Regulatory Alert – January 2025

The Resolution Guidelines of OSINERGMIN’s Dispute Resolution Tribunal are approved

On January 3, 2025, it was published in the Official Gazette “El Peruano” the Resolution of the Plenary Chamber of the Dispute Settlement Tribunal of OSINERGMIN N°01-2024-OS/TSC that approves the Resolution Guidelines of the Dispute Settlement Tribunal of OSINERGMIN (“Guidelines”) which aim to provide a guide to agents regarding disputes within the jurisdiction of the Collegiate Bodies (“CC”) and the Dispute Settlement Tribunal (“TSC”). The Guidelines reflect the interpretation criteria used by the TSC and the CCs.

 Below, we will comment on some of the guidelines contained in the Guidelines:

I.Guidelines on matters of the electric sector:

1. First, clarifications are established regarding the competence to resolve disputes regarding the payment of compensation for violations of the NTCSE, according to the assignments of responsibility and calculation of compensation made by the COES. It is indicated that, although the COES has the competence to resolve disputes, assign responsibilities for violations to the NTCSE and calculate the corresponding compensation, the OSINERGMIN is competent to supervise compliance with the provisions of the NTCSE and verify the payment of compensation in accordance with said standard.
2. Likewise, the CC and the TSC determine that the dispute resolution bodies of OSINERGMIN are not competent to declare the effective date and commercial execution of a supply contract and the determination of undue payments. This is because there is no norm or provision that establishes the competence of the TSC to: (i) exercise a normative integration function to modify the opportunity of the commercial start-up provided for in the supply contract; (ii) qualify or declare whether the payments made in the claimed period were improper payments.
3. On the other hand, regarding the declaration on the interpretation of a rule of a regulatory nature, the Guidelines indicate that, according to the TSC, it is not up to the CC to issue resolutions on claims whose sole purpose is to declare the way to interpret or apply a rule, without there being a conflict of interest that requires such interpretation. In this sense, the dispute resolution bodies of OSINERGMIN are only competent to resolve concrete and specific disputes between the agents under the scope of their competence, in cases where there are conflicts of interest.
4. In addition, the Guidelines state that the CC and the TSC concluded that it is not within the competence of the dispute resolution bodies of OSINERGMIN to determine whether a metering system of a free client presented inadequate conditions and whether the refund or reimbursement of excess payments is appropriate.
5. Finally, it was established that the following matters are within the competence of the dispute resolution bodies of OSINERGMIN:

• Disputes related to the payment for withdrawals of power and energy without contract, according to the monthly valuations made by the COES.
• Recognition of the status of free user.
• Claims of free customers for excessive billing of the amounts of certain items billed by their supplier. It should be pointed out that the prices applied to the invoicing are not in dispute, but rather the way in which the amount demanded has been determined.
• The determination as to whether the distributor has the obligation to coordinate with the free customer of the supplier, prior to charging for capacitive energy.

II. Guidelines on matters related to the hydrocarbons and natural gas sector

1. According to the pronouncements of the CC and the TSC, it is determined that the dispute resolution bodies of OSINERGMIN are competent to resolve the following issues:

• The determination of the transport contract to which the nomination of natural gas volumes should be imputed.
• Claims for re-invoicing of the natural gas distribution service, when charges are made based on a different tariff category.
• The unjustified refusal to recognize the same conditions for equivalent services granted to other agents.
• Claims related to billing for the distribution service due to a reduction in the volumes of natural gas transported as a result of a declaration of emergency.
• Claims related to billing for the services of supply, transport and distribution of natural gas by pipeline network, due to non-compliance with the Natural Gas Distribution Concession Contract, except for those aspects related to the incorporation of criteria or precisions to the methodology foreseen in the billing procedure.
• Claims regarding the restitution of the contracted tariff category for the natural gas distribution service.

For further information, please contact Veronica Sattler (vsattler@estudiorodrigo.com),  Alejandro Manayalle (amanayalle@estudiorodrigo.com) y/o Margarett Matos (mmatos@estudiorodrigo.com).