian lawmakers have stipulated that arbitral awards may only be challenged through a narrowly defined “annulment remedy,”[3] and that such challenges cannot address the substantive[4] merits of the arbitral decision. However, does this preclude constitutional review of arbitration? The significance of this issue has prompted the Peruvian Constitutional Court to issue two binding precedents[5]: the "Cantuarias Precedent" in 2005, arising from habeas corpus[6] case No. 6167-2005-PH/TC, and the "María Julia Precedent" in 2011, from case No. 00142-2011-PA/TC.
The Cantuarias Precedent established that constitutional amparo[7] proceedings could challenge an arbitral award, provided that annulment remedies had been exhausted as a “prerequisite”[8]. The claim must demonstrate either a violation of the right to effective judicial protection or a failure by arbitrators to adhere to constitutional jurisprudence or binding precedents.
Six years later, the María Julia Precedent reaffirmed annulment as an “equally suitable alternative”[9] to amparo. However, it also allowed for amparo claims in specific scenarios: (i) when a binding precedent is violated; (ii) when diffuse constitutional control is improperly applied[10]; and (iii) when a third party uninvolved in the arbitration agreement brings the claim, unless they are a non-signatory party.
These decisions clarified that arbitral awards could be subject to constitutional review in exceptional cases. However, what happens when the harmful act is not the award itself? As is often the case with judicial systems, jurisprudence evolves in response to emerging conflicts, and this issue was no exception.
The Constitutional Court addressed the first such case in 2014 (case No. 8448-2013-PA/TC), ruling that amparo could challenge non-award arbitral decisions during enforcement if (i) the act lacked a legal basis and (ii) fundamental rights were manifestly violated. A similar decision followed in 2015 (case No. 5653-2013-PA/TC), affirming that amparo could challenge award enforcement.
Subsequent conflicts brought new challenges. In case No. 03428-2013-PA/TC, the Constitutional Court, while dismissing the claim[11], saw Justice Ernesto Blume emphasize the importance of constitutional oversight for non-award arbitral acts. This perspective was reinforced in 2021 (case No. 00305-2021-PA/TC), where the Court upheld an amparo claim against a non-award decision—a precautionary measure affecting a third party outside the arbitration.
Recent years have seen a rise in cases involving fraudulent arbitration processes designed to harm the assets of targeted parties, often financial institutions. Constitutional courts have addressed these issues by granting amparo relief against irregular measures, including precautionary actions, without requiring the exhaustion of annulment remedies. In some cases, precautionary measures have been granted to effectively protect victims' rights, suspending unconstitutional acts.
Given this evolution, is a new binding precedent necessary? We believe it is not. Constitutional justice has demonstrated its ability to adapt the María Julia Precedent to meet contemporary challenges, consistently applying a pro homine [12]perspective.
However, one issue remains unresolved: determining jurisdiction for first-instance amparo claims against non-award arbitral acts. Currently, some cases are adjudicated by constitutional courts at the first instance, while others are handled by Constitutional Chambers. Article 42 of the Constitutional Procedural Code assigns jurisdiction to the Constitutional Chamber when the contested act is a judicial resolution or an arbitral award. While the Chamber’s authority over judicial resolutions is unequivocal, interpretations vary regarding arbitration. Some argue that jurisdiction lies with the Chamber only when the contested act is an award, not other arbitral decisions.
In conclusion, as we have seen, jurisprudence has effectively adapted to evolving demands over time. We anticipate forthcoming decisions will bring greater predictability to jurisdictional questions, ensuring that constitutional justice continues its active role in defending fundamental rights and upholding the essence of the rule of law: the protection of human dignity.
[1] The Peruvian Arbitration Law is considered one of the most modern in the world, drawing from the UNCITRAL Model Law on International Commercial Arbitration and the Spanish Arbitration Law.
[2] For instance, Article 3(4) of the Peruvian Arbitration Law states: “No action or order outside arbitration proceedings may override the decisions of the arbitral tribunal, except for judicial review through the annulment remedy provided in this Legislative Decree. Any other judicial intervention aimed at controlling the arbitrators' functions or interfering with arbitral proceedings prior to the award is subject to liability.”
[3] While there has been debate over whether it constitutes a remedy or a process, its procedural framework is entirely clear. It is resolved in a single instance by a Commercial Chamber, and its filing does not suspend the effects of the award unless the claimant provides a bank guarantee equivalent to the award's value. For declaratory decisions, the amount is determined by the arbitral tribunal or, failing that, by the Commercial Chamber itself.
[4] These grounds refer to defects that render arbitration null. For example, Article 63 of the Arbitration Law states that an award may be annulled if the arbitration agreement is invalid or if one party’s right to defense has been violated, among others.
[5] The Peruvian Constitutional Court has defined a binding constitutional precedent as “a legal rule established in a specific case that the Constitutional Court decides to set as a general rule, thereby becoming a normative parameter for resolving future cases of a similar nature.” See: Constitutional Court Decision No. 0024-2003-AI/TC.
[6] Habeas corpus proceedings apply to actions or omissions that threaten or violate individual liberty rights and related rights.
[7]An amparo proceeding seeks to protect fundamental rights other than individual liberty, access to public information, and informational self-determination.
[8] The prior remedy requires exhaustion of a mechanism before filing an amparo claim.
[9] A remedy is deemed equally satisfactory if its procedural design can effectively protect the claimant’s rights to the same extent as amparo.
[10] According to Article VII of the Preliminary Title of the Constitutional Procedural Code: “When there is a conflict between the Constitution and a lower-ranking norm, the judge must prefer the former, provided this is relevant to resolving the dispute and no constitutional interpretation is possible.”
[11] It was argued that the matter had become moot, as the effects of the precautionary measure had ceased by the time the conflict was resolved.
[12] This principle allows the legal operator to choose the interpretation and application of a norm that best favors the recipient of protection. Beyond its interpretive nature, the pro homine principle dictates that all disputes should always be resolved in favor of the individual seeking protection.