The Resolution in context
According to Article 26 of the University Law (Law No. 30220), in force since 10 July 2014, public universities are created by law, while private universities "are constituted by the initiative of their promoters."
Therefore, since 10 July 2014, could any person constitute a "promoter" to create new private universities? Not exactly, because until 16 May 2022, Law No. 31193 was in force regarding creating and authorizing the operation of new public and private universities.
Now, with the Regulation, Article 115° of the University Law has been regulated. It provides that, "In order to start its activities, the promoter must have the authorization of the Executive Board of the National Superintendency of Higher University Education (SUNEDU for its acronym in Spanish), in accordance with the rules and powers set forth in this Law." In effect, this Regulation governs how the promoter will be authorized by SUNEDU, which could lead to the creation of a new private university.
Content of the Regulation
Pursuant to Article 2° and Article 3° of the Regulation, it applies to any legal entity (national or foreign) that decides to promote the creation of a Peruvian university in Peruvian territory.
Following the line of Article 115 of the University Law, Article 4 indicates that the promoter's sole purpose must be to establish a private university. If the university is to be corporate, i.e., for profit, the promoter must be a corporation. If the university is to be associative, i.e., not for profit, the promoter must be a civil association.
As part of the requirements of the authorization procedure for commencing activities, contained in Article 8 of the Regulation, the promoters must comply with the following:
| A |
The promoter must be registered as a legal entity in the Registry of Legal Entities of the National Superintendence of Public Registries (SUNARP). |
| B |
Its object or corporate purpose is solely to promote the creation of a single private university. |
| C |
The project is for the creation of a private university. |
Likewise, the new Regulation establishes that (i) the authorization shall be valid for one year (Article 13°), (ii) the authorization granted to a promoter is not transferable to another (Article 14°), (iii) the authorization granted to the promoter is not the same as a university license (Article 15°) and (iv) promoters may waive their rights to participate (and "conduct" or "manage" the university, according to the terms used in Law No. 30220) in the private university as long as this does not affect the patrimony or existence of the university itself (Article 17°).
What are the consequences?
- As of 21 December 2024, if a private university is to be created, the promoter must first be duly registered with SUNARP, have a project for creating a university and have the social purpose of creating a private university. This authorization procedure is subject to the deadlines established in Article 11 of the Regulation.
- The effectiveness of the Regulation will not affect existing universities, since — by virtue of the First and Second Final Complementary Provisions — the following universities are not required to have an authorized promoter: (i) private universities created after 10 July 2014 that have an admitted licensing application; and (ii) private universities created before such date that continue to operate. In other words, existing universities (such as the Pontificia Universidad Católica del Perú or the Universidad de Lima) will not need a promoter.
Conclusions and recommendations
- Unlike public universities, which are established by law, private universities are established on the initiative of their promoters. These are authorized legal entities whose sole purpose is to promote the creation of one private university. With this, the promoters allocate economic resources for the creation and long-term sustainability of the projected activities, which, once contributed, are included in the social patrimony of the private university. This mandatory procedure must only be followed as of 21 December 2024 if a private university is to be created, thus excluding existing private higher education institutions.
- As part of the scope of the promoter's authority, it should be clear that the authorization of the promoter's activities is totally different from the university license. Thus, the economic resources provided may be returned to the promoter if the university is not licensed.
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