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Peru: New rules for the prior consultation process in the electricity subsector

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In brief

On 13 March 2024, Ministerial Resolution No. 104-2024-MINEM/DM (“Resolution“) was published. It approves the administrative measures that are subject to the prior consultation process in the electricity subsector. This Resolution annuls the regulations contained in Ministerial Resolution No. 209-2015-MEM/DM (“Resolution 209“), only with respect to the electricity subsector.

Although the Resolution maintains the cases that had already been contemplated in Resolution 209, two administrative measures were added, which we have highlighted in the following table:

Notwithstanding the measures indicated above, the Resolution establishes that prior consultation applies in the following situations:

  1. For other administrative measures that directly affect the collective rights of indigenous or native peoples.
  2. In the case of investment projects, prior to the start of work.

The Resolution specifies that the body in charge of carrying out the prior consultation is the General Office of Social Management (OGGS) of the Ministry of Energy and Mines, in coordination with the General Directorate of Electricity. For this purpose, the OGGS must prepare guidelines to identify indigenous or native peoples and other stages of the prior consultation process.

For cases 7 and 8, the guidelines must state that the competent environmental authority shall submit the approved citizen participation plan and the corresponding documentation to the General Directorate of Electricity, establishing the stakeholders identified within the area of direct and indirect influence of the investment project.

The Ministry of Energy and Mines will evaluate what measures to take to apply prior consultation in investment projects that, as of the date of publication of Class Action Ruling No. 29126-2018-Lima (14 January 2022), were under construction and are still at that stage.

We trust that this information will be useful to you and your company. Should you require legal advice on this matter, please do not hesitate to contact us.

Click here to read the Spanish version.

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Author

Ines Vazquez is a partner in Estudio Echecopar. Prior to joining the Firm, she was the head of Latin America Power's Legal Department for two years, during which she gained wide experience and was exposed to transactions in multiple jurisdictions. She has worked on privatization and concession procedures in the electric power sector for private clients, as well as in bidding processes of public services concessions in general. She also has a solid background in corporate law, mergers and acquisitions, financing, and has participated in several acquisition transactions and sale of companies, assets and shares participations, including mergers, spin-offs, reorganizations and other structures, both domestic and international. Additionally, Ines has contentious and non-contentious construction practice based on domestic and international arbitration, advising both private and state owned companies.

Author

Claudia Cruces is a lawyer with a focus on power regulation and renewable energies. She has participated in bidding process for the concession of public services, projects and power purchase agreements in the sector. Also, has advised several private companies and public entities regarding the analysis of the regulations. She has also developed practice in national and international arbitrations in power matters.
She is also experienced in mergers and acquisitions, financing, and has participated in the acquisition transactions and sale of companies, assets and shares participations, including mergers, spin-offs, reorganizations and other corporate structures in the sector.
She has advised private companies in the development and operation of generation, transmission and distribution activities. As part of the advice, she has accompanied the clients in procedures before the authorities for the granting of the permits; sanctioning procedures, tariff procedures and controversies. As well, she has experience structuring and negotiating power purchase agreements, construction agreements, operation and maintenance agreements, and transmission agreements.

Author

Nicole Freire is an experienced lawyer specializing in environmental, climate change and ESG matters. With over a decade of expertise, she has provided valuable counsel to both local and international companies in various sectors such as mining, hydrocarbons, electricity, and industrial and commercial fields. Nicole is well-versed in navigating the complexities of ongoing business development, administrative sanction proceedings, carbon markets and formulating strategic plans to secure environmental permits. Nicole has been recognized by The Legal 500 in its 2023 edition for Latin America, where she was honored as a "Rising Star" in Environmental Law.

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