ECUADOR Law and Practice Contributed by: Jorge Sicouret Lynch, María Celeste Alvarado, Julia Rovello and Mateo Viteri, Coronel & Pérez
the arbitral tribunal may directly order the execution of such interim measures with the assistance of the necessary authorities. If no such provision exists, the parties may request the competent court to order the execution of such measures.
Some mediation and arbitration centres have provi- sions in their regulations that establish additional for- mal requirements for conducting ADR. The general consequence of failing to comply with the formal requirements of ADR is the rejection of the case. 4.3 Impact of ADR Where ADR results in a full settlement, the proceed- ings conclude with a settlement agreement covering the matters resolved. If a partial settlement is reached, the trial continues to resolve the issues on which no agreement was reached. Such an agreement has res judicata effect and carries the same legal force as a final judgment, thereby definitively resolving the dis- pute in whole or in part. Where the mediation is entirely unsuccessful, the par- ties retain their right to continue the judicial proceed- ing. Any court process may be initiated or resumed at the stage at which it was previously suspended, without prejudice to the rights of either party. Accordingly, participation in ADR does not restrict or waive a party’s right to litigate or arbitrate but rather operates as a complementary mechanism within the Ecuadorian dispute resolution framework. 4.4 Timing of ADR Under Ecuadorian law, the general rule is that ADR mechanisms may be engaged either by mutual agree- ment of the parties or by judicial decision, ex officio or upon the request of a party. Additionally, Ecuadorian legislation expressly provides in certain cases that ADR may be triggered by statu- tory mandate. Engaging in ADR does not stop limitation periods run- ning. 4.5 Confidentiality Under Ecuadorian law, mediation is confidential and all other ADR proceedings may be confidential if the parties so agree. Notwithstanding, authorised arbitra- tion and mediation centres in the country have their
4. Other ADR Methods 4.1 ADR Procedures
In addition to arbitration, Ecuadorian law legally rec- ognises the following formal alternative dispute reso- lution methods: mediation, community mediation, dispute boards for public contracts, and conciliation. Notwithstanding, Article 190 of the Constitution establishes an open-ended classification to create additional alternative procedures for conflict resolu- tion. In this regard, authorised mediation and arbitra- tion centres in the country may add new alternative methods for conflict resolution, including emergency, expedited, international, social, and statutory arbitra- tion, among others. 4.2 Requirements to Engage in ADR Ecuadorian Law sets forth certain formal requirements for parties to engage in ADR procedures other than arbitration. In regard to mediation, which is the most important ADR procedure (excluding arbitration), those require- ments are: • the parties must have general legal capacity to enter into contracts; • the subject matter must be legally open to compro- mise; • the consent to enter into mediation has to be in writing; • mediation may be requested through mediation centres or duly authorised independent mediators, or ordered by a judge within a trial; • the request for mediation must be in writing and must include the following elements: (a) identification of the parties; (b) their residential addresses; (c) their telephone numbers, if possible; and (d) a brief description of the nature of the dispute.
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