ECUADOR Law and Practice Contributed by: Oswaldo Santos Dávalos and Bernarda Haro Aillón, Santos Burbano de Lara
4.3 Court Intervention The ordinary courts do not intervene in the appoint - ment of arbitrators. Article 16 of the LAM assigns that function to the par - ties and, in administered arbitrations, to the arbitration centre. In ad hoc arbitrations, the appointment falls to the parties under the arbitration agreement. The RLAM provides that, where the parties have entered into an arbitration agreement without refer - ence to a specific arbitral institution or to the pro - cedural rules governing the proceedings, the arbitra - tion is deemed to be administered. The claimant may apply either to the centre nearest to the place where the effects of the act or contract occurred, or to its place of business. 4.4 Challenge and Removal of Arbitrators Article 21 of the LAM refers to the grounds for chal - lenge applicable to judges, set out in Article 22 of the COGEP. Most of the grounds set out in the COGEP are not suitable for arbitration. For that reason, in prac - tice, centres and tribunals resort to the International Bar Association Guidelines on Conflicts of Interest in International Arbitration to identify and assess con - flicts. The guidelines are not binding absent the par - ties’ agreement. Article 20 of the LAM governs the replacement of a disqualified arbitrator. On the standards of conduct applicable to arbitrators, Article 1 of the RLAM provides that arbitral tribunals shall have full independence and autonomy, and prohibits any state authority from interfering in their functions. Neither the LAM nor the RLAM develop a catalogue of standards of conduct. That development falls to the codes of ethics that Article 40 (e) of the LAM requires each centre to issue. see 4.5 Arbitrator Requirements . 4.5 Arbitrator Requirements
Arbitration and Mediation Centre of the Quito Chamber of Commerce Its Code of Ethics requires arbitrators to maintain a relationship of trust with the parties and to observe confidentiality in perpetuity over the case documents and deliberations, and to act with impartiality and independence. The code further imposes the duty to disclose any fact that gives rise to justifiable doubts as to the arbitrator’s integrity. Arbitration and Mediation Centre of the Ecuadorian-American Chamber of Commerce Its bylaws require arbitrators to undertake the role with impartiality and neutrality, subject to the principles of confidentiality, impartiality, independence and probity. Article 3 requires immediate written disclosure, to the centre and to the parties, of any circumstance that may cast doubt on the arbitrator’s independence or give rise to reasonable doubts as to their impartiality. Article 22 of the LAM recognises the kompetenz - kom- petenz principle. It is for the arbitral tribunal to rule on its own jurisdiction and on pleas concerning the exist - ence, validity or scope of the arbitration agreement. The Constitutional Court has confirmed this in the judg - ments discussed in 3.3 National Courts’ Approach . The decision on jurisdiction is taken at the sustan- ciación hearing, before the tribunal hears submissions on the merits. 5.2 Circumstances for Court Intervention Judicial intervention on questions of arbitral jurisdic - tion is exceptional. Article 31 of the LAM does not provide for the tribunal’s lack of jurisdiction as a stand-alone ground for annul - ment. Judicial review reaches only those defects that can be brought within one of the exhaustive grounds, in particular that of subparagraph (d), concerning a ruling on matters not submitted to arbitration. 5. Jurisdiction 5.1 Challenges to Jurisdiction
309 CHAMBERS.COM
Powered by FlippingBook