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ESG Latin America & the Caribbean Guide 2024 | Charting Sustainable Futures

Peru

(Latin America/Caribbean) Firm Estudio Olaechea

Contributors Carlo Viacava
Licy Benzaquen
Diego Abeo
Lucianna Polar
Carol Quiroz
Jessica Mercado
Ursula Wismann
Natalia Orrego

Updated 22 May 2024
ESG Regulation related to climate change prevention or mitigation, specifically concerning carbon footprint or pollution measurement, decarbonization strategies, and/or mandates and strategies to achieve local carbon neutrality commitments

Laws/regulations concerning climate change prevention or mitigation include:

The scope of the application is Federal.

ESG Regulation regarding energy transition (requirements or promotion and use of new second-generation renewable energy sources such as solar, wind, tidal, H2, geothermal, among others).

Laws/regulations concerning energy transition include:

The scope of the application is State.

ESG Regulation concerning electricity markets, carbon markets, or similar.

Laws/regulations concerning electricity markets, carbon markets, or similar include:

The scope of the application is State.

ESG Regulation in the realm of green or sustainable financing, including taxonomies, provisions for mandatory reporting of material financial information on environmental or social matters, as prerequisites for issuing thematic bonds (green, sustainable,

Not applicable.

ESG Regulation for preventing greenwashing.

Not applicable.

Regulation on ESG Due Diligence applicable to value chains (MRV protocols to ensure the environmental integrity of products and services, etc.).

Laws/regulations concerning ESG Due Diligence applicable to value chains include: 

  • Law No. 30754, Framework Law on Climate Change and its Regulations (Supreme Decree No. 013-2019-MINAM)
    The regulations establish provisions on MRV protocols, which establish actions aimed at carrying out periodic monitoring of information, subject to technical verification, on 1) GHG emissions and removals and 2) reduction of emissions and increase of GHG removals. Its objective is to strengthen national, regional, and local action for compliance with the Nationally Determined Contributions ("NDC"), and to access payments for results and other types of mechanisms under the cooperative approaches established in the Paris Agreement.
  • Supreme Decree No. 011-2021-EM, Provisions to Promote the Development of Energy Audits
    The purpose of this Supreme Decree is to establish provisions for the development of energy audits and the certification of energy auditors, in order to promote efficiency in the use of energy. They are mandatory in the state sector and may be used, where applicable and pertinent, by the private sector.

    For its implementation, an MRV System is established to measure, report and verify information on the reduction of energy consumption and GHG emissions, in accordance with the commitments of the energy sector expressed in the NDC.

The scope of the application is Federal

Regulation in the field of circular economy.

Laws/regulations concerning the field of circular economy include:

  • Supreme Decree No. 345-2018-EF, National Competitiveness and Productivity Policy
    This decree is mandatory for all entities of the different branches of government, as well as for the private sector and civil society, as applicable.

    The policy is organized into nine Priority Objectives, one of them being Priority Objective No. 9 called: "Promote environmental sustainability in the operation of economic activities" which is oriented, among others, to the promotion of the circular economy in the markets and the generation of sustainable and diversified solutions for the productive business development.
  • Legislative Decree No. 1278, Law on Integral Solid Waste Management and its Regulations (Supreme Decree No. 014-2017-MINAM)
    This decree aims to promote constant maximization of efficiency in the use of materials and ensure economically, environmentally, and hygienically appropriate management and handling of solid waste, promoting waste recovery (reuse in productive activities and recycling) as a preferential alternative to final waste disposal.
  • Supreme Decree No. 009-2019-MINAM, Special Regime for Managing and Handling Waste from Electrical and Electronic Equipment
    This decree outlines the obligations and responsibilities of various stakeholders, such as producers and distributors of WEEE, generators and operators of WEEE, at different stages of their management and handling: segregation, storage, collection, transportation, valorization, and final disposal.

    It establishes extended producer responsibility ("EPR"), which encourages manufacturers, importers, distributors and marketers to become actively involved in the different stages of the product's life cycle, prioritizing the recovery and valorization of waste.
  • Supreme Decree No. 024-2021-MINAM, Special Regime for the Management and Handling of End-of-Life Tires
    The Special Regime of ELTs, aims to ensure efficiency in the management and handling of ELTs, through the extension of their useful life and/or their recovery, in order to prevent the generation of solid waste, tending to a proper transition to the circular economy. For this purpose, the producers of ELTs are responsible for managing the waste derived from the tire in the post-consumption stage, applying reverse logistics mechanisms in the framework of the EPR, which allows its recovery through a collective or individual system, until its material and/or energy recovery, in duly authorized economic activities.
  • Supreme Decree No. 002-2022-VIVIENDA, Regulation for the Management and Handling of Construction and Demolition Solid Waste
    This decree aims to regulate the management and handling of solid waste generated during construction and demolition by prioritizing waste minimization and valorization. It ensures the proper disposal of non-recyclable waste and contributes to urban and rural environmental quality, sustainability, and the construction sector's transition to a circular economy.
  • Law No. 30884, a Law regulating Single-use plastics and Disposable Containers or Packaging
    This law aims to establish the regulatory framework regarding single-use plastics, other non-reusable plastics, and expanded polystyrene containers or packaging (commonly known as styrofoam) for food and beverages intended for human consumption within the national territory.
  • Supreme Decree No. 011-2023-PRODUCE, Roadmap to a Circular Economy in the Fishing and Aquaculture Subsectors
    This Roadmap includes the activities of artisanal, small-scale and large-scale fishing extraction, artisanal processing and aquaculture; it also aims to progressively adapt and encourage the transition from the linear model of consumption and production to a circular model that covers the maximum possible time of the life cycle of materials, involving the cyclical flow of actions to extract, transform, distribute, use and recover (regenerate) materials and energy of products and services.

The scope of the application is Federal.

ESG Regulation related to stakeholder well-being and social impact.

Not applicable.

ESG Regulation concerning non-discrimination.

Laws/regulations concerning non-discrimination include:

  • Peruvian Constitution
    Every person is entitled to equality before the law. Nobody must be discriminated against by race, religion, opinion, economic condition or any other grounds.
  • Law No. 26772
    Regulates job offers that may not contain requirements that comprehend discrimination or alter the equality of opportunities or treatment.
  • Law No. 27270
    Establishes administrative or criminal liability for acts of discrimination in any aspect, including job offers.
  • Law No. 30709
    Prohibits the remunerative discrimination between men and women by positions, functions or remunerations that do not enable the execution of the principle of remuneration equality on labor equality.
  • Law No. 28983
    It establishes the normative, institutional, and public policy framework at the national, regional, and local levels to guarantee women and men the exercise of their rights to equality, dignity, free development, well-being, and autonomy, preventing discrimination in all spheres of their public and private life, and promoting full equality.
  • Peruvian Criminal Code (Legislative Decree No. 635)
    Defines the crime of Discrimination in section 323°
  • Supreme Decree No. 009-2020-MC
    This supreme decree approves the National Cultural Policy for 2030.
  • Supreme Decree No. 012-2021-MC
    Approves the National Policy on Native Languages, Oral Tradition, and Interculturality for 2040.
  • Supreme Decree No. 005-2022-MC
    Approves the National Policy of Afro-Peruvian people.
  • Ministerial Resolution No. 159-2013-TR
    Approves the "Guide to Good Practices in Equality and Non-Discrimination in Access to Employment and Occupation".
  • Ministerial Resolution No. 171-2019-TR
    Approves the document entitled "Guidelines for Granting Reasonable Accommodations to Persons with Disabilities in the Selection Process and the Workplace, and Criteria for Determining Disproportionate or Undue Burden, Applicable in the Private Sector".

The scope of the application is State.

ESG Regulation pertaining to the prevention of modern slavery.

Laws/regulations concerning the prevention of modern slavery include: 

  • Law No. 28950, The Law Against Human Trafficking and the Illicit Trafficking of Migrants
    This law incorporates the crimes of human trafficking and the illicit trafficking of migrants into the Criminal Code. Additionally, it specifies that it will be the State directly or in coordination with other States, international organizations, non-governmental organizations, and civil society, that will promote and implement measures for the prevention of human trafficking and the illicit trafficking of migrants, as well as their risk factors, considering, among others: investigation, training, information, and dissemination.
  • Law No. 30251
    A law that perfects the classification of the crime of human trafficking.
  • Law No. 30802
    Establishes conditions for the admission of girls, boys, and teenagers to lodging establishments in order to guarantee their protection and integrity.
  • Law No. 30925
    A law that strengthens the implementation of temporary shelter spaces for victims of human trafficking and sexual exploitation.
  • Law No. 31146
    Amends the Criminal Code, the Criminal Procedure Code, and Law 28950, Law against Human Trafficking and Smuggling of Migrants, to systematize the articles related to trafficking in persons and exploitation offenses, considering these as crimes against human dignity.
  • Law No. 30077
    Establishes the rules and procedures relating to the investigation, prosecution, and punishment of crimes committed by criminal organizations, with human trafficking being one of the offenses covered by the law.
  • Peruvian Criminal Code (Legislative Decree No. 635)
    Defines the crimes of human trafficking and the smuggling of migrants in sections 129-A to 129-P and 303-A.
  • Supreme Decree No. 001-2016-IN
    Approves the Regulation of Law No. 28950 - Law against Human Trafficking and Smuggling of Migrants, and establishes the multisectoral commission of a permanent nature against human trafficking and smuggling of migrants.
  • Supreme Decree No. 007-2023-IN
    Approves the "Intersectoral Protocol for the Prevention and Prosecution of Crime and the Protection, Care, and Reintegration of Victims of Human Trafficking".
  • Supreme Decree No. 009-2021-IN
    Approves the National Policy against Human Trafficking and its forms of exploitation for 2030, which constitutes the framework instrument of public policies in the fight against human trafficking, with cultural and linguistic relevance. This regulation will guide the action of the State at its three levels of government for the development of coordinated interventions.
  • Ministerial Resolution No. 524-2022-IN
    Approves the Operational Guide for the Investigation of the Crime of Human Trafficking.

The scope of the application is State.

ESG Regulation regarding Diversity, Equity, and Inclusion - DEI.

Laws/regulations concerning DE&I include:

  • Law No. 30709
    Prohibits the remunerative discrimination between men and women by positions, functions or remunerations that do not enable the execution of the principle of remuneration equality on labor equality.
  • Law No. 29973
    Regulates the inclusion and the equality in opportunities in any aspect in favor of the people with disabilities.

The scope of the application is State.

Regulation on ESG-linked compensation.

Laws/regulations concerning ESG-linked compensation include:

  • Executive Resolution No. 066-2017-SENACE-J, Guidelines to Promote the Participation of Women in the Environmental Certification Process
    The objective of this document is to describe the degree and form of women's participation in the environmental certification process of investment projects under SENACE's jurisdiction, from a gender perspective. It promotes the participation of women in the elaboration process of environmental impact assessments and develops proposals to promote the effective participation of women in the development of citizen participation mechanisms.

The scope of the application is Federal.

ESG Regulation for the protection of vulnerable or minority communities.

Laws/regulations for the protection of vulnerable or minority communities include:

  • Supreme Decree No. 002-2018-JUS
    National Human Rights Plan 2018-2021, approved by Supreme Decree No. 002-2018-JUS, establishes guidelines for all sectors of the executive. Chapter II seeks to protect the rights of human rights defenders, as well as the rights of indigenous peoples. Likewise, through this plan, the aim is to combat the violence and discrimination they face and to eliminate administrative and legal barriers that limit the exercise of their rights, allowing them to act on equal terms.
  • Law No. 29973
    Regulates the inclusion and the equality in opportunities in any aspect in favor of the people with disabilities.
  • Law No. 30367
    Regulates the protection against dismissals in favor of the pregnant employee, and situations that may put her health or pregnancy at risk.

The scope of the application of the above is State.

The scope of the application of the above is Federal.

ESG Regulation for economic development of vulnerable or minority communities or groups.

Laws/regulations concerning the economic development of vulnerable or minority communities or groups include:

The scope of the application is Federal.

Regulation on Personal Data Protection, concerning data usage transparency, limits on data usage to prevent discrimination issues, and corporate digital responsibility.

Laws/regulations concerning Personal Data Protection include:

  • Personal Data Protection Law (Law No. 29733)
    This law defines sensitive data as any personal data consisting of biometric information; data referring to racial and ethnic origin; financial income; political, religious, philosophical or moral opinions or convictions; union membership; sex life data; physical, moral or emotional characteristics; information of affective and family life; and information on physical or mental health.

    Sensitive data is established as a special category of data processing, given that the indiscriminate use of this data may lead to the infringement of constitutional rights, such as privacy, honor and good reputation.

    The processing of sensitive data must performed in accordance with the principles of proportionality, purpose and consent. Additionally, it is mandatory to obtain the written, prior, free, express and unequivocal consent of the data subject. The consent document must inform the conditions of the processing of personal data.

    The written consent includes the handwritten signature, digital signature or any other authentication mechanism that guarantees the unequivocal will of the data subject. In the absence of consent, the processing of sensitive data should be carried if it is authorized by law, provided that it is in the public interest.

    The processing of sensitive data must comply with the principle of accountability, therefore, the data controller must comply with all the obligations established by law in order to ensure the confidentiality, integrity and accessibility of sensitive data.
  • Personal Data Protection Law Regulation (Supreme Decree No. 003-2013-JUS).
    The Regulation of the Personal Data Protection Law develops the obligations established in the Personal Data Protection Law, establishing that the processing of sensitive data can only be justified if, in addition to its legitimacy, the purpose is specific, and in accordance with the activities or explicit purposes of the data controller.

    It also establishes mechanisms where the data subject may exercise their rights of access, rectification, opposition and cancellation of personal data (ARCO rights) against the data controller; and, develops the mechanisms for the exercise of the ARCO rights, allowing the data subject to initiate an administrative procedure before the National Personal Data Protection Authority, in the event that the data controller does not attend the data subject's requests in due time.

  • Security Directive issued by the Nacional Personal Data Protection Authority
    The directive is a guidance document and develops the security measures that data controllers may implement. It is aligned with the ISO 27001 certification.

    It classifies the processing of sensitive personal data as a category of intermediate, complex or critical activity, establishing the minimum requirements in each case.

    Therefore, data controllers are recommended to implement more complex and rigorous legal, technical and organizational security measures to ensure the integrity, availability and confidentiality of sensitive data.

  • Digital Trust Law (Urgency Decree No. 007-2020)
    This law establishes digital trust standards for digital services provided by public entities and private sector organizations, pointing out obligations to public administration entities, digital service providers in the financial sectors, basic services (water, gas, light or electricity), health and transportation, internet services, education and critical activities.

    Critical activities are defined as providers of essential services that sustain the economy, society and government, or affect economic and social prosperity. Interruption of their services can lead to serious health and safety consequences.

The scope of the application is Federal.

ESG Regulation regarding the integration of the board of directors, board of trustees, or management body of the company (minimum participation/representation of women or minority groups, guidelines on the composition of board members with expertise in ES

Laws/regulations concerning the integration of the board of directors, trustees, or management body of the company include:

  • Law No. 28983, Law of Equality Between Women and Men
    This law aims to establish the normative, institutional, and public policy framework at the national, regional, and local levels to ensure that women and men have the exercise of their rights to equality, dignity, free development, well-being, and autonomy, preventing discrimination in all spheres of their lives, both public and private, and promoting full equality.

The scope of the application is Federal.

Regulation on fiduciary responsibility and administrators' roles in environmental and social risk management (standards or interpretations regarding the scope of fiduciary responsibility or administrator's duty concerning the company's social purpose, bas

Laws/regulations concerning fiduciary responsibility and administrators' roles in environmental and social risk management include:

The scope of the application is Federal.

ESG Regulation concerning corporate purpose.

Not applicable.

Regulation on types of Benefit and Collective Interest Companies (certifications like B Corps, specific regulations for BIC companies).

Laws/regulations concerning types of Benefit and Collective Interest Companies include:

The scope of the application is Federal.

ESG Regulation regarding supply chains from the perspective of ESG risk governance.

Laws/regulations concerning supply chains from the perspective of ESG risk governance include:

The scope of the application is Federal.

ESG Regulation in the context of M&A (ESG due diligence).

Not applicable.

ESG Regulation related to Corporate Digital Responsibility.

Laws/regulations concerning Corporate Digital Responsibility include:

  • Personal Data Protection Law (Law No. 29733)
    The law establishes that data controllers must have an adequate level of protection that respects the guiding principles of the law, as well as appropriate technical security and confidentiality measures depending on the processing of the data.

    To comply with the aforementioned obligation, data controllers must adopt the technical, organizational and legal measures necessary to ensure the security of personal data. Security measures must be appropriate and proportionate to the processing to be carried out according to the category of processing. If the security conditions are not complied with, the processing of personal data will be prohibited.
  • Personal Data Protection Law Regulation (Supreme Decree No. 003-2013-JUS)
    The regulation develops the security measures that must be applied in digital systems, establishing that the data controller must adopt the following security measures: (i) control access to the information, (ii) generate and maintain records that provide evidence of interactions with logical data, (iii) periodically verify assigned privileges, and (iv) establish identification and authentication procedures that guarantee the security of the processing of personal data.
  • Security Directive issued by the Nacional Personal Data Protection Authority
    Although this directive is a guidance document, it develops security measures that data controllers may implement.

    Therefore, it classifies the processing of personal data into the following categories: (i) basic, (ii) simple, (iii) intermediate, (iv) complex, and (v) critical. Consequently, according to the category in which the data controller is classified, it must implement certain legal, technical and organizational security measures.

    It also establishes that in the event of a personal data breach affecting the data subject's economic and moral rights, the data controller must notify the data subject with the following information: (i) the nature of the incident, (ii) personal data compromised, (iii) recommendations to the data subject, (iv) corrective measures implemented.
  • Digital Trust Law (Urgency Decree No. 007-2020)
    This law establishes digital trust standards for digital services provided by public entities and private sector organizations, pointing out obligations to public administration entities, digital service providers in the financial sectors, basic services (water, gas, light or electricity), health and transportation, internet services, education and critical activities.

    Among the obligations applicable to safeguard the integrity, availability and confidentiality of the information, it states that in the event of a digital security incident that involves personal data, the National Digital Security Center and the National Personal Data Protection Authority must be notified of the incident.

The scope of the application is Federal.

Specific mandates related to national alignment with specific reporting standards.

Specific mandates related to national alignment with specific reporting standards include:

The scope of the application is Federal.

Standards regarding the scope and frequency of such reports.

Not applicable.

ESG Latin America & the Caribbean Guide 2024 | Charting Sustainable Futures