• Interview to Juan Guillermo Lohmann
  "Magistrates act either with a lack of knowledge or with ignorance"

Juan Guillermo Lohmann, a jurist and author of various publications on arbitration, has also voiced his discomfort over the recent decisions of some judges on arbitration jurisdiction.

Accordingly, he stressed that the Constitution safeguards and protects the submission to arbitration, the arbitration proceeding and the arbitration award, within the scope established under the General Arbitration Law.

It has been stated that the determination of some judges to interfere in arbitration proceedings would fatally wound the institution of arbitration, do you share this concern?

We should obviously look into the type of decisions which are being dealt with. It may be valid, for instance, that a judge overrules an arbitration motion, a situation which is regulated by the Code of Civil Procedure (CPC). However, broadly speaking, there are two aspects that should be beyond all doubt: the General Arbitration Law is subsequent to the Code of Civil Procedure, and it is also a special regulation. Therefore, in case of doubt as to which law prevails, preference should be given to the General Arbitration Law.

Therefore, while arbitrators remain arbitrators, it is they, and not the judges, who are authorized to decide on their jurisdiction. A court may only review the performance of arbitrators a posteriori, through the remedy to annul awards, and never while the arbitration tribunal is fulfilling its duties.

Does this situation represent a lack of knowledge from the judges who believe that just as the ordinary court jurisdiction is exclusive and excluding, the same is true for arbitration given that it is an institution protected by the Constitution?

It seems that, unfortunately, there is such a lack of knowledge or even ignorance. The Constitution safeguards and protects the submission to arbitration, the arbitration proceedings and the award, within the scope established by the General Arbitration Law. Therefore, once the arbitration proceeding has been initiated, the questioning of the arbitration tribunal's competence may only be submitted to the judgment of the arbitrators themselves, and be decided only by them.

We are referring to the well-known kompetenz-kompetenz principle, established in Article 39 of the General Arbitration Law, which has the same rank as the CPC, is subsequent thereto and should be given preference given its special nature.

May the Judiciary's actions, through its judges and courts, which include disavowing arbitration agreements in force, dictating precautionary measures to paralyze an arbitration and admit criminal accusations against arbitrators, affect the image of legal certainty in Peru?

Indeed, these actions affect legal certainty and this is a very serious issue. Fortunately, these are isolated situations, but not less dangerous, specially if higher bodies (the Superior or Supreme Courts) do not act swiftly to correct them by reprimanding or warning those who act foolishly.

The validity of an arbitration agreement may only be discussed by the arbitrators themselves or through a motion, and in this case, a judge may perhaps commit mistakes. However, what seems to me a gross error, and without there being a chance of thinking that it is a wholesome mistake, is that a judge issues precautionary measures to paralyze the activity of an arbitration tribunal, or that criminal accusations are admitted against arbitrators while acting in such capacity, because as arbitrators, they exercise their duties and are fully empowered to do so.

While exercising his duties, an arbitrator has the same authority as a judge. I believe that it is utterly irrational that a magistrate issues a precautionary measure so that another judge is disqualified from hearing a case, and still more irrational that a criminal accusation is admitted in this respect.

In these cases, judicial interference constitutes a bad precedent because it opens the door for any of the parties that intends to hinder an arbitration proceeding to start an amparo proceeding or any other similar action against an on-going proceeding, in order to obtain a court decision that hinders the arbitration?

If this is not corrected, it will obviously cause a disastrous precedent. I insist: the validity of an arbitration proceeding questioned on the grounds of lack of competence of the arbitrators or any other reason, may only be reviewed after the award has been issued.

In addition to the request to the president of the Judiciary to defend the institutional nature of arbitration, which actions should be adopted to avoid this harmful interference?

The basic request would be that judges become well-acquainted with the General Arbitration Law. The rest is simply a question of good sense and honesty.

(" El Peruano" Official Gazette, Legal Section, June 16, 2005)

• "Mining Royalties:
  Constitutionality: does it really matter?"
  Luis Carlos Rodrigo Mazuré

Congress has approved a senseless motion, which has been baptized as "royalties" and which has no relation with such institution. Therefore, it has been proven that there are many who have lack any knowledge regarding the Constitution or mining laws. Neither the Constitution nor mining regulations allow distributing "royalties" as own resources. For sure, the Chileans are now celebrating a national holiday.

Members of Congress must act within the limits established by the Constitution (Art. 45°) and the law. This circumstance forces the members of congress to be aware of constitutional provisions, which establish that: "natural resources, whether renewable or non-renewable, constitute the Nation's heritage" (Art. 66°).

These resources, I reiterate, represent the Nation's and not the State's heritage. This means that we, you and I, are the owners of these resources. Therefore, it is illegal that the members of Congress consider that the resources obtained may be distributed among the authorities of their territories.

The Chilean draft law on royalties observes this rule and stipulates that its resources will be only earmarked to "the promotion of innovation, research and development in order to replace the capacity to generate future revenues while the resource is exhausted or loses its value.". Would Congress have approved this draft law, if the resources were only to be used to improve technology as in the case of Chile?

We have lost 40 years of development due to the same kind of politics that predominates these days: to divert wealth to the bureaucrats and hinder or eliminate private activity. They are now trying to do the same by hindering the privatization of Las Bambas, Michiquillay and Bayobar.

Why does the opposite occur in Chile? For one reason: there is a consistent policy which favors private investment, legal stability and the observance of the law.

This is why Chile will not apply royalties in spite of having a lower tax burden than Peru. Nevertheless, the idea of applying royalties has been sold to Peruvian congressmen. Why don't we wait for the Chileans to apply them first?

In Chile, this uncertain draft law will only become effective in 2007, and only for new concessions. They are not stupid; they want to know first what will happen to us.

In addition to the lack of constitutionality of the draft law that has been passed, there are other fundamental differences between Chileans and Peruvians, that is, Peruvians and their relatives, and, obviously, the State.

The Chilean case involves a tax which may be deducted by the holders of concessions and their investors. It will be enforceable on the new concessions, observing the rights acquired and legal stability.

The Peruvian notion of royalty attempts to be a "consideration" in favor of the State, transgressing the Constitution, because the Nation is the owner of such wealth. The concept of "Nation" is different from that of "State", which is the Nation's legal organization. From a legal standpoint, the person who is not an owner, is not entitled to talk about consideration.

Neither is this royalty legally enforceable on the concessionaires with rights in force and to whom the Constitution and the Mining Organic Law offer protection against the payment of this wrongly denominated "royalty", as on those who pay royalties under a contract. The rights acquired by those who have concessions where capital and work has been invested, prevent the enforceability of economic burdens, which are not taxes, and which did not exist at the time of granting such rights.

The Constitution (Art. 66), when referring to those renewable and non-renewable resources, points out that "the organic law establishes the conditions whereunder they may be used and granted to individuals. The concession awards its holder an in rem right, which is subject to such regulation". Moreover, the Mining Organic Law states that "the concession awards its holder the right to explore and exploit the mineral resources granted, being this right irrevocable provided that the holder complies with the obligations required by the law for it to be effective".

Congress is obliged to respect the rules of the game as in any other country where law, and not arbitrariness, governs.

("El Comercio" Newspaper, June 4, 2004)

• Interview with Humberto Medrano Cornejo
  "The Tax Administration should not be draconian"

The press has recently highlighted a negative perception of a majority of the citizenry towards certain tax administration procedures, which are understood as extremely severe and even abusive.

In order to clarify the outlook on this issue, Jurídica talked to the prestigious professor and tax expert Humberto Medrano Cornejo.

You hold that the relationship between the tax administration and taxpayers must be conceived as a law relationship, and not as a power relationship. However, this idea is not in accordance with the coercive image the public has of the tax administration, even more with the recent incidents related to the SAT (Tax Administration Service).

There is an interpretation error made by the officers who believe that they will increase the administration's collection if they act in a draconian way. In no part of the world, tax administration officers win sympathy contests, that is very clear, but they do deserve respect and consideration because they act with justice.

However, in the case of SAT, specifically, when a car is seized from a person who has not paid the appropriate tax, for instance, the vehicle tax, it occurs that, after canceling the debt, (if there was an outstanding payment), this person has to go through an ordeal to recover his vehicle, when the sensible thing to do is to immediately proceed to return the vehicle to the owner. In this case, I believe that there is an extremely serious lack of understanding on the part of SAT officers. Far from it, the coercive execution officers from SUNAT (National Superintendence of Tax Administration) are more considered and it is possible to speak with them and reach a solution.

There should be a change of attitude and it is necessary to build bridges with the taxpayers, because, in the end, they are the ones who finance the actions and the development of city councils and of the State, as a group.

Now then, from the perspective of the Peruvian Tax Administration, it is evident that a great change has taken place with regard to the former General Contributions Bureau, given that now SUNAT's personnel is more specialized.

The criticisms are generally directed towards making interpretations that favor the tax administration, and this is not always fair. The ideal thing would be that supervisors are absolutely impartial and that they may even detect or establish the existence of excess payments and order their refund, which does not often happen these days. I believe that we will reach a good destination when the administration itself refunds those payments, having noticed that there is an undue or excess payment on the part of the taxpayers.

There are even times when not only money is not returned to the taxpayer, but rather applied to future tax obligations.

The administration has achieved through the amendments made to the Tax Code to gradually eliminate the guarantees or interpretations the Tax Court had issued in favor of taxpayers, particularly in the case of sanctions.

I believe that there is a distortion in the approach, by thinking that what it takes to be a better officer is calculating a greater debt, or rejecting the taxpayers' petitions. They do not realize that such actions make the taxpayer resentful, because he feels that in spite of complying with his obligations, the tax administration or its officers are hostile towards him.

A classical example is when taxpayers declare losses for an amount exceeding the actual figure (for a variety of reasons), and SUNAT imposes a sanction thereupon, even though it has not suffered any damage.

Which changes do you believe are necessary for our current tax laws to balance the taxpayer's and the tax administration's positions?

The first change is related to the accrual of interests against the taxpayer. The Tax Code establishes or grants a certain term to the Administration to make a statement on the claims. However, upon the expiration of the term, the Administration fails to issue the appropriate resolution and shows no concern at all for this failure, given that, regardless of the date of the resolution, it will always charge the taxpayer interests for the time elapsed between the date of payment and the actual date of payment after the tardy resolution.

However, looking carefully into this case, the taxpayer should not be charged these interests, because, strictly speaking, the administration is the party in default, given that the term to issue a resolution has expired. It is very comfortable for a tax creditor to say, "it doesn't matter, I won't charge him, I won't issue a resolution and when I finally do so after a lengthy period of time, that's when I'll collect the interests".

This issue ought to be necessarily corrected. Another issue is the exaggerated importance given to formalities, when we should aim at the substance, at the essence. The Administration frequently invokes Rule VIII of the Preliminary Title of the Tax Code, which establishes that substance should prevail over the form. Well, if this is so, the taxpayer could also invoke the same principle when the Tax Administration objects to the existence of certain types of income, because the formal requirements are not met, in spite of having proven that such income was actually generated.

This may be illustrated with the following classical example: if the sales register is legalized after the term prescribed or is not legalized at all, the tax credit derived from the acquisitions made will be rejected by the Tax Administration. However, it is obvious that I have been submitted an invoice by my supplier and that I have been charged the VAT. It is clear that I have paid the VAT. However, the Tax Administration will not consider this payment to be a tax credit because the sales register has not been legalized, has been legalized out of time, or some other formal requirement was not met. Under this assumption, a fine should be applied for having failed to legalize the register, but the tax credit should not be underestimated because the seller already paid the VAT and the Tax Administration knows this. Therefore, the Administration should not make use of formalities to cause this damage to the taxpayer.

Do you believe that the concept of statutes of limitation issue is clear?

Specifications on this issue are yet to be introduced. In general terms, the lapsing of the statutes of limitation takes place at the expiration of a four-year period as from January 1 of the year following the filing of the tax return or the origin of the obligation. Therefore, theoretically, if this time has elapsed, the company or the taxpayer is authorized even to destroy the documentation from that period. However, all of a sudden, expenses are charged or there is a deduction originating in a period prior to the four-year term.

For example, in the case of depreciation, what was the cost basis of the original cost? The one in force six years ago, and the depreciation has been carried out based on such value every year. Despite the lapsing of the fiscal year in which the cost basis was established, the Administration may attempt to reopen this fiscal year in order to analyze whether the cost basis used is correct or not. I believe that such fiscal year should not be reopened for any reason whatsoever.

Another example could be that of bad debts, which were provisioned six years ago. I don't see why that fiscal year may be reopened. Another extreme case is the loss carry forward: I suffered losses six years ago, I have been carrying them forward, and it is not possible that after the expiration of the term prescribed by the statutes of limitation, the Administration attempts to raise objections against the amount referred to a fiscal year that has already lapsed.

I find it impossible that the slow actions of the Tax Administration result in damage to the taxpayer, let's remember that there is a lengthy term to perform a review on the taxpayer's accounting records, and if no such review is conducted during this period, he is entitled to consider that all his actions have been righteous.

TAXES AND INVESTMENT

What is the importance of the tax regulatory framework to promote foreign investment?

It is fundamental. However, the respect that tax authorities should have towards the rights of foreign taxpayers is as important as the tax structure for foreign investment. I am a strong supporter of tax stability agreements, because, unfortunately, in Peru, soon after the issuance of regulations aimed at the promotion of certain economic activities for a certain term, these regulations have been annulled, and this represents a true disappointment to those who invested being confident that the terms established by the law would be observed.

This compels us to execute stability agreements which are at least reliable in terms of observance, even though in many cases there has been the need to resort to arbitration tribunals, because, despite the existence of stability agreements, the Administration has tried to undermine them. This is the type of actions that should be eliminated.

Are you referring to political interference in the Administration's decisions?

In this connection, it is inconceivable that some politicians attempt to interfere with the Tax Court's decisions, as well as with the decisions of the Tax Administration. This situation was carried to extremes when the Congress summoned the members of the Tax Court (TC) to explain their resolutions, as though it were perfectly natural to summon a judge to explain the meaning of any of his decisions, or to summon the members of the Superior Court for the same purpose. This has never happened in Peru before.

The TC is autonomous and its members, supposedly, are qualified and may only respond to the Judiciary if the taxpayer or the Administration challenges their resolutions. However, it is unconceivable that the Congress or any political power tries to interfere and question the TC resolutions.

A core issue here is the reliability, the safety offered by the institutions. This doesn't mean that decisions will be always issued in favor of the taxpayer, but rather that the resolution to be issued is in line with the legal terms, but, above all, that care is taken to prevent institutions from mutually interfering in their affairs. I believe that the TC's autonomy should be observed, just as the decisions of the judges should be respected, and should there be any observation, this issue should be discussed through the appropriate channels.

Elements of a healthy tax policy

1.- Regulations should be stable, specially in the case of four taxes: import duties, Income Taxes, VAT, and the Excise Tax. For example, the additional advance payment of the Income Tax that the Constitutional Court had to declare unconstitutional is harmful. I don't understand why a tax of this nature was created to be then replaced by a very similar tax, under a certain shade, in order to avoid being disqualified as unconstitutional. I believe that a clearly regulated, small group of four taxes will avoid the smallest possibility for misinterpretation.

2.- An administration that respects the rights of the taxpayer. If the administration is obliged to make a statement within a certain period, this term should be observed. If, due to the procedural burden, it is unable to do so, this should not be detrimental to the taxpayer. Therefore, it is necessary to amend the TC.

3.- A Tax Code that does not establish excessively severe sanctions. A sanction should only be imposed if a true damage has been caused to the State.

PROFILE

• Humberto Medrano Cornejo is considered one of the most prominent tax lawyers in Peru. Since 1966, he has served as head professor at the Law School of Pontificia Universidad Católica del Perú, where he gives a variety of courses regarding his field of expertise. Recently, the Alumni Association of such university honored him as "Distinguished Alumnus", in recognition of his outstanding professional and university teaching career.
  
• He founded, together with Luis Carlos Rodrigo Mazuré and the late former Minister of Justice and congressman Enrique Elías Larosa, one of the most prestigious law firms in Peru and Latin America: Rodrigo, Elías & Medrano Abogados, which this year celebrates its 40 th anniversary, and currently employs 70 top lawyers.
  
• The significant social work carried out by this law firm should be highlighted, given that it has granted annual comprehensive scholarships for over a decade to finance the university studies of those who have limited means to afford their education.

("Jurídica" Law Review, Legal Analysis Supplement, "El Peruano" Gazette, June 21, 2005)

• "The problems of LBOs in Peru"
  Eduardo López Sandoval

Not long ago, some clients requested counsel on the legal structuring of a transaction aimed at the acquisition of a Peruvian company. A great progress had been achieved in the negotiations and the price of the transaction had been in fact agreed. This price, however, was established based on the premise that a major part of the financing would be backed up by the assets of the target company itself. With such a guarantee, the acquirer's leverage costs had been reduced and its expected rate of return had reached the level sought.

Leveraged Buyout transactions, as the one put forward, however, are not possible, given that Article 106 of our General Business Corporations Law bans a corporation from granting loans or furnishing guaranties in favor of a third party in order for it to acquire shares representing its capital stock. This inconvenience was finally resolved by modifying the structure initially agreed on a preliminary basis by both parties, in order to achieve a scheme that combines alternative guarantees and complex agreements among shareholders. However, the initial scheme (which, in principle, was the most efficient one for the parties) was not implemented due to a legal prohibition. Even though in this case it was possible to pull the transaction through, many other cases do not meet the same fate.

Empirical studies have proven that transactions involving changes in the corporate control are positive for corporations in general, given that they usually generate value and allow an efficient allocation of resources and assets, in addition to laying the foundations for a corporate control market that contributes to the reduction of agency costs adversely affecting the market value of companies. Therefore, markets such as the American one do not establish or encourage this type of restrictions: Leveraged Buyouts are accepted, while only ensuring that administrators observe their duties of diligence and loyalty.

In the United States, the general perception of a Leveraged Buyout is not very far from the acquisition of an asset through leasing, where the purchaser projects the return of the asset and its sufficiency to cover the respective installments. Other jurisdictions, however, do recognize substantial differences, basically: (i) the machinery acquired under the form of leasing does not represent any debt (there are no creditors); and (ii) it is fully owned by the acquirer (there are no minority owners).

This distinction served precisely as a basis for the prohibition. One of the countries that reflect this tendency is England, where the development of the concept of prohibited financial assistance has had a major influence. However, the initial harshness of the prohibition has abated as a result of the various exceptions that have been progressively introduced. Thanks to this, the development of LBOs in Europe became possible. Only in Italy, these transactions were set aside, by keeping a strict regulatory framework which, coincidentally, is almost identical to ours. The uncertainty generated by such regulation blocked the development of LBO transactions for over ten years, until Italy finally passed clear and specific regulations in this regard and which are in force since 2004. The message, therefore, seems to be clear: "Let us learn from the Italian experience and search for a legislative solution that provides legal safety and allows for the development of this form of acquisition, without overseeing the interests of creditors or minority owners".

("Gestión" Newspaper, September 14, 2004)

• "The neglected and vulnerable social environment:
  Why is mining investment in danger?"
  Luis Carlos Rodrigo Prado

Peru has an enormous geologic wealth that ranks it among the most appealing destinations for mining investments. Just as in the case of Chile or Australia, we have been favored by nature.

However, unlike these countries, we do not use this strength intelligently to attract all possible investment, so that well-paid jobs are increased in the poorest areas, the essential infrastructure that facilitates the development of other activities is built and the economic movement of goods and services required by the new projects is increased several times over. Far from it, we seem to be condemned to letting a violent minority manipulate us.

It has been proven (and Chile represents a familiar example) that it is perfectly possible to exploit mining resources while complying with the highest environmental protection requirements and social liability standards which, through the generation of economic activities that survive once the exploitation of the resource has ended, guarantee the sustainable development of the populations related to the projects. Antamina is a good example.

This is not only due to the fact that companies are convinced that it is essential to have the social and environmental authorization to operate, but also because it is not possible to obtain financing without complying with these standards, which is reflected in the value of their shares at the international stock exchanges where they are listed.

Nevertheless, we continue to waste opportunities, and now that the prices of metals will allow to attract more investments here than any other country, we continue to accept that this prospect is frustrated from different platforms and through different means.

On the one hand, national and foreign organizations hiding behind an alleged ecologic and social concern, conceal a political agenda that makes the existing fear and distortion of information an effective form of manipulation to stir up the ancient distrust of Peruvian settlers.

On the other hand, various authorities adopt positions and enact regulations that, as a result of the informal way in which they are put forward and enforced, destroy the confidence and stability that has cost so much to generate.

Examples of the first situation are striking cases such as Tambogrande or Río Blanco, or a more recent one, the Cerro Quilish project.

It is possible that mistakes have been made in the social-environmental management of such projects, but all those cases show that violence and agitation generated with premeditation to thwart them responds to a political strategy of sabotage on investment.

Both the authorities and the population are being manipulated so that they consciously or inadvertently start playing this game that tries to keep our country in a backward state that contributes to spread the disenchantment from which others benefit.

If law is not enforced, this violent form of "demanding" the performance of obligations which compliance is assured by the companies themselves will become extensive to other projects such as Las Bambas.

Moreover, it is clear that the Congress of the Republic has the power to analyze and enforce a variety of regulations and requirements, observing, however, the existing legal framework.

Any isolated attempt to do this, without understanding the positive and negative effects that this generates in various areas is not justified, much less given the destabilizing objectives that deny the validity of rights granted by the State itself.

This significant debate may not be driven by demagoguery or the expectation of easy votes, but rather, as our neighbors have reproached us, by a high technical standard and global development strategy that allow us to improve the living conditions of our fellow countrymen and women.

("El Comercio" Newspaper, September 15, 2004)

• "Ex-officio evidence in amparo proceedings"
  Fabrizio Castellano B.

The new Code of Constitutional Procedure, enacted by Law N° 28237, includes some very important provisions, particularly, the one established in the second paragraph of Article 53 which refers to the judge's authority to produce evidence with the following wording: "If deemed necessary by the Judge, he will order the production of evidence considered to be essential, without prior notice to the parties..." . In our opinion, even though this is a regulation that was already included in the previous law in force, it contains points that require clarification, otherwise, it may generate certain situations that could jeopardize the right to obtain effective court relief.

As a reference, it is interesting to point out that Article 194 of the Code of Civil Procedure, just as the regulation under comment, establishes the magistrates' powers to produce ex-officio evidence. It is understood, of course, (and it is now a current practice in civil proceedings), that if ex-officio evidence is to be produced, the parties should be served notice in order for them to make a statement in such regard, and not to object to such production (something which they are not authorized to do), but to put forward to the judge their own considerations with regard to such means of proof. It is obvious that this allows the judge become aware of the opinion of both parties with regard to the ex-officio evidence ordered and its relevance to issue a ruling on the case.

As it has been seen, unlike the above-mentioned regulation, the Code of Constitutional Procedure allows the judge to order the production of evidence, without informing the parties of such decision. This means that the parties to the proceeding may not make a statement with regard to the evidence produced, risking their right to effective court relief, given that the parties are entitled to make a statement with regard to the means of proof that will be appraised in order to settle the controversy. If this regulation is applied, the following may occur:

A sentence is issued without the parties having realized the existence of a piece of evidence which may tip the balance in favor of either side.

One of the parties becomes incidentally aware of the decision of the judge to produce a means of proof and thus, may have an influence on the Court's appraisal thereof, without the opposing party being aware of this situation.It seems as though the current wording of the regulation under comment renders these situations likely to occur, which would put one of the parties in a more advantageous position than the other party. The risks are unquestionable. It is evident that the principle of equity could be jeopardized and the court may issue a decision that is not necessarily based on a true valuation of the means of proof produced.

In all other respects, we must not overlook the fact that the right of defense offers the parties the possibility to put forward their arguments, know the arguments of the opposing party, and the content of the case file, as well as to make a statement on the evidence produced therein.

Suggestions

Based on the above explanation, the right to obtain court relief may be guarantied if the following matters are specified in the appropriate regulations:

Any failure to inform the parties of the decision to produce evidence should be avoided insofar as it is possible, by making it clear that it is an "exception to the rule". It would be convenient that the parties to the proceeding become aware of the means of proof to be produced and evaluated by the judge when handing down a decision. This implies that the parties should not be served notice when required by the specific nature of the case (irreparable damages, impossibility to serve notice, loss of evidence, etc.);

The resolution ordering the ex-officio production of evidence should only specify why the means of proof are essential to issue a decision, but should also indicate the motive for not serving notice upon the parties of the decision to produce certain evidence;

The parties should be informed that the judge has reserved himself the power to produce evidence ex-officio, since the means of proof offered were not sufficient to hand down a decision on the case in dispute, thus postponing the decision with regard to the evidence to be produced.

These simple specifications would avoid unnecessary risks that could be considered to be violations against the right to effective court relief that would lead to declare the sentence null.

The fact that the ex-officio production of means of proof could lead to a significant delay in handing down a decision should not be disregarded.

Conclusions

We should all become aware that if the power to produce ex-officio evidence without serving notice upon the parties is mainly aimed at securing the swiftness of amparo proceedings (which certainly constitutes a current problem due to the existing delay), we must see to it that the procedural terms established in the regulations are met and that unnecessary means of proof are not produced.

If the judge ordered the production of a means of proof without the parties being aware thereof, it should not be inferred from this action that the parties were not informed of its results within a term sufficient to make a statement before the sentence is handed down.

Without doubt, the judges should act with outmost judgment and care when enforcing this authority granted by the Code of Constitutional Procedure. Therefore, judges should bear in mind the purpose of court proceedings and the parties' rights to make a statement on a timely basis. Swiftness itself does not represent a justification for overlooking these rights, which, paradoxically, are acknowledged by the Constitution.

("El Peruano" Official Gazette, January 17, 2005)