ECUADOR Law and Practice Contributed by: Jorge Sicouret Lynch, María Celeste Alvarado, Julia Rovello and Mateo Viteri, Coronel & Pérez
• when a party withdraws from the dispute, unless otherwise agreed by the parties; • when an appeal is deemed abandoned or is reject- ed and declared to have been filed in bad faith, as an abuse of rights, or with procedural disloyalty; • when the debtor fails to appear at the hearing and has not delivered the asset in proceedings for pay- ment by consignment; or • any other circumstances established by law. If none of these circumstances can be proven, each party shall bear its own legal costs. 5.6 Assessment of Costs Generally, the allocation of costs is determined by the principle of freedom of contract, that is, the agree- ment between the parties concerning the distribu- tion of the court costs. If no such agreement exists, a party may only be required to pay all the legal costs to the party who litigates in an abusive, malicious, reckless manner, or with procedural disloyalty. The factors taken into consideration for the allocation of costs include the expenses incurred, encompassing all judicial costs arising from the proceedings, among others, attorneys’ fees of the opposing party’s coun- sel, expert witness fees, the cost of required publica- tions, and the payment for copies, certifications, or other documents. The most common interim reliefs are the attachment of assets, prohibition on the disposal of real estate, and the withholding of funds or credits held by third parties. 6.2 Interim Relief to Support Arbitration and ADR With respect to arbitration, the Arbitration Act provides arbitrators with the authority to order and enforce interim measures. However, this legal capacity must be understood in two stages: • when the arbitral tribunal has not yet been consti- tuted, courts may order and enforce interim meas- ures. The Law establishes that resorting to ordinary courts in such cases does not imply a limitation or 6. Interim Remedies 6.1 Availability of Interim Relief
waiver of the arbitration agreement, in accordance with Article 9 of the Arbitration Law; and • once the arbitral tribunal has been constituted, arbitrators have the authority to order and enforce interim measures. For the enforcement of such measures, provided that the parties have so agreed in the arbitration agreement, arbitrators may request the assistance of public, judicial, police, and administrative authorities without the need to resort to ordinary courts. With respect to other ADR mechanisms, Ecuadorian law does not expressly provide for the granting of interim measures by judges. 6.3 Timing of Applications for Interim Relief Interim measures may be requested before filing a lawsuit and during the proceedings. 6.4 Security for Costs Under Ecuadorian law security of costs is not avail- able. 6.5 Interim Injunctions In general, courts in Ecuador may grant interim relief in a limited manner, as they may only order those meas - ures expressly provided in the COGEP, namely: • travel restrictions and prohibition from leaving the country; • attachment (retention); • seizure; and • prohibition on the transfer of real estate. However, pursuant to Article 9 of the Arbitration Law, arbitral tribunals have broader authority, being able to order any interim relief or injunction necessary to secure the assets subject to the dispute or to guaran- tee the outcome of the proceedings. 6.6 Summary Judgment Summary judgment does not exist in Ecuadorian law. However, there is a situation with similar effects, spe- cifically, when a defence based on the statute of limi- tations, legal blockade of the action due to lapse of time, res judicata, or settlement is raised, the judge must issue a ruling after hearing the parties’ argu- ments at the preliminary hearing and, if the defence
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