INDECOPI Issues New Precedent of Mandatory Compliance: Payment of insolvency claims during the period of suspension of the enforceability of the debtor's obligations is administratively sanctionable
The Specialized Court for Insolvency Proceedings of the National Institute for the Defense of Competition and the Protection of Intellectual Property – INDECOPI (hereinafter, the “Court”) has issued a new precedent of mandatory compliance that redefines the rules governing the management of the assets of a debtor subject to an insolvency proceeding.
By means of Resolution No. 0047-2025/SCO-INDECOPI dated January 24, 2025 (hereinafter, the “Precedent”), the Court has established that the payment of insolvency claims during the period in which the enforceability of the debtor’s obligations is suspended constitutes an irregular act of disposition of assets, subject to administrative sanctions.
The Precedent establishes the following criteria:
“The payment of insolvency claims using the debtor’s assets, after the publication of the debtor's insolvency status in the INDECOPI’s Insolvency Bulletin, during the period of suspension of enforceability of the debtor's obligations provided in Articles 17.1 and 17.2 of the General Law of the Insolvency System, constitutes an act of disposition of assets that does not relate to the ordinary course of the debtor’s business, in accordance with literal c) of Article 125.2 of the General Law of the Insolvency System. Therefore, such conduct may be sanctioned by the insolvency authority with a fine ranging from one (1) to one hundred (100) Tax Units.”
A milestone in Insolvency Jurisprudence
This new criterion resolves a long-standing debate on whether a debtor may make payments of insolvency claims during the period of suspension of the enforceability of its obligations, alleging the need to continue with its operations.
Henceforth, any payment of insolvency claims made during such suspension will be considered sanctionable, regardless of the purpose of such payment.
The Precedent reinforces the principle of equal treatment among creditors and the need to safeguard the integrity of the debtor’s equity during the insolvency proceeding.
Outstanding Participation of Santiváñez Abogados
The team specialized in insolvency law of Santiváñez Abogados played a key role in the issuance of this Precedent, representing the defense of one of its clients with a robust argumentation that contributed decisively to the Court’s adoption of this new interpretative criterion.
Key Concepts
An insolvency claim is any outstanding obligation payable by the debtor generated prior to the formal commencement of insolvency proceedings. The suspension period of the enforceability of the debtor’s obligations, governed by Article 17 of the General Law of the Insolvency System, is aimed to prevent debtors from making payments and creditors from collecting insolvency claims.
This Precedent represents a relevant milestone in the evolution of the Peruvian insolvency system, providing greater legal certainty regarding the obligations of debtors and the duties of creditors within the framework of insolvency proceedings.
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This document provides a brief summary of the main implications of the precedent of mandatory compliance published by INDECOPI. It does not constitute legal advice or a legal opinion regarding the application of such precedent to specific cases.