Bank finance and regulation Multi-jurisdictional survey Peru Enforcement of security interests in banking transactions Juan Carlos de los Heros Estudio Echecopar juancarlos.delosheros@echecopar.com.pe Part I - types of security 1. What are the most common types of security in banking transactions in your jurisdiction (eg, standard security package)? Please provide a brief characteristic of each type of security. In Peru the most common types of security in banking transactions are mortgages, security interests on movable property and security trusts, which may be created by debtors or third party guarantors. The securities included in a standard security package will depend on the type of transaction and the purpose of the financing. Commonly, in a project financing a standard security package would include a security interest on the shares of the borrower and its subsidiaries, a security trust on receivables and bank accounts, a mortgage or security trust on real property, and a security interest on movable property. The mortgage or security trust on real property and the security interest on movable property would usually include the relevant rights under insurance policies, but insurance policies may also be endorsed in favor of the lender or the security agent, as the case may be. Though a security interest is not created, a standard security package would also include a conditional assignment of the key project contracts 1. Under Peruvian law a type of finance transaction that may resemble a security agreement is the finance lease (arrendamiento financiero), which is commonly used by companies to acquire fixed assets benefiting from certain tax advantages. The finance lease is a fixed-term lease under which a bank or lessor authorised by the competent authority purchases an asset from a supplier as instructed by the lessee and owns the asset during the term of the lease, and the lessee takes possession of the asset from the beginning and has the option of purchasing the asset at the end of the lease for a nominal price. a) Mortgage A mortgage is a lien created on real property to secure payment or performance of an obligation. A mortgage may be created by an agreement of the parties or a unilateral act of the mortgagor. According to the Peruvian Civil Code, a mortgage includes all such assets that cannot be separated from the relevant real property and all its ancillary assets, as well as any insurance or expropriation proceeds that the mortgagor could receive in connection with said property. The mortgagor keeps the ownership and possession of the asset. The mortgagee may enforce the mortgage even if title to the real property is transferred to a third party. The mortgagee will have priority against other creditors based upon the registration of the mortgage in the relevant Real Estate Registry. 1 Peruvian law provides a different regime for the assignment of rights under contracts, and the assignment of contracts or assignment of a contractual position (which includes all rights and obligations of the relevant party thereto).
To be perfected, a mortgage needs to be granted by a public deed before a Public Notary and registered in the relevant Real Estate Registry. Registration process may take up to approximately twenty (20) working days. The real property build, installed or acquired by the mortgagor after the creation of the mortgage would not be automatically incorporated thereto. In order for such assets to be incorporated to the mortgage, mortgagor shall be required to explicitly include them in the relevant agreement by means of written amendments. Such amendments shall also be notarised and registered in the relevant Real Estate Registry. b) Security interest on movable property The security interest is an in rem right created in the Peruvian legal system by Law 28677 Security Interest Law (hereinafter LGM or the Act) in May 2006, when said act entered into force. When the LGM became effective, all pledges contemplated in the Peruvian Legislation were derogated. 2 However, it is worth noting that the security interest is not merely a pledge with a different name, but on the contrary it is a much broader security interest that offers many more possibilities than the old pledges contemplated in our legislation. The LGM favors credit and confers great freedom to the parties' intent by establishing basically supplementary provisions in the event that the parties have failed to establish certain terms that will govern the security interest. In this connection, the drafting of the document of creation of the security interest is particularly important. The security interest is an encumbrance created on movable property by means of an agreement or unilateral act, intended to secure payment or performance of an obligation. For the security interest to be enforceable against third parties and have priority, the relevant agreement or act duly certified by a Notary Public must be filed and registered with the Registry of Security Agreements or the corresponding Registry of Movable Property, as applicable, to have priority and be enforceable against third parties. Generally speaking, a security interest may be created on all the movable property owned by the debtor or third party guarantor, as the case may be. A security interest may also be created on the present or future credit rights of the grantor of the security interest. Accordingly, the secured creditor may request the grantor of the security interest to provide information regarding the credit collection process. A security interest may be created to secure own or third party obligations, whether present or future. In that event, the amount of the security interest may be variable, provided that it is determinable. Furthermore, when the security interest is created by a third party other than the debtor, the debtor s consent shall not be required. It is worth noting that, unlike other security interests regulated by the Peruvian legislation, the security interest on movable property can be pre-established. A pre-established security interest is perfected by its registration with the relevant Public Registry, so that once the security interest takes effect, the effects thereof are retroactive to the date of its filing with the pertinent Public Registry. In this connection, the preestablished security interest shall set a priority over third parties or other creditors with subsequent security interests. A security interest may be pre-established in three cases: (i) (ii) (iii) on third party property, before grantor acquires the ownership of such movable property; on future movable property, before it exists; and when its purpose is to secure future or contingent obligations. 2 This means that the legal provisions regulating different types of pledges (ie, mining pledge, aircraft pledge, industrial pledge, among others) were replaced by the provisions related to the security interest on moveable property. Notwithstanding, all pledged perfected under the prior legal regime remain valid and enforceable.
In these cases, the effectiveness of the pre-established security interest is subject to the grantor acquiring the ownership of the property, to the existence of the property or to the actual undertaking of the obligation, as the case may be. The pre-established security interest confers priority to the secured creditor according to the date of filing thereof with the relevant Public Registry Office. In that sense, where successive security interests have been created on the same movable property, the priority is determined according to the date of filing with the pertinent Public Registry Office. c) Security trust The security trust is regulated by Law 26702 The Finance and Insurance Systems General Law (hereinafter the Banking Law ). A trust is a legal relationship whereby a person, acting as trustor, transfers assets to another person, acting as trustee, for the creation of a trust estate, which shall be possessed in trust by the trustee, subject to the accomplishment of a specific purpose in favor of the trustor or a third party called the trust beneficiary. The trustee is subject to the duties and obligations set forth in the relevant trust agreement. The core element of a trust is the creation of an autonomous estate, which is different from the estate of the trustee, the trustor or the trust beneficiary and which is therefore released from and is not liable for the obligations of any of the parties. The trust property is solely subject to the payment of the secured obligations and the fees and expenses incurred by the trustee in exercising the possession in trust, as set forth in the trust agreement. If the trust agreement does not contain any provision to the contrary, the assets remaining in the trust after paying said obligations, fees and expenses must be delivered to the trustor upon termination of the trust agreement. The trust beneficiary is not required to take part in the trust agreement, but if it decides to do so, it acquires on its own behalf the rights granted to it in the agreement, which may not be altered without its consent. The trust agreement needs to be incorporated in a public deed before a Public Notary. Generally speaking, a trust may be created on any kind of property or rights. 2. In relation to the following types of assets, please provide the types of security that can be created or granted in your jurisdiction and give details of any registrations required: (a) Real estate Under Peruvian law, real estate can be subject to mortgages or security trusts. In both cases the relevant agreements need to be registered with the Real Estate Public Registry, or, when applicable, in the relevant special registries, as in the case of mining concessions, infrastructure concessions and concessions on public services. (b) Charging assets (inventory, stocks etc) Charging assets such as inventory and stocks can be subject to security interests or security trusts, and shall be registered with the Registry of Security Agreements. (c) Movables Movables can be subject to security interests or security trusts, and shall be registered in the Registry of Security Agreements in the case of not-registered movables, or the corresponding Registry of Movable Property in the case of registered movables. (d) Shares Shares can be subject to security interests or security trusts.
Registration shall be made in the Shares Registry Book of the relevant company and in the Registry of Security Agreements, or in the case of shares represented by account entries with the relevant Securities Clearing and Settlement Institution (CAVALI). (e) Rights under contracts (receivables) Though the most common alternative is to transfer said rights to a security trust, they can also be subject to a security interest. In both cases the agreement shall be registered with the Registry of Security Agreements. (f) Bank accounts Please see our comments in section (e) above. (g) Financial instruments (eg, securities) A security interest or a security trust can be created on securities. If the securities are represented by account entries, such as the dematerialised negotiable securities registered with a Securities Clearing and Settlement Institution (CAVALI), the agreement shall be registered with CAVALI. If not represented by account entries, a security interest on securities shall be created through a security endorsement. (h) Intellectual property Intellectual property can be subject to security interests or security trusts, and shall be registered with INDECOPI (the administrative agency in charge of the registration of intellectual property). (i) Plant and machinery A plant and machinery forming a production unit can be subject to mortgage or a security trust, and need to be registered with the Real Estate Public Registry. In both cases it is advisable to include a detailed list with the description of each part and equipment. If a plant or machinery can be removed from the real property without damaging or destroying the real property, said plant or machinery can be subject to a security interest, and shall be registered with the Registry of Security Agreements. (j) Other assets Other assets with a few exceptions- can be subject to security interests and security trusts, and shall be registered in the applicable Public Registry. 3. Can a trustee or security agent be used in your jurisdiction, or must security be granted in favor of all lenders? Is the parallel debt clause concept recognised in your jurisdiction? Yes, a trustee or security agent can be used in Peru. As mentioned in section 1c) above, a trustee needs to be used in the case of a security trust. Security agents are commonly used in the case of syndicated credit facilities and transactions involving different types of financing and various creditors. On the other hand, the parallel debt clause is not regulated in Peru and it is not used. It could be considered as a simulation, and be declared null and void. 4. Please explain the latest amendments to the law governing secured transactions in your jurisdiction. Are there any amendments which will be introduced in the near future (within one to two years) which might have an impact on the legal framework of secured transactions? Please also explain recent practical developments regarding secured transactions in your jurisdiction. There have not been latest amendments to the law governing secured transactions in Peru and we do not know of any amendments which will be introduced in the near future (within one to two years) which might have an impact on the legal framework of secured transactions.
Part II enforcement of security 1. Please explain briefly general rules of enforcement of security indicated in answer to the Question 1 in Part I above (excluding rules in a bankruptcy or insolvency proceeding see Question 3 below). In your answer please explain whether specific security may be enforced only through judicial proceedings or whether extra-judicial methods are also available. Furthermore, please provide estimate of costs (if they create significant obstacle in enforcement, including applicable taxes and any other duties/ costs) and timing for enforcing such security. Please also explain degree of difficulty (eg, burdensome formalities, whether enforcement requires actions of a state body) in enforcing security. Also please explain whether taking security by an entity from other jurisdiction influences possibility of establishing security and its enforcement. In Peru mortgages can only be enforced through a judicial proceeding, and the relevant real property can only be sold at a public auction upon the order of a judge, except in the case of mortgages on infrastructure concessions or concessions on public services which can be foreclosed through an extrajudicial sale as provided for in the corresponding agreement. In Peru a mortgage foreclosure judicial proceeding may take up to one year if the defendant (mortgagor) does not contest judge s foreclosure order and the proceeding ends up in the first instance. However, if the defendant contests such order and appeals the decision of the judge, and then appeals for review or annulment by the Supreme Court, the proceeding may extend to about three years. Security interests may also be enforced through a judicial proceeding, but it is quite unusual to see a judicial enforcement in this case, because extra-judicial sales are permitted, which provides creditors with a faster and more efficient enforcement. The sale process should be described in detailed in the relevant agreement. In the case of a judicial proceeding, if the sale through a public auction fails, the creditor can take over the title to the property. Security trusts are enforced through extra-judicial sales. The sale process and the duties of the trustee should be described in detailed in the relevant agreement. In the case of a security trust, Peruvian law also allows the creditor to take over the title to the trust property only when it is money. In the case of a security interest, the creditor can take over the title to the movable property if that is provided for in the relevant agreement. Timing for enforcing a security interest and security trust through an extra-judicial sale shall depend on the type of property that is being sold and the complexity of the sale process set forth in the relevant agreement, but of course it shall be much less time consuming that a judicial proceeding. Enforcement requires the prior approval of the competent state body when done in connection with mortgages on infrastructure concessions or concessions on public services. Peruvian law does not make any difference between local and foreign entities when it comes to security. Therefore, taking or enforcing security by an entity from other jurisdiction does not represent a special difficulty or limitation. But note that such an entity needs to have an attorney-in-fact in Peru to carry out all the activities in connection with the enforcement of the relevant collateral. Costs As to the costs involved, mortgages and security trusts must always be created through a public deed before a Notary Public. Though it is not required, it is advisable to create a security interest through a public deed. The fees of each Notary Public may vary based upon the extension of the relevant agreement and/or the value of the collateral. Registry rights will depend on the value of the security, but they are capped at approximately US$1,270. Taxes
There are no special taxes or stamps applicable to security enforcements; regardless of the VAT that could affect the transfer of the relevant property and the Income Tax that could affect the grantor of the security. 2. Please explain briefly specific features (if any) of enforcement of security established over following types of assets: (a) Real eestate; (b) Charging assets (inventory, stocks etc); (c) Fixed charge over movables; (d) Shares; (e) Rights under contracts (receivables); (f) Bank accounts; (g) Financial instruments (eg, securities); (h) Intellectual property; (i) Plant and machinery; (j) Other assets. Judicial enforcement Judicial enforcement of a mortgage An executory proceeding starts with the filing of a complaint that contains the demand for payment against the debtor of the principal obligation and, on a subordinate basis, the request for selling the mortgaged property in a public auction. The Civil Court Judge with a commercial sub-specialty or, in any case, the Civil Court Judge is competent to hear this type of proceedings. The Judge shall analyse whether the mortgage was created in compliance with all the formal and substantial requirements set forth by the Civil Code. The complaint must meet the requirements outlined in Code of Civil Procedures and the following documents must be attached thereto: (i) the document evidencing the security interest; (ii) the statement of account showing the debit balance of the secured obligation (debt settlement); 3 (iii) the updated commercial appraisal of the encumbered immovable property performed by two licensed engineers and/or architects, with authenticated signatures; and (iv) in the case of a registered property, the certificate of encumbrance issued by the relevant Public Registry Office shall be attached. There is the possibility to request that preliminary injunctions be issued on the principal obligor s estate in a proceeding to enforce security interests; however, this shall only be possible if the value of the collateral is not sufficient to cover the principal amount, interest, court costs and attorney s fees or other items duly supported. In order to carry out the public auction of a property, the Judge may use the appraisal conventionally performed on the property and agreed between the parties or, if deemed necessary (for the time elapsed from the date of such agreement), order the judicial appraisal of the property, designating two legal appraisers whose fees must be paid by the parties in equal proportion. The appraisal may be observed within three days following notification thereof and if the Judge or the court of appeals does not approve it, a new appraisal shall be ordered at no additional cost for the parties. Once the appraisal is approved, the Judge must call for an auction, designating to that effect a Public Auctioneer, who must state the place, date and time of the auction. To that end, he must deliver to the execution creditor a notice of auction which shall detail all the requirements to take part as bidder. The notice of auction must be published for six consecutive days in the daily newspaper charged with the publication of judicial notices of the auction venue and, in the absence of such daily newspaper, in the 3 While the determination of the debit balance is made unilaterally by the secured creditor, it must be made according to law and the secured obligation to avoid any arbitrariness. If such determination does not match the amount due, it may be modified by the Judge.
daily newspaper of the jurisdiction where the property is located. The notice of auction must be also posted in the real property itself. The base price of the auction shall be equivalent to two thirds of the appraisal value of the property, and a lower value shall not be admitted. The auctioneer shall award the real property to the bidder that submitted the highest bid. However, the property shall not be transferred to the successful bidder until the full price is paid within three days following the auction. The court ruling which transfers the ownership rights over the auctioned real property shall also order that all the encumbrances or preliminary injunctions established on the property be released and that the new property be registered with the relevant Public Registry Office. Such court ruling may also order the eviction of third parties occupying the immovable property if they were served with the execution order. If the successful bidder does not pay the balance of the price within the stipulated term, the Judge shall declare the auction null and void and shall call for a new auction. If there are no bidders on the first call, successive calls shall be made reducing by 15% the base price applicable to the last call. If there are no bidders on the third call, the execution creditor may request to be awarded the real property at the base price used in the last call, paying the excess over the value of its claim in the event that the amount of the award is greater than the encumbrance amount or the amount subject to collection (in this case, the usual practice is to request that the amount paid be retained until the court costs, attorney s fees and interest of the debt to be collected are paid in full). If the execution creditor does not request to be awarded the immovable property, it may request that new calls for auction be made until the immovable property is sold. Lastly, the Judge shall order that the interest, court costs and attorney s fees be calculated and, once such calculation is approved, it shall require the debtor to pay them, and deliver the auction proceeds to the creditor and, if there is more than one creditor, shall distribute the proceeds among them according to their rights. Judicial enforcement of the security interest on movable property The judicial enforcement may be resorted to only in the two following cases: (i) when the parties, exercising their private autonomy, expressly agree on such type of enforcement; and (ii) when, having opted for the extra-judicial sale regulated in the LGM, a term of sixty (60) days expires without the property having been sold. 4 The judicial enforcement proceeding for a security interest is the same as that explained in relation to the foreclosure of a mortgage, though with the following peculiarities. (i) Unlike the foreclosure of the mortgage, the appraisal shall not be required to enforce a security interest where the encumbered property is money or is listed in the securities or equivalent market. In the latter case, the Judge shall appoint a stock exchange broker or securities dealer for selling the property. (ii) The auctioneer shall auction the movable property at the place where they are physically located. (iii) The call for auction of the immovable property must be published for three (3) consecutive days in the daily newspaper charged with the publication of the judicial notices of the official auction venue and, in the absence of such daily newspaper, in the daily newspaper of the jurisdiction where the property is located. Furthermore, the notice of auction must be posted at the facilities where the auction of the immovable property shall be carried out. (iv) When auctioning movable property, the payment of the price must be made at the same time the auction is carried out and the property must be delivered immediately to the successful bidder. The money is deposited in the Banco de la Nación, to the order of the Court, no later than the day following the auction, under liability for failure to do so. In addition, the Judge shall render ineffective any encumbrance affecting the property and shall cause notice to be served on the pertinent public registry office (when appropriate according to the property involved) to register the record of auction and the award resolution. 4 This term is computed from the submission of the notarised letter to the debtor notifying it of the default in payment.
(v) Should there be a second and third call for auction of the movable property, they shall be published for one day only. Extra-Judicial Enforcement Extra-judicial enforcement of a security interest on movable property a) General issues The Enforcement of the Security Interests is governed by the LGM. In regulating this matter, the legislator has shown its evident intention to privilege the position of holders of secured credits, making easier and quicker the realisation of the property received as security. In accordance with the LGM, there are two different forms of foreclosure on a security interest: the judicial enforcement (analysed above) and the extra-judicial enforcement. In turn, our legislation regulates two forms of extra-judicial enforcement, namely, the extra-judicial sale and the taking over of the title to the movable property by the creditor (forfeiture clause), establishing that the form of enforcement may be freely chosen by the parties and that, in the absence of agreement, a sales procedure of supplementary application may be resorted to. The LGM establishes the possibility that the secured creditor may enforce the security interest prior to the expiry of the obligation (if there is the risk that the creditor cannot collect its claim) or after the expiry thereof (in most cases). However, both types of enforcement are carried out in the same manner. The extra-judicial sale proceeding contemplated in the LGM In view of the debtor s non-compliance with the secured obligation, the secured creditor intending to enforce a security interest through a extra-judicial enforcement proceeding must submit a notarised letter to the debtor, the grantor if different from the debtor and a representative appointed and authorised by the parties, placing on record such non-compliance. At the end of a period of three business days following receipt of the notarised letter, the secured creditor in all cases through a representative may proceed to the sale of the movable property. If, upon expiry of a term of 60 days after the secured creditor submitted the notarised letter to the debtor, the grantor if any and the representative, the sale has not been carried out, the judicial enforcement may be demanded, according to the proceeding to enforce security interests contemplated in the CPC. In the event that several encumbrances have been established on the property subject matter of the enforcement attachments, preliminary injunctions, pledges, security interests the LGM imposes on the representative the obligation to deliver to the Civil Court Judge the total proceeds of the sale of the property, if such encumbrances take priority over that of the execution creditor, within three business days following the collection of the price. If the encumbrance is subsequent, the representative shall deliver the remaining proceeds of the sale to the Civil Court Judge, providing the names of the other creditors. Finally, the LGM clearly states that in no case may the sale of the movable property given as security interest be suspended, unless the debtor pays the full debt. 5 The acquisition of ownership of the property by a secured creditor Another form of extra-judicial enforcement of a security interest is the taking over of title to the movable property by the creditor itself. This scheme is advisable if the creditor is interested in the property given as security or deems it appropriate to acquire the property to sell it subsequently on its own account. To this effect, the parties must have necessarily included a forfeiture clause in the security agreement and, under penalty of nullity, they must have inserted the value of the property of the security interest. 5 At least in principle, legal remedies or preliminary injunctions seeking to stop the enforcement should not be admitted since, otherwise, the facility and celerity of the enforcement that the LGM has deemed it appropriate to introduce would be distorted. However, this could affect the fundamental right of the party affected by the sale to the effective protection of the law.
Furthermore, the parties must grant an irrevocable power of attorney to a representative to carry out the transfer. 6 Just as the extra-judicial sale, the secured creditor intending to acquire ownership of the property must send the relevant notarised letter notifying the debtor and the representative of the default and its intention to acquire ownership of the property. Said notarised letter must also be forwarded to the grantor and/or depository, if applicable. As provided for in the LGM, for the secured creditor to be able to acquire ownership of the property, it must settle or pay the claim of the secured creditors having priority over it or deliver the corresponding amount to the Judge. In the case of encumbrances ranked lower in the order of priority, the creditor must deliver the balance to the representative for him to hand it over to the Civil Court Judge. Enforcement of the security interest created on securities As to the enforcement of a security interest created on securities, the LGM provides that the secured creditor shall be subrogated to the debtor s or grantor s rights to carry out any and all acts necessary: (i) to preserve the effectiveness of the debtor s title and rights; and (ii) to collect or dispose of the securities in the event of default. In this regard, the enforcement mechanisms described above do not apply to this type of security interest. Enforcement of the security interest created on credits In accordance with the LGM, no agreement is required for the creditor to acquire the ownership title to the credits given as security. In the event of default, the secured creditor is empowered to acquire the credits or transfer them to a third party pursuant to the regulations governing the sale. Eextra-judicial enforcement of a trust In Peru, the trust is enforced through extra-judicial proceedings as established in the trust agreement, and the trustee itself is in charge of the enforcement. This is due to the fact that the trustee holds the possession in trust of the assets or rights transferred to the trust estate. Accordingly, the trustee may transfer the assets and/or rights in its possession provided that this is expressly stated in the trust agreement. Therefore, besides the parties will, there is no legal requirement that determines the form of sale of the assets, with the type of trust being irrelevant. The main benefit of the extra-judicial enforcement of the security interest established on the property is that the enforcement is carried out based on the market value and thus the property does not devaluate, as it does happen in the judicial enforcement (due to the time that the proceeding takes and the reduction of its value as a result of the calls for auction made for purposes of the coercive enforcement). 3. How does a commencement of bankruptcy or insolvency proceeding influence the rights of the security holder to enforce its rights? In bankruptcy or insolvency proceedings, what are the suspect periods, is claw-back possible, and what other types of rights (tax debts, employees, etc.) have preference over security granted? A mechanism established in the General Law of Bankruptcy (to protect the equity of a debtor company that becomes involved in bankruptcy proceedings) is by ordering the suspension of the enforceability of all its obligations which are outstanding as of the date of publication of the commencement of the bankruptcy proceeding. In this regard, once the existence of a bankruptcy proceeding is declared and disclosed, the judicial or extra-judicial enforcement of any security created by the debtor is suspended. However, there are exceptions to such rule in those cases where the property has been furnished as security interest to back third party obligations or obligations originated subsequently to the date of publication, in which case they may be enforced. 6 This power of attorney must be evidenced by a instrument recorded by a Notary Public.
In addition, the unenforceability of the debtor s obligations does not prevent creditors from going after the assets of third parties that have established collaterals or personal security interests in its favor, which shall be subrogated to the original creditor as a matter of law. Therefore, the enforcement proceedings filed against such third parties shall not be affected by the involvement of the secured debtor in bankruptcy proceedings. It is important to point out that a security trust shall not be affected by a bankruptcy or insolvency proceeding since as mentioned above it creates an autonomous estate. Therefore, the creditor may enforce the security trust anytime without any limitation. Suspicion period Certain acts executed by the debtor in the year prior to the date of commencement of the bankruptcy proceeding may be declared ineffective. This period of time, known as suspicion period, implies that the encumbrances, transfers, agreements and other legal acts, executed either under gratuitous title or for valuable consideration, may be declared ineffective against the creditors in the bankruptcy proceeding, if they: (i) were executed either under gratuitous title or for valuable consideration, but not related to the normal development of the debtor s activity; (ii) affect the debtor s estate; and (iii) were executed or entered into within the aforesaid one-year period. In this regard, a judge may declare ineffective the establishment of any type of security interest created during the above-referred suspicion period by a debtor, if such security interest is considered to have been established to commit a fraud against the creditors. However, such encumbrances cannot be declared ineffective pursuant to the provisions of the law, if the following requirements are met: the encumbrances are related to the usual and normal operation of the debtor s business; they have not caused damages to the debtor s patrimony; and they are reasonable. All of these requirements would be analysed by a court, which would be competent to declare the ineffectiveness of the encumbrances if any of said requirements are not met. The respective claim can be filed by any creditor, the receiver or the administrator of the debtor. The claw back is possible under Peruvian law. Regarding the priority over security granted, the General Law of Bankruptcy establishes that: In Bankruptcy procedures the preference the order in the payment of credits is the following one: 1. salaries and fringe benefits owed to workers, amounts not paid to the Private Pension Fund System or to the pension fund systems administered by the Government Pension Fund Management Agency (ONP), the Fisherman s Benefits and Social Security Fund or other pension fund systems created by law, as well as the interest and expenses arising from any of the above items; 2. unpaid contributions to the Peruvian Health Social Security, including interest, penalties, court costs and surcharges derived therefrom, and maintenance payments; 3. credits secured by mortgage, security interest, antichresis, warrants, liens, or preliminary injunctions encumbering the debtor s property, provided that the pertinent security interest has been furnished or the pertinent preliminary injunction has been established prior to the date of publication of the commencement of the bankruptcy proceeding. Said security interests or encumbrances, if applicable, must be registered with the registry prior to such date to be enforceable against the group of creditors. These claims maintain this position in the order of priority even when the secured property is sold or awarded to pay claims ranked in a lower position, but only up to the amount of realisation or award of the property that secured the credits.
4. tax credits granted by the State, either taxes, fines, interest, default interest, court costs and surcharges; and 5. credits not comprised within the previous categories; the portion of the tax credits that, pursuant to Section 48.3, Item d) of the LGSC, are transferred to the fifth position; and the balance of credits ranked in the third position that exceed the value of realisation or award of the property that secured such credits. In this regard, it is essential for the creditor to keep control of the amounts of the claims ranked in the first and second positions before and after a financing is granted; otherwise, in the event of winding-up, the property received as security could be taken to pay preferred claims. It is particularly important to bear in mind that labor and pension fund credits (such as fringe benefits, etc) are not filed with any type of registry and, hence, it is uncertain whether the security interest furnished by a company prior to the bankruptcy proceeding actually backs the credit granted. Thus, if a bankruptcy proceeding starts, the labor and pension fund credits shall have priority over the collection of other secured credits. In order to prevent this situation, it is necessary for the lender of a credit to previously know the labor contingencies of the company and, for that purpose, the conduction of a legal due diligence is often required. 4. Please explain briefly specific features (if any) of enforcement of security established over following types of assets in a bankruptcy or insolvency proceeding: (a) Real estate (b) Charging assets (inventory, stocks etc) (c) Fixed charge over movables (d) Shares (e) Rights under contracts (receivables) (f) Bank accounts (g) Financial instruments (eg, securities) (h) Intellectual property (i) Plant and machiner; (j) Other assets. The most important thing to bear in mind is that in a bankruptcy or insolvency proceeding, no guarantee or encumbrance, over any good, can be enforced since the moment the initiation of the bankruptcy procedure is published. This is the reason we strongly recommend the use of a security trust. 5. Are there any specific features or problems of enforcement proceedings if the security is granted to a trustee or security agent or the parallel debt structure is used? There are no specific features or problems of enforcement proceedings when the security is granted to security agent or by using a trustee. Regarding the parallel debt structure, as explained above, it is not recognised under Peruvian jurisdiction. 6. Please explain the latest amendments to the law governing secured transaction in your jurisdiction in relation to a bankruptcy or insolvency proceeding. Are there any amendments which will be introduced in the near future (within one to two years) which might have impact on the legal framework of the enforcement of secured transactions in the light of insolvency law? Please also explain recent practical developments regarding secured transactions in your jurisdiction in relation to insolvency law. The latest amendment to the law governing secured transactions in the Peruvian jurisdiction in relation to a bankruptcy or insolvency proceeding that is worth mentioning is the amendment to article 67.3 of the General Law of Bankruptcy. This article states that the effects of the restructuring plan approval do not release third guarantors of the debtor, unless the beneficiary creditor of the guarantees constituted by those guarantors have voted in favor of the Plans approval or that those guarantors have anticipated the release of the guarantees given by effect of the Plans approval. We do not know of any amendments which will be introduced in the near future which might have an impact on the legal framework of the enforcement of secured transactions in the light of insolvency law.