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International Arbitration Forum

Panamericana Television S.A. et al v. Republic of Peru

Case summary

At a glance

Parties
Panamericana Televisión S.A. (Peru) v. the Republic of Peru
Case no.
PCA Case No. 2019-26 (arbitration); The Hague Court of Appeal case no. 200.333.522/01, ECLI:NL:GHDHA:2025:743
Forum and rules
Set-aside action before the Gerechtshof Den Haag (The Hague Court of Appeal) under the Dutch Code of Civil Procedure. The underlying arbitration was under the UNCITRAL Arbitration Rules, seated in The Hague.
Treaty
Peru–Switzerland BIT of 22 November 1991 (in force 23 November 1993)
Court
C.J. Verduyn, M.E. Honée, B.J. Lenselink
Underlying award(s)
Interim award of 11 September 2020 (jurisdiction upheld; the Siblings' claims held inadmissible); final award of 1 December 2022 (Pantel's claim dismissed)
Sector
Television broadcasting
Outcome
The Court of Appeal rejected Pantel's application to set aside the final award (judgment of 1 April 2025).
Amount
Pantel's earlier claim before the Peruvian courts sought PEN 1,000,000,000. In the set-aside proceeding, Pantel was ordered to pay Peru's costs, assessed at 19,656 (the currency is not shown in the extracted text).

The dispute

Panamericana Televisión S.A. (Pantel) operates the Peruvian television channel Canal 5. In 2001, at the request of a minority shareholder of its parent Grupo Pantel, a Peruvian Mixed Court appointed that shareholder as judicial administrator of Pantel. The measure was enforced in 2003 and annulled by the Superior Court of Lima North on 2 December 2008. During the administration, Pantel's tax debts grew sharply. In 2014 Peru's Constitutional Tribunal held in an amparo proceeding against the tax authority SUNAT that collecting the full debt violated Pantel's property right, and spoke of a "sort of judicial expropriation". Pantel then claimed in arbitration under the Peru–Switzerland BIT that the appointment and the administrator's mismanagement were an expropriation. The tribunal dismissed the claim. Pantel sought to set aside the award on the ground that the tribunal wrongly denied res judicata effect to the Constitutional Tribunal's judgment, which it argued breached the tribunal's mandate, the duty to give reasons and public policy.

Key holdings

  1. The procedural law of the arbitration was Dutch law, because the seat was in the Netherlands. Under Dutch law res judicata is a procedural doctrine. Pantel's complaint that the tribunal failed to assess res judicata under Peruvian law therefore fails. Pantel also did not show that Peruvian law departs from the internationally accepted triple-identity test. ¶¶ 5.13–5.15
  2. Res judicata is not a matter of public policy. Under Dutch law a court may not apply it of its own motion, and other legal systems generally do not treat it as public policy either. ¶ 5.16
  3. The tribunal applied the correct standard. It examined whether the Constitutional Tribunal's judgment concerned the same parties and the same legal relationship. It found that the amparo case was limited to a tax debt and did not find a judicial expropriation. The set-aside court may not review how the tribunal applied that standard or what result it reached. There was no serious breach of mandate and no breach of public policy. ¶¶ 5.19–5.22
  4. The award gives reasons for rejecting the res judicata argument, and those reasons are not untenable. There was no surprise decision and no breach of the right to be heard: the tribunal also decided the point on the merits, and Pantel had enough opportunity to argue it. ¶¶ 5.23–5.24
  5. The tribunal's finding that the judicial administrator's acts could not be attributed to Peru under the ILC Draft Articles on State Responsibility is reasoned (award ¶¶ 407–411). The reasoning is not without a tenable explanation. ¶¶ 5.26–5.28
  6. Pantel argued that its rights under the Constitutional Tribunal's judgment were themselves an investment under Article 1(2)(e) of the BIT. This was not an essential argument, and Pantel attached no separate claim to it. The tribunal's finding that the judgment did not hold Pantel expropriated implies that it conferred no rights qualifying as a protected investment. ¶¶ 5.30–5.32
  7. The claims are rejected. Pantel pays the costs of the proceeding, assessed on Peru's side at 19,656. ¶¶ 5.34–5.35; § 6

Procedural history

  1. 7 December 2001The Mixed Court of Carabayllo grants ex parte interim measures suspending the management of Grupo Pantel and Pantel and appointing the minority shareholder as administrator. The measures are enforced on 24 February 2003.
  2. 2 December 2008The Superior Court of Lima North annuls the interim measures. The Siblings regain control of Grupo Pantel on 8 June 2009.
  3. 25 May 2011Pantel starts an amparo proceeding against SUNAT. It also sues Peru and the former administrator for damages before the Superior Court of Justice in Lima; that suit has no judgment so far.
  4. 12 March 2014Peru's Constitutional Tribunal upholds the amparo claim.
  5. 15 May 2019Pantel and the Siblings start arbitration against Peru under the Peru–Switzerland BIT.
  6. 11 September 2020Interim award: Peru's jurisdictional objection is rejected and the Siblings' claims are held inadmissible.
  7. 1 December 2022Final award dismissing Pantel's claim.
  8. 28 March 2023Pantel serves its writ seeking to set aside the final award.
  9. 16 January 2025Oral hearing before The Hague Court of Appeal.
  10. 1 April 2025Judgment of The Hague Court of Appeal rejecting the set-aside application with costs (published 23 April 2025).

Tribunal, counsel and experts

Decided by
For the claimant
R. Schellaars
For the respondent
R.R. Verkerk
Experts
Fernandez Figueroa (claimant)

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
PCA Case No. 2019-26
Country
Outcome
In favour of State
Treaty
Peru - Switzerland BIT (1991)