ECUADOR Trends and Developments Contributed by: Jorge Sicouret Lynch, Víctor Hugo Sicouret Zea, Karla Condo and Carlos Correa, Coronel & Pérez
Arbitration and Public Entities Ecuador’s Constitution expressly recognises arbitra- tion as a valid mechanism for solving disputes involv- ing the public sector, subject to certain statutory safeguards. Most notably, in the case of international arbitration, prior authorisation from the Office of the Attorney General ( Procuraduría General del Estado ) is required for the inclusion of an arbitration clause in the relevant agreement. This requirement does not apply to domestic arbitration, for which such prior authorisa- tion is not necessary. In this context, the ECC has clarified that arbitra- tion is not incompatible with public law, but rather a legitimate forum for resolving contractual disputes involving public entities. In Decision No 74‑21‑IN/25 (February 2025), the ECC confirmed that administra- tive acts issued within the framework of a contractual relationship – that is, acts adopted by public entities in their capacity as contracting parties – may be submit- ted to arbitration, provided they are connected to an arbitrable contractual dispute. This includes disputes arising from contract termination decisions, penal- ties, performance measures, or enforcement actions adopted by public authorities in the course of contract performance. At the same time, the ECC has made it clear that arbi- tration does not displace the general judicial review of the legality of administrative acts as such. These matters fall outside the scope of arbitration and must be brought before the ordinary courts in accordance with the Organic General Code of Processes ( Código Orgánico General de Procesos – COGEP). In Decision No 74-21-IN/25, the ECC has also endorsed the application of non-signatory theories to public entities. Where a public entity has played an “active” and “decisive” role in the negotiation, exe- cution, performance or termination of a contract, or where its administrative actions are inseparably linked to the underlying contractual dispute, arbitral jurisdic- tion may extend to that entity, even in the absence of a formal signature.
Powers of Arbitral Tribunals in the Conduct of Proceedings Another central feature of arbitration in Ecuador lies in the broad powers granted to arbitral tribunals in the conduct of proceedings. These powers are grounded in the Arbitration and Mediation Act (hereinafter, the “Arbitration Act”) and have been progressively shaped by the case law of the ECC, which has clarified both their scope and their limits in light of the guarantees of due process. In this regard, two aspects are of particular impor- tance: • the role of the arbitral tribunal in determining the procedural rules of the arbitration, including mat- ters of evidence; and • the recent recognition of the iura novit arbiter prin- ciple, which grants arbitrators broad discretion to act on their own initiative in certain circumstances. Powers in procedural and evidentiary matters Under Ecuadorian law, arbitral proceedings are gov- erned, primarily, by party agreement. Article 38 of the Arbitration Act provides that arbitration shall be con- ducted in accordance with the rules agreed by the parties, including institutional rules where applicable. Article 37, in turn, clarifies that ordinary procedural rules – such as those set out in the COGEP – apply only on a supplementary basis and in so far as they do not conflict with the nature of arbitration. In the absence of agreement, however, arbitral tribu- nals are empowered to determine the procedure. This follows from Article 10 of the Regulation to the Arbi- tration Act, which recognises the parties’ freedom to define procedural rules and, failing that, authorises the tribunal to adopt those it considers appropriate in light of the circumstances of the case. One procedural area in which arbitral tribunals in Ecuador enjoy significant discretion is the taking of evidence. Articles 22 and 23 of the Arbitration Act authorise arbitral tribunals to assess evidence requested by the parties and to order additional evi- dentiary measures, even ex officio, where necessary for the resolution of the dispute. Decisions adopted in this regard fall within the exclusive domain of the
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