ECUADOR Law and Practice Contributed by: Jorge Sicouret Lynch, María Celeste Alvarado, Julia Rovello and Mateo Viteri, Coronel & Pérez
8. Evidence 8.1 Disclosure
is accepted, dismiss the case without further proceed- ings.
Ecuador does not follow a common law-style disclo- sure or discovery model. There is no general duty on parties to disclose all relevant documents, including documents adverse to their own case. Instead, docu- ment production is primarily party-driven and tied to the parties’ evidentiary burden and to the specific documents on which they intend to rely. As a rule, a party must file, with the claim, defence, counterclaim or reply, the documentary evidence previously in its possession or that could reasonably be obtained by it. If a party does not have access to documentary evidence or expert’s reports, it must identify the material, describe its content, indicate where it is located and request the measures neces- sary for its incorporation into the proceedings. The court may also order the opposing party or third par- ties to produce or facilitate documents or information that are not in the parties’ possession where judicial assistance is required to obtain them. Ecuadorian procedure also allows targeted pre-action and in-proceeding mechanisms to obtain documents. Preparatory proceedings may be sought before the claim is filed, and inspection measures may allow the judge to examine documents directly; persons required to participate in a judicial inspection must co-operate, and the court may compel compliance with the assistance of the police if necessary. 8.2 Privilege Ecuadorian legal framework does not recognise a single, self-contained doctrine of privilege as in the common-law sense. Instead, protection for cer- tain communications and information is addressed through professional secrecy and specific statutory rules allowing a witness to refuse to answer or penalis- ing improper disclosure. The clearest procedural rule is found in the COGEP: a witness may refuse to answer questions that would breach a duty of confidentiality or secrecy arising from their status, office, employment, profession, trade or an express provision of law. In that sense, the sys- tem does recognise protections functionally similar to
7. Mass Claims and Class Actions 7.1 Procedural Mechanisms Ecuadorian law does not recognise class actions. 7.2 Standing Requirements Ecuadorian law does not recognise class actions. 7.3 Relief Ecuadorian law does not recognise class actions. 7.4 Class Actions, Mass Claims and Arbitration Class actions do not exist under Ecuadorian law. Nor does Ecuadorian Arbitration Act recognise class arbi- tration a specific procedural mechanism. However, mass claims may be pursued in arbitration in the form of multi-party or consolidated proceedings between identified parties. Some institutional rules do provide mechanisms allowing disputes involving multiple parties or con- tracts to be heard together, as well as the consolida- tion of arbitrations. The Rules of the Arbitration and Mediation Centre of the Quito Chamber of Commerce expressly regulate consolidation of proceedings, multi-party arbitration, multiple contracts and third- party intervention; the CAM AMCHAM Rules provide for consolidation of arbitrations, and the arbitration rules in force at the arbitration centre of the Guayaquil Chamber of Commerce provide for joinder of parties and consolidation of arbitrations. 7.5 Trends There are no clearly developed trends in Ecuador in relation to mass claims as an autonomous procedural category. Disputes involving multiple affected parties are usually channelled through ordinary procedural mechanisms, such as joinder of parties and consoli- dation of proceedings.
181 CHAMBERS.COM
Powered by FlippingBook