Peru

Abstract: The lex artis ad hoc is the technical-legal criterion that allows evaluating the correctness of a medical act based on the specific circumstances in which it is performed. In contrast to the traditional concept of a uniform lex artis, its ad hoc version recognizes the inherent variability of the science and art of healing, as well as the need to consider concrete factors such as the patient's clinical situation, the conditions of the healthcare environment, incidents inherent to professional practice, and the physician's qualities. In civil liability, this standard reaffirms that the medical obligation is one of means and not of results, ruling out attribution of liability based on unavoidable diagnostic errors or the demand for infallibility. Fault arises only when the professional unjustifiably deviates from the rules of their art and from the diligence required according to the state of scientific knowledge. The lex artis, the technical rule of conduct for a profession, is used to refer to the assessment of the work performed by a professional, in order to determine whether it is correct or not. It applies to professional activities and refers to two important aspects thereof: the diligence exercised by the author and the result produced.   It is applicable to those professions in which it is necessary to act by employing a technique through which the results of the activity are obtained, that is, to experimental or scientific activities in which the application of technique yields results that are objectively and materially verifiable. It has been said that the lex is applied to measure the work or the result obtained by a professional.   In the case of medical activity, we note that the application of the lex artis depends on various factors, such that the technique may vary depending on each case. We cannot speak of a general lex artis, but rather, when it comes to medicine, understood as both a science and an art (of healing), we must speak of a lex artis ad hoc, characterizing its special aspect.   The lex artis ad hoc is a value judgment regarding the correct application of the medical act. In the evaluation, the following must be taken into account:   The specific case in which the medical act is performed. The circumstances in which it is performed. Unexpected incidents in the normal professional practice. The qualities of the author of the medical act. The characteristics of the patient. The influence of endogenous factors (the patient's condition, the emotional state of family members, and the conditions of the healthcare facility).   These considerations will serve to determine whether or not the medical act complies with the standard technique required.   When deciding cases, the following criteria must be taken into account, in some way following the trend of comparative law:   Medical liability is not determined by diagnostic errors, nor by lack of skill in the performance of surgical activities (since infallibility is not required in this, nor in any aspect of social life). Medical liability is determined to the extent that fault involves conduct that is inadequate in relation to certain ordinary requirements and means. Medical liability is established when treatment involves negligent conduct that, disregarding the lex artis, leads to harmful outcomes. The conduct of healthcare professionals must be governed by the so-called lex artis ad hoc, which takes into account the specific case in which the medical act is performed, the circumstances under which it is carried out, and the incidents inherent in normal professional practice. Lex artis ad hoc is understood as that evaluative criterion of the correct application of the medical act performed by the professional, which takes into account the specific characteristics of its author and of the profession.   In short, the lex artis is, by its nature, a variable standard that reflects the constant evolution of medicine and the increasing specialization of its techniques. In this context, the lex artis ad hoc stands as the true guiding parameter of the medical act, requiring that professional conduct be appropriate to the specific case and consistent with the physician's training, skills, and ethical principles. This criterion not only defines proper conduct but also justifies a higher requirement of diligence for those who professionally practice the art of healing, as compared to those who lack such specialization. Negligence arises, therefore, when the professional fails to apply the knowledge and resources imposed by their specific training, unjustifiably deviating from the technical and ethical standard required by the lex artis ad hoc.   Author: Enrique Varsi-Rospigliosi

Joins Hernández & Cía.’s Oil & Gas practice to strengthen the department Former Corporate Legal Manager at Pluspetrol until 2022 Lima, November 24, 2025 – Gonzalo Raffo Moncloa has joined Hernández & Cía.’s Oil & Gas practice to reinforce the firm’s projects in the sector and expand its market presence. Juan Luis Hernández, Managing Partner at Hernández & Cía., commented: "We are delighted to welcome Gonzalo Raffo as a partner. He brings more than 20 years of experience in the Oil & Gas sector. We are confident that his arrival will help us advance our goal of strengthening our natural resources practice while continuing to drive the growth and consolidation of our firm." Partner Quote: Gonzalo Raffo stated: "I consider my joining Hernández & Cía.’s Oil & Gas practice highly valuable. Hernández & Cía. has steadily established a strong market presence, strengthening and promoting all of its practice areas, and Oil & Gas is no exception. We have the sector knowledge and in‑house experience to serve our clients with strategic vision and create value for their businesses. Our goal is to establish ourselves as a leading reference in the field." Gonzalo Raffo has over 20 years of experience as in-house legal counsel in the financial and energy sectors, holding international management roles and leading business structuring, mergers and acquisitions, corporate financing, project development, and arbitration. He was a partner and Executive Manager at LQAmbiental, where he oversaw the commercial management of the hydrocarbons and environmental division. Previously, he served as Corporate Legal Manager at Pluspetrol, leading international arbitration and legal matters for operations in Bolivia, Ecuador, Colombia, Suriname, Uruguay, and Angola. Gonzalo Raffo earned his Law degree from Universidad de Lima in Peru, holds a Master of Laws (LL.M.) from Northwestern University School of Law, and has completed specialized programs at Kellogg Graduate School of Business, Harvard University, and the London School of Economics.

• Joins Hernández & Cía.’s Oil & Gas practice to strengthen the department • Former Corporate Legal Manager at Pluspetrol until 2022 Lima, November 24, 2025 – Gonzalo Raffo Moncloa has joined Hernández & Cía.’s Oil & Gas practice to reinforce the firm’s projects in the sector and expand its market presence. Juan Luis Hernández, Managing Partner at Hernández & Cía., commented: "We are delighted to welcome Gonzalo Raffo as a partner. He brings more than 20 years of experience in the Oil & Gas sector. We are confident that his arrival will help us advance our goal of strengthening our natural resources practice while continuing to drive the growth and consolidation of our firm." Partner Quote: Gonzalo Raffo stated: "I consider my joining Hernández & Cía.’s Oil & Gas practice highly valuable. Hernández & Cía.has steadily established a strong market presence, strengthening and promoting all of its practice areas, and Oil & Gas is no exception. We have the sector knowledge and in-house experience to serve our clients with strategic vision and create value for their businesses. Our goal is to establish ourselves as a leading reference in the field." Gonzalo Raffo has over 20 years of experience as in-house legal counsel in the financial and energy sectors, holding international management roles and leading business structuring, mergers and acquisitions, corporate financing, project development, and arbitration. He was a partner and Executive Manager at LQAmbiental, where he oversaw the commercial management of the hydrocarbons and environmental division. Previously, he served as Corporate Legal Manager at Pluspetrol, leading international arbitration and legal matters for operations in Bolivia, Ecuador, Colombia, Suriname, Uruguay, and Angola. Gonzalo Raffo earned his Law degree from Universidad de Lima in Peru, holds a Master of Laws (LL.M.) from Northwestern University School of Law, and has completed specialized programs at Kellogg Graduate School of Business, Harvard University, and the London School of Economics.

Creativity Under Surveillance Modern creativity lives under constant observation. Every video, sound, or image uploaded to most digital platforms is scanned by automated copyright filters before it ever reaches an audience. These tools –collectively known as Automated Content Recognition (ACR) systems– promise to protect copyright owners from infringement. In practice, they have become powerful, but invisible regulators of online content creation. For advertisers and creators alike, there is a clear implication: success now depends less on legal compliance and more on technological compatibility. The challenge is no longer simply to follow the law, but to outsmart the algorithm that enforces it. In the digital environment, copyright enforcement has been quietly transformed from a legal to a computational issue, reshaping the boundaries of creativity, compliance and market access. The Rise of Algorithmic Copyright Enforcement ACR technology became popular in the early 2010s as a pragmatic response to massive breach on user-generated content platforms. Systems such as the YouTube Content ID or Meta Rights Manager identify matches between uploaded material and databases of registered works. When a match occurs, the platform may automatically block, monetize or mute content, depending on the decision of copyright holders[i]. At first, the use of such technologies was only conceived as a tool for protecting copyrighted content on large-scale platforms but the automation of copyright enforcement has introduced a new logic: platforms now apply a technology test, not a legal one. The algorithm does not ask whether a use is fair, transformative or incidental; it simply detects a match and acts on it. The result is what scholars have called over-blocking: licit or trivial uses of protected material are pre-emptively eliminated, while the user’s ability to challenge that decision remains limited. Exceptions such as citation, parody or incidental inclusion –cornerstones of creative freedom– are not only virtually invisible, but irrelevant to the code[ii]. The Legal vs. the Technological Battle The spread of ACR systems has reoriented the way in which creators, advertisers and even legal teams think about compliance. Before, success depended on navigating the complexities of copyright law. Today, it depends on understanding how the platform filter "thinks". Creators adjust sound frequencies and edit images to evade detection. Marketing teams buy redundant licenses "just in case." Agencies modify the artwork or choose replacements generated by AI to avoid overlaps with existing content. None of these decisions responds to a legal need: they are acts of algorithmic self-defence[iii]. This change has transformed copyright from a normative issue into a technical one: whoever understands the system wins the war of visibility. The practical result is a "technological chilling effect". Creativity is not held back by fear of demands, but by the opaque logic of automated moderation. For the in-house legal adviser, this means that traditional intellectual property manuals are no longer sufficient. Risk management in the digital economy requires both legal and technological fluidity. Companies that dominate both will not only meet but remain visible in markets increasingly dominated by algorithms. Governance and Accountability: Who watches the watcher? ACR systems operate with minimal external oversight. There is no legal framework that defines the standards for technology accuracy, reporting obligations or resources available to users to challenge decisions made by platforms. Rights holders can register reference files without verification; algorithms can generate false positives with no consequences. This dynamic has produced a privatized form of copyright enforcement in which platforms act as regulators, algorithms as judges and users as defendants. Meanwhile, governments have even gone so far as to promote the use of such technologies as the European Union has done through the Digital Markets Act. For companies, the consequences are tangible. A mistakenly blocked campaign can generate lost revenue, reputational harm, and breach-of-contract claims. An over-zealous takedown may distort competition if one brand’s content remains online while another’s disappears. To mitigate these risks, corporate legal departments could: Audit platform policies to identify how ACR systems operate. Include ACR contingencies –such as compensation or re-posting rights– in marketing contracts. The Human Role in a Machine-Moderated Market Automation was supposed to facilitate copyright enforcement. However, it has introduced new layers of uncertainty because creativity cannot –at least for the moment– be interpreted by code or algorithm. Human oversight remains essential, not only to correct errors but to interpret culture, humor, and intent. A meme, a parody, or a cinematic reference can be illegal to an algorithm yet lawful and socially valuable to a human reviewer. In this context, it is important to implement hybrid compliance models that combine legal expertise with an understanding of how these platforms work. There has never been a greater need to integrate intellectual property lawyers into the marketing and product design teams; train creators to assess risk at the storyboard stage or evaluate the implications of using AI tools before publishing content. Such investments may seem more expensive in the short term, but they ensure brand resilience and integrity. Understanding the functioning of platforms will ensure not only greater reach to target audiences, but better management of intellectual property rights and risk prevention. [i] Lester, T., & Pachamanova, D. (2017). The Dilemma of False Positives: Making Content ID Algorithms more Conducive to Fostering Innovative Fair Use in Music Creation. UCLA Entertainment Law Review, 24(1). [ii] Carruitero, S. (2023) El sistema de Content ID de YouTube frente a la excepción de uso honrado del derecho peruano. dissertation. [iii] Guzman-Zavaleta, Z. J., & Feregrino-Uribe, C. (2016). Towards a video passive content fingerprinting method for partial-copy detection robust against non-simulated attacks. En PLOS ONE, 11(11).   Author: Diego Arce Santiváñez and Sebastián Carruitero Cárdenas