ECUADOR Law and Practice Contributed by: Jorge Sicouret Lynch, María Celeste Alvarado, Julia Rovello and Mateo Viteri, Coronel & Pérez
3.8 Court Powers The courts have a key role in support of arbitration. First, where there is an arbitration agreement, judges must decline jurisdiction and favour referral to arbi- tration. Second, the courts enforce arbitral awards, which are treated as final judgments for enforcement purposes. Third, courts must assist with the execu- tion of interim measures where the arbitration agree- ment does not provide for direct assistance by public authorities to the arbitral tribunal. 3.9 Court Intervention If court intervention is understood as judicial action that may affect the outcome of the arbitral proceed- ings, Ecuadorian law provides for very limited circum- stances in which such an intervention may occur. In practice, the principal form of substantive judicial intervention is the hearing and determination of an action to set aside an arbitral award. The Ecuadorian arbitration framework is expressly designed to minimise judicial interference. Courts do not review the merits of the dispute and are gener- ally precluded from intervening during the arbitral proceedings themselves, save for narrowly defined instances expressly permitted by statute. As a result, arbitral autonomy is broadly respected. 3.10 Relief In arbitration, all the final reliefs available in ordinary court proceedings are available. Regarding interim reliefs, Article 9 of the LAM and Article 8 (1) of its Regulations expressly give arbitral tribunals broad authority to order measures they deem necessary to secure the assets in dispute, to guarantee the out- come of the proceedings, to maintain or restore the status quo pending resolution of the dispute, to pre- vent ongoing harm, imminent harm or impairment of the arbitral proceedings, to preserve assets or evi- dence, to guarantee compliance with the obligations at issue, and to preserve the arbitral tribunal’s jurisdic- tion. The most common interim reliefs that arbitration tribunals grant are attachment orders over assets, prohibitions on disposal or transfer of assets, reten- tion orders over funds or credits held by third parties, measures to preserve evidence, and orders aimed at maintaining the status quo pending the award. If the parties have so provided in the arbitration agreement,
in Quito. All of these appear on the official registry of approved arbitration centres maintained by the Coun- cil of the Judiciary. 3.6 Length of Proceedings In domestic arbitration, the statutory framework pro- vides for a relatively compressed timetable on the merits. Once the substantiation hearing has taken place and the tribunal has declared itself competent, the tribunal must issue its award within a maximum period of 150 days, which may be extended once for an equivalent period where strictly necessary. In practice, however, the overall duration of the pro- ceedings is typically longer, as this statutory time limit does not include several earlier and subsequent stag- es of the process. In particular, it does not encompass the service of the claim on the respondent, the time allowed for the statement of defence, the mediation hearing, the constitution of the arbitral tribunal, or any post-award clarification or correction proceedings. 3.7 Regulation of Arbitration The key legal sources are the Constitution and the Arbitration Act. Article 190 of the Constitution recog- nises arbitration and mediation for matters capable of settlement and lays down the special rule for public procurement arbitration. The Arbitration and Mediation Law ( Ley de Arbitraje y Mediación – LAM) is the princi- pal statute governing domestic arbitration, including the arbitration agreement, arbitrability, constitution of the tribunal, procedure, interim measures, the award, annulment and enforcement. For international arbi- tration, Article 42 provides that it is governed by the treaties, conventions, protocols and other instruments of international law subscribed and ratified by Ecua- dor, while also allowing broad party autonomy as to procedure, language, applicable law, jurisdiction and seat. The COGEP is also important for enforcement: it treats both domestic and foreign arbitral awards as enforceable titles without the need of recognition in the case of the latter. Ecuador is also a contracting State to the 1958 New York Convention.
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