ECUADOR Trends and Developments Contributed by: Jorge Sicouret Lynch, Víctor Hugo Sicouret Zea, Karla Condo and Carlos Correa, Coronel & Pérez
foreign arbitral awards are directly enforceable under conditions equivalent to domestic awards and without additional formalities. As a result, the Ecuadorian system now tends toward a convergence between domestic and foreign awards at the enforcement stage, although some debate remains regarding the scope of admissible defences. In particular, the discussion focuses on whether oppo- sition to the enforcement of foreign awards should be limited exclusively to the narrowly circumscribed grounds provided under domestic law – those set out in the COGEP and the Regulations to the Arbitration Act – or whether it may also encompass the grounds for refusal set out in Article V of the New York Conven- tion, which are comparatively broader. Treaty-Based Arbitration Most recently, the ECC addressed Ecuador’s position on international investment arbitration. In Opinion No 19-25-TI/26A (March 2026), it declared the Investment Agreement between Ecuador and the United Arab Emirates (UAE) constitutional, subject to a specific condition related to the arbitral clause, as explained as follows. In doing this, the ECC departed from its prior decision in Opinion No 2-23-TI/23, which had adopted a restrictive interpretation of Article 422 of the Con- stitution. In that earlier opinion, the Court effectively treated Article 422 as completely precluding investor- State arbitration. In its recent opinion, the ECC adopted a more pre- cise approach by distinguishing between contract- based claims and treaty-based claims. On that basis, it clarified that Article 422 does not establish a general prohibition of arbitration, but a limited restriction that applies only in contractual or commercial disputes between the State and private parties where arbitra- tion entails a transfer of sovereign jurisdiction. Applying this interpretation, the ECC held that arbi- tration under the Ecuador-UAE treaty is confined to breaches of international obligations arising under the treaty, such as fair and equitable treatment or unlaw- ful expropriation. These claims concern the interna- tional responsibility of the State and do not involve the enforcement of contractual obligations.
At the same time, the ECC recognised that certain treaty clauses may blur this distinction, particularly “umbrella clauses” or broadly drafted dispute resolu- tion provisions, which may extend arbitral jurisdiction to contractual commitments, and may therefore fall within the prohibition of Article 422. For that reason, the ECC required a clear delimitation of the arbitral clause and held that the treaty must exclude any inter- pretation that would extend jurisdiction to contractual or commercial disputes. On this basis, it upheld the constitutionality of the treaty, subject to the incorpora- tion of an express exclusion of purely contractual and commercial disputes. Opinion No 19-25-TI/26A marks a shift in the ECC’s approach to treaty-based arbitration, establishing that investor-State arbitration is constitutionally permissi- ble, in so far as it is confined to treaty-based claims. Conclusions Ecuador’s arbitration framework reflects a clear and consistent direction. Arbitration is treated as a consti- tutionally protected mechanism of dispute resolution, including in disputes involving public entities. Judicial intervention is limited. Arbitral tribunals are afforded broad authority. This approach is visible from the outset. Arbitration agreements are respected, and ordinary courts must decline jurisdiction once the existence of such an agreement has been prima facie verified. Questions concerning the validity, scope, or arbitrability of the dispute are reserved to arbitral tribunals, in line with a robust understanding of the Kompetenz - Kompetenz principle. The same logic extends to the conduct of proceedings. Arbitral tribunals exercise broad proce- dural and evidentiary powers, including the author- ity to determine the applicable rules, assess and order evidence, and apply the law beyond the par- ties’ arguments under the iura novit arbiter principle. This framework extends to disputes involving pub- lic entities, where arbitration operates as a forum for resolving contractual controversies without displacing judicial control over the legality of administrative acts. Judicial control exists, but in a confined form. The annulment action is limited to strict procedural grounds listed in the law and does not permit a review of the
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