It is no news to anyone that technology is advancing by leaps and bounds in recent years, from new technologies in mobile devices, from the use of Artificial Intelligence not only applied in the fields of engineering or medicine, but also in activities that can be carried out in the daily life of each person.
This has led to the use of Artificial Intelligence attracting a greater number of people interested in applying it in various fields, such as education, content creation and, without a doubt, law as a new tool that can be used by lawyers as an auxiliary aid for conflict resolution and drafting legal documents with a new approach.
It was not too late for some -not very diligent- lawyer to use artificial intelligence to draft lawsuits. There is a case in the United States in which a lawyer used ChatGPT in order to find legal citations or references to be used in a civil lawsuit. The case is that the citations that the Artificial Intelligence provided him had no legal or technical basis, causing serious harm to his client. Finally, said lawyer is currently in the process of a trial in which a North American court alleges alleged charges for presenting false information to the court (1).
Given this situation, it is clear that the great expansion of Artificial Intelligence in people's daily lives was going to cause some kind of indirect damage at some point, so it is not unreasonable to think about starting to "regulate" artificial intelligence.
In this regard, Europe has taken the lead, as the European Union Parliament has proposed the first Law on Artificial Intelligence, which proposes, among other things, the possibility that this technology can be used to guarantee better development conditions, such as better healthcare, safer and cleaner transport, more efficient manufacturing and cheaper and more sustainable energy. If these provisions are approved, they would be one of the first economic groups to develop certain conditions for the implementation and creation of Artificial Intelligence.
The case of Peru
On the side of our region, Peru would not be left behind in the regulation of Artificial Intelligence, since on July 05 of this year it was published in the Peruvian Official Gazette, the Law No. 31814 (2), which promotes the use of Artificial Intelligence in favor of the economic and social development of the country, subject to the publication of its regulations.
It is worth noting that Law No. 31814 aims to promote digital talent in the use of emerging and new technologies for social and economic well-being, as well as to promote the development and use of Artificial Intelligence to improve public services, education and learning, health, justice, citizen security, digital security, the economy, inclusion, social programs, national security and defense, as well as for any other economic and social activity at the national level.
Likewise, the aforementioned Law establishes a series of actions that may be carried out in order to achieve the stated objectives:
- The development of artificial intelligence and its adoption as a tool to boost the development and well-being of the country.
- The training of professionals with the skills to harness, develop and use artificial intelligence in the country.
- The creation and strengthening of digital infrastructure as an enabler for the development of artificial intelligence.
- The development of a data infrastructure to make high-quality, reusable and accessible public data available.
- The adoption of ethical guidelines for a sustainable, transparent and replicable use of artificial intelligence.
- An ecosystem of national and international artificial intelligence collaboration.
Finally, although the rules of the game have been set, this regulation would not be the only one, since the preparation of the Regulation of the aforementioned Law has been proposed, so it must be published within a period of no more than 90 working days, that is, in mid-November of this year.
The aforementioned Law could mark a milestone in the regulations on this type of technology, since Peru would become one of the first countries to promote the use of Artificial Intelligence in public services in areas where it can clearly be used, and in this way, focus on clearer objectives and obtain results in the shortest possible time.
This is a clear opportunity for the main officials in charge of customs operations to establish a working team that aims to use Artificial Intelligence in the procedures related to customs clearance of goods under the premise of simplifying customs procedures and shortening deadlines, which to date are some of the main difficulties that, due to lack of correct operational implementation, have not been able to be corrected, seriously affecting the interests of the administered, or failing that, so that foreign trade operators (3) can implement this type of technology in their logistics operations, resulting in them being able to face these difficulties in the most practical way possible.
Now, it is necessary to point out that, in 2021, the Peruvian Customs Administration – SUNAT made public the SMART Borders program, which is a program focused on the use of new technologies (with the possibility of applying Artificial Intelligence) for the implementation of operational actions in customs control and making the traceability of information more dynamic.
The SMART Borders program would allow the country to modernize its control systems to make them less intrusive and smarter, in accordance with international standards, which will improve the competitiveness of foreign trade for the benefit of the country.
The first part of the program will allow the implementation of a new control model in ports, airports and land borders, with high-energy scanners, real-time tracking of containers, use of electronic seals, advance declarations, facial recognition cameras and automated registration, which will reduce costs and times in imports and exports.
The second part includes a new control and intelligence system that allows for greater transparency and online traceability of control actions. To this end, SUNAT proposes incorporating artificial intelligence tools that make it possible to predict new fraud patterns, massively exploiting information with a new Big Data platform (4).
It is important to highlight that this program has not yet been implemented, so it is open to modifications and implementations. This is precisely a possible window that could allow the Artificial Intelligence that the SMART Borders program seeks to implement, not only to be focused on cargo control and security systems (customs operations), but also to be implemented to correct the weak points of the institution.
It is clear that the SMART Borders program is naturally operational, that is, it seeks to automate the procedures for the entry and exit of goods and people, which is correct because of the great benefits. However, the legal perspective and the application of legal instruments such as the General Customs Law, its Regulations and Customs Procedures should not be overlooked.
Recommendations
Given this situation, we cannot miss the opportunity to propose certain recommendations or suggestions for procedures in which Artificial Intelligence - if implemented correctly - can be very useful and beneficial:
- Identification of objective risk factors and carrying out a comprehensive analysis of the commercial panorama on the merchandise for which the customs authority intends to adjust the customs value, before the notification of the start of a reasonable doubt procedure, such as: (i) high or low demand for a product, (ii) increase or decrease in the price of inputs to produce a product, (iii) season of the year in which the product was purchased and (iv) short-term price fluctuations.
- The correct use of the customs authority's price verification database that allows identifying reference values that support the discarding of the first valuation method, taking into account as part of the analysis the normal discounts and the extraordinary discounts such as the Flash sales, black fridays, among others.
- Automation of the procedure for obtaining tariff preferences after the customs authority has been established, allowing it to know the ship's route in greater detail and thus verify compliance with the direct shipping requirement with the support of information from the carrier and other customs authorities around the world.
- Redesign of the way of determining an infringement and applying sanctions to foreign trade operators, as well as to importers, exporters and any person involved in a customs clearance, taking into account all the facts and circumstances, with the aim of mitigating customs sanctions.
- Implementation of an automatic system that quickly determines the tariff classification of a good.
It is clear that these recommendations are only some of the most important, in the understanding that Artificial Intelligence must be used comprehensively by customs authorities in general administration.
For this reason, the arrival of Law No. 31814 and its subsequent Regulations may be a ray of hope that helps to correct certain procedures that to date have been neglected by SUNAT and in this way complement the SMART Borders program in an operational and legislative manner, with the purpose of ensuring that SUNAT can comply more strictly with the facilitation of foreign trade and provide citizens with another perspective on the customs control and power imposed by customs authorities.
- https://www.bbc.com/news/world-us-canada-65735769
- https://cdn.www.gob.pe/uploads/document/file/5038703/ley-que-promueve-el-uso-de-la-inteligencia-artificial-en-fav-ley-n-31814.pdf?v=1692895308
- General Customs Law – Article 15.- Foreign trade operatorA foreign trade operator is a natural or legal person authorized by the Customs Administration.
- https://www.elperuano.pe/noticia/119325-sunat-anuncia-programa-fronteras-smart
Lawyer graduated from the César Vallejo University, specialized in customs and foreign trade with more than 8 years of experience in customs and international trade matters, currently working at the Thorne, Echeandía & Lema Law Firm. During his experience he has worked in the provision of advisory services, auditing and representation in litigation related to customs regimes, acceptance of tariff preferences and in contentious administrative procedures related to refunds of tariff duties, among others. Among his latest works, he has served as a speaker in various institutions on customs (IDEM EDUCATION, B&T, CEFODA, VOCANTY), as well as has collaborated in the publication of various books and articles in customs magazines (ICDT of Colombia, COMEXPERU, THEMIS, ADUANANEWS of Argentina).
