ECUADOR Law and Practice Contributed by: Jorge Sicouret Lynch, María Celeste Alvarado, Julia Rovello and Mateo Viteri, Coronel & Pérez
In relation to expert evidence, the COGEP express- ly provides for examination and cross-examination under the same rules applicable to witnesses, which confirms an adversarial structure of questioning at the hearing. In arbitration, the Arbitration Act allows the tribunal to hear witnesses, experts and the parties, but it does not lay down a detailed regime for witness statements, depositions or cross-examination. Those matters are left largely to party autonomy, the applicable institu- tional rules and the tribunal’s case-management pow- ers, consistent with the contractual and flexible nature of arbitration. The COGEP rules apply on a supple- mentary basis within arbitrations in law. 8.5 Expert Evidence Expert evidence is expressly permitted. The COGEP defines an expert as a natural or legal person who, by reason of scientific, technical, artistic, practical or professional knowledge, is able to assist the judge on facts or circumstances relevant to the dispute. In ordinary court proceedings, expert reports are gener- ally issued by experts accredited by the Council of the Judiciary; if no accredited expert exists in a particular field, the judge may request that the Council of the Judiciary obtain a shortlist of professionals for that specific case. In practice, expert evidence is usually introduced by the parties, although the judge may also order a fur- ther expert report or appoint an expert in exceptional circumstances. Experts owe duties of objectivity and impartiality; they must submit their reports on time, comply with the minimum legal and regulatory require- ments applicable to the report, appear at the hear- ing, explain and support their conclusions orally, and answer questions as to their qualifications, impartiality and conclusions. Unjustified failure to attend deprives the report of evidentiary value and may lead to loss of accreditation. In arbitration, the regime is more flexible. The Arbitra- tion Act allows the tribunal to hear experts but does not regulate in detail either their appointment or their duties. Those matters are left largely to party auton- omy, the applicable arbitral rules and the tribunal’s
case-management powers, consistent with the con- tractual and flexible nature of arbitration.
9. Enforcement 9.1 Enforcement of Judgments
In Ecuador, a foreign judgment cannot be enforced directly. It must first be recognised through a recogni- tion proceeding, and, once recognised, it is enforced in accordance with the ordinary enforcement rules of the COGEP. Jurisdiction to recognise a foreign judgment lies with the Provincial Court of the domicile of the party against whom enforcement is sought. Enforcement itself is then carried out by the first-instance judge of the defendant’s domicile with subject-matter juris- diction. If the defendant has no domicile in Ecuador, jurisdiction lies with the courts of the place where the assets are located or where the judgment is to take effect. For recognition to be granted, the Provincial Court must verify, among other things, that the foreign judg- ment is authentic, final and has become res judicata under the law of the state of origin, that the supporting documents have been legalised, that a translation has been provided where necessary, and that the defend- ant was properly served so that their rights of defence were respected. The application must also state the place for service on the party against whom the judg- ment is to be relied upon. The respondent has five days to oppose the applica- tion and produce supporting evidence. The chamber must decide within 30 days from service and, if a sub- stantiated objection is filed and the complexity of the matter so requires, it may hold a hearing. The decision can only be challenged before the same court, but it cannot be appealed before a superior-level court. Ecuadorian courts do not review the merits of the foreign judgment. Once recognised judgments have the force granted to them by the applicable interna- tional treaties and conventions, they are enforced in the same manner as any other enforceable title under Ecuadorian procedural law.
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