ECUADOR Trends and Developments Contributed by: Jorge Sicouret Lynch, Víctor Hugo Sicouret Zea, Karla Condo and Carlos Correa, Coronel & Pérez
Coronel & Pérez 9 de Octubre y Malecón Simón Bolívar Edificio La Previsora Piso 24 Guayaquil - Ecuador Tel: +593 4 3519 900 Email: marosemena@coronelyperez.com Web: coronelyperez.com
Ecuador: A Pro-Arbitration Jurisdiction In recent years, Ecuador has positioned itself as an arbitration venue very favourable for both domestic and international users. Through a combination of legislative clarity and a con- sistent line of Constitutional Court decisions, Ecua- dor has steadily moved toward a model that strongly favours arbitration as a preferred mechanism for dis- pute resolution. Under the current legal framework, arbitration agreements are respected from the outset, arbitral tribunals are entrusted with the authority to rule on their own jurisdiction and conduct the pro- ceedings with broad discretion, and judicial interven- tion is confined to exceptional circumstances, both at the stages of review and enforcement. This framework – and related developments – will now be examined in greater detail. Deference to Arbitral Tribunals and the Role of Ordinary Courts A defining feature of Ecuador’s arbitration framework in recent years has been the consolidation of a highly deferential, arbitration-supportive judicial model, paired with a deliberately restrained role for ordinary courts when arbitration agreements are involved. This development has been driven primarily by the Ecua- dorian Constitutional Court (hereinafter, the “ECC”), which has consistently recognised arbitration as a constitutionally protected dispute resolution mecha- nism, entitled to minimal judicial interference. At the core of this model lies the ECC’s firm embrace of the Kompetenz Kompetenz principle, under which arbitral tribunals are vested with exclusive – and broad
– authority to determine their own jurisdiction, includ- ing any objections related to the existence, validity, scope, or applicability of the arbitration agreement. This principle entails, therefore, a dual obligation: • disputes covered by an arbitration agreement must be submitted to arbitration; and • ordinary courts must refrain from adjudicating them. It should be noted that the ECC has given this princi- ple a particularly robust interpretation. In a consistent line of cases – now exceeding eight decisions – the ECC has held that, when an ordinary judge is con- fronted with a preliminary objection based on the existence of an arbitration agreement, the judge’s role is strictly limited to verifying prima facie whether such an agreement exists. If it does, the judge must immediately decline jurisdiction and refer the parties to arbitration, without engaging in any assessment of the agreement’s validity, scope, enforceability, or the arbitrability of the dispute. Any judicial inquiry beyond this threshold has been deemed incompatible with the constitutional rights to be tried by a competent authority and to legal certainty. Such a pro-arbitration approach is clearly reflected in rulings such as Decisions No 1758-15-EP/20 (Novem- ber 2020), No 707-16-EP/21 (December 2021), No 1010-18-EP/23 (November 2023), and No 2342-18- EP/23 (December 2023), among others. In these rul- ings, the ECC has reiterated that ordinary judges may not even assess the arbitrability of the dispute, or the scope or alleged nullity of the arbitration agreement, as these matters fall within the exclusive domain of arbitral tribunals.
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