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In brief

On 22 May 2021, by Supreme Decree No. 102-2021-PCM (“Decree“), the procedure for the elimination of non-tariff trade barriers was approved.

The Decree contains provisions regulating the elimination of illegal and/or unreasonable non-tariff trade barriers that restrict or hinder the free trade of goods from or to Peru. A more detailed and clearer regulatory framework has been created with the elimination of bureaucratic barriers where applicable.


Below is a brief summary of the main provisions of this Decree:

  • Non-tariff trade barrier. Definedas any unlawful and/or unreasonable demand, requirement, restriction, prohibition and/or collection imposed by public administration on economic operators by rule of law or administrative powers that affect the import or export of goods, and which exist in provisions or administrative acts with general or particular scope. No details have been given about the administrative acts of promotion, which also create barriers; through various resolutions, however, the National Institute for the Defence of Competition and Protection of Intellectual Property (INDECOPI) has excluded them from the corresponding scope.
  • Procedure details: The procedure has been clarified, for example:
    • Start ex officio or on request: In the latter case, the request shall be addressed to the Technical Secretariat of the Commission on Dumping, Subsidies and Elimination of Non-Tariff Trade Barriers of INDECOPI. This request may also be submitted by associations or guilds through their legal representatives.
    • Methodology: It includes a legality analysis and a reasonableness analysis. The latter shall be considered only if the applicant presents arguments or indications prior to the admission of the complaint. If a barrier is found to be illegal, the reasonableness analysis will not be conducted.
    • Final Resolution: If a barrier complained of in a proceeding initiated at the request of a party is found to be unlawful or unreasonable, the Commission shall order the non-tariff trade barrier to be inapplicable to the complaining economic operator and, where appropriate, to the third parties involved in the proceeding. In the case of guilds or associations, the non-application of the barrier applies to all their associates or members. If applicable, the Commission may recommend the modification of the barrier to the public entity, which will have a maximum period of 90 calendar days to decide on the recommendation.
  • Evidentiary means: During the procedure, only documents, expert reports and inspections may be presented as evidence. Exceptionally, the Commission may admit evidence other than these, provided that they are appropriate and relate to the subject matter at issue.
  • Interim measures: This expressly stipulates that at any stage of the proceedings, the Commission or the Chamber may issue precautionary measures, either ex officio or at the request of a party. For these purposes, a Resolution must be issued within a maximum period of 30 working days, analyzing: (i) the non-tariff trade barrier sought to be inapplicable; (ii) the likelihood of the illegality or lack of reasonableness of such barrier; and (iii) the possibility of irreparable damage occurring during the time between the filing of the application and the termination of the proceeding. 
  • Validity: The Decree applies immediately to all applications already submitted to the Commission but not yet processed.

Finally, we share a table with relevant information about the procedure:

ProcedureActivatorCompetent AuthorityTime limits for resolutionTime limit for filing an appealAnalysis methodology
Elimination of Non-Tariff Trade BarriersEx Officio or on Behalf of a PartyINDECOPIFirst instance: one hundred and twenty (120) days.Second instance: one hundred and twenty (120) days.Fifteen (15) business days from the notification of the Decision of First instance.Legality analysis evaluates: The authority of the entity to impose the barrier. Compliance with the procedure established to issue the provision containing the barrier. Contravention of the rules of the legal system. 
Reasonableness analysis evaluates: The public interest underpinning the barrier.Arbitrariness and/or disproportionality with respect to the objectives of the barrier.


We trust that this information is relevant to you and your company. If you need to delve into the subject, please contact us.

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Author

Luis Alonso Garcia has more than 25 years of experience practicing in intellectual property law. Mr. Garcia has been vice minister of Foreign Trade in Peru. He was in charge of the negotiation of intellectual property in the free trade agreement between Peru and the United States. He has successfully led the offices for Peru’s trademarks and patents and has chaired the Court for Intellectual Property in INDECOPI. Mr. Garcia is also an intellectual property lecturer in different universities in Peru.

Author

A specialist in foreign trade and customs, Gonzalo has a broad experience in advisory, preventive audits and litigation related with sophisticated trade operations, trade facilitation and investment. His professional expertise includes legal advisory provided to either domestic or international enterprises, specifically related to import and export regimes, customs valuation, tariff classification, rules of origin, trade barriers (sanitary and phytosanitary measures, technical barriers to trade), investment and infrastructure, supply chain management, transport, Free Trade Agreements (FTAs), Regional and Plurilateral Agreements (CAN, MERCOSUR, among others) compliance and WTO law.

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