| | | | |
Simpson Thacher & BartlettLLP |
| The Republic of Peru | | -2- | | April 23, 2020 |
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents.
We have also assumed that (1) the Republic has duly authorized, executed and delivered the Indenture and the Global Bonds in accordance with the law of Peru, (2) the execution, delivery and performance by the Republic of the Indenture and the Global Bonds do not and will not violate the law of Peru or any other applicable laws (except that no such assumption is made or taken with respect to the law of the State of New York and the federal laws of the United States) and (3) the execution, delivery and performance by the Republic of the Indenture and the Global Bonds do not and will not constitute a breach or violation of any agreement or instrument which is binding upon the Republic. We have further assumed that the Indenture is the valid and legally binding obligation of the Trustee and the Luxembourg Agent.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that, assuming due authentication of the Global Bonds by the Trustee in accordance with the provisions of the Indenture and due payment therefor and delivery thereof in accordance with the Underwriting Agreement, the Global Bonds constitute valid and legally binding obligations of the Republic, enforceable against the Republic in accordance with their terms.
Our opinion set forth above is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing, and (iv) the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights.
We note that enforceability in the United States of the waiver by the Republic of its immunity (including sovereign immunity) from court jurisdiction, as provided in the Global Bonds, is subject to limitations imposed by the U.S. Foreign Sovereign Immunities Act of 1976.
In connection with the provisions of the Global Bonds whereby the Republic submits to the jurisdiction of any New York State or U.S. federal court sitting in the Borough of Manhattan in New York City, and any appellate court thereof, we note the limitations of 28 U.S.C. Sections 1330, 1331 and 1332 on subject matter jurisdiction of the U.S. federal courts. In connection with the provisions of the Global Bonds which relate to forum selection (including, without limitation, any waiver of any objection to venue or any objection that a court is an inconvenient forum), we note that under N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial, and under 28 U.S.C. Section 1404(a) a U.S. District Court has discretion to transfer an action from one U.S. federal court to another. We also note that the recognition and enforcement in New
