ECUADOR Law and Practice Contributed by: Oswaldo Santos Dávalos and Bernarda Haro Aillón, Santos Burbano de Lara
In judgment 2520-18-EP/23 the Constitutional Court held that the arbitrators’ decision on their own juris - diction is conclusive and cannot be reviewed by the annulment judge, and that lack of arbitral jurisdiction cannot be raised under the ground in subparagraph (d). Negative rulings on jurisdiction are likewise not sub - ject to review. In judgment 638-17-EP/21 the Consti - tutional Court held that a declaration by the arbitral tribunal that it lacks jurisdiction is not amenable to an EPA, as it does not constitute a final decision. 5.3 Timing of Challenge A judicial challenge to the arbitral tribunal’s jurisdiction is available only once the award has been rendered. Before that point, the question falls to the tribunal itself, pursuant to Article 22 of the LAM. Once the award is rendered, the avenue is the annulment action under Article 31 of the LAM, with the limitations noted in 5.2 Circumstances for Court Intervention and 11.1 Grounds for Appeal . 5.4 Standard of Judicial Review for Article 31 of the LAM establishes limited, procedural grounds, and Article 22 of the LAM assigns the deci - sion on its own jurisdiction to the arbitral tribunal. Judges do not review the arbitrators’ decisions on jurisdiction or admissibility, in line with the criterion of judgment 2520-18-EP/23 cited in 5.2 Circumstances for Court Intervention . On the content of that standard, see 11.3 Standard of Judicial Review . 5.5 Breach of Arbitration Agreement Judges generally decline jurisdiction when the defend - ant raises the defence of the existence of an arbitra - tion agreement. Article 7 of the LAM requires judges to decline juris - diction over claims concerning legal relationships submitted to arbitration and provides that, in case of doubt, the in dubio pro arbitri principle applies. Jurisdiction/Admissibility The standard is deferential.
Arbitration agreements are understood to have been waived where the defendant fails to object to the judge’s jurisdiction. Where the defence is raised, the judicial examination must be limited to verifying whether the dispute falls within the scope of the agreement, in accordance with the case law cited in 3.3 National Courts’ Approach . Judges may not rule on the validity of the agreement. 5.6 Jurisdiction Over Third Parties There is no legal rule that empowers a tribunal to assume jurisdiction on individuals or entities that are not a party to an arbitration agreement. Nonetheless, the Constitutional Court in ruling 74-21-IN/25 said that third parties could have the right to participate in an arbitration procedure if failure to do so could curtail their rights (without elaborating further). Article 6 of the RLAM extends the effects of the arbitra - tion agreement to non-signatories in three scenarios: • to those who consented to submit to arbitration in accordance with the precepts of good faith, through their active and decisive participation in the negotiation, conclusion, performance or termi - nation of the transaction; • to those who seek to derive rights or benefits from that transaction, such as successors or assignees; and • to the administrative bodies that originated the administrative acts, in the case of arbitrations with public entities. The provision does not distinguish between domes - tic and foreign parties, and survived constitutionality review in judgment 74-21-IN/25. In practice, arbitral tribunals apply these rules with caution and are reluctant to draw into the arbitration those who did not sign the agreement. On the effects of the award vis-à-vis third parties, see 13.5 Binding of Third Parties .
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