ECUADOR Law and Practice Contributed by: Oswaldo Santos Dávalos and Bernarda Haro Aillón, Santos Burbano de Lara
6. Preliminary and Interim Relief 6.1 Types of Relief
of an emergency arbitrator does not preclude sub - sequently applying to the ordinary courts for interim relief. Article 9 of the RLAM allows the arbitral tribunal, once constituted, to modify, suspend or revoke measures ordered by a judge or by the emergency arbitrator. 6.3 Security for Costs Neither the LAM nor the RLAM provides for security for costs, though they do not prohibit it. An arbitral tribunal may order it in exercise of the gen - eral power to order interim measures under Article 8 of the regulations. In practice, it is not a common measure in domestic arbitration. Article 9 of the LAM provides for a different form of security: the one the tribunal may require from the par - ty requesting an interim measure, to cover the com - pensation for harm to the opposing party if the claim is found unfounded in the award. The party against whom the interim measure is ordered may request its suspension upon posting sufficient security. On the allocation of costs, see 10.3 Recovering Interest and Legal Costs . Domestic arbitration is governed by the LAM, the RLAM and, on a subsidiary basis, the COGEP. Article 38 of the LAM provides that the applicable procedural rules may be those established by law, those of the relevant arbitration centre, those stipulated in the arbi - tration agreement, or those chosen by the parties. Article 10 of the RLAM provides that the parties may freely set the rules of procedure, directly or by refer - ence to arbitration rules, and that, absent agreement, the tribunal determines them. The same article makes subsidiary application of the COGEP conditional where the tribunal considers it appropriate and where such application does not contravene the principles of arbitration. In practice, tribunals are increasingly reluctant to apply the rules of the COGEP. 7. Procedure 7.1 Governing Rules Domestic Arbitration
Article 9 of the LAM and Article 8 of the RLAM empow - er the arbitral tribunal to order interim measures. They are binding on the parties. Article 8 of the RLAM lists their purposes: • to maintain or restore the status quo, to prevent the continuation of present harm or the materialisation of imminent harm; • to preserve the assets that are the subject of the proceedings or those of the debtor or creditor; and • to preserve evidence, to secure the performance of obligations and to preserve the jurisdiction of the arbitral tribunal. The list is not exhaustive, the tribunal may order any measure it considers necessary. The same article recognises that power in the emer - gency arbitrator provided for in the centres’ rules. Article 9 of the LAM allows arbitrators to enforce inter - im measures directly where the parties so stipulate in the arbitration agreement, requesting the assistance of the public, judicial, police and administrative offi - cials required. 6.2 Role of Courts Ordinary courts may grant interim measures even where the dispute is submitted to arbitration, with - out this affecting the arbitral tribunal’s jurisdiction or implying a waiver of the agreement. Article 8 (2) of the RLAM allows the interested par - ty, before the tribunal is constituted, to request the interim measures set forth in the COGEP or any other measure provided for in that article. Such measures may be sought from the civil judges who would have had jurisdiction absent the arbitration agreement. Emergency Arbitration Emergency arbitrationis recognised in Article 8 of the RLAM and developed in the rules of the leading cen - tres. Its decisions are binding and their scope is as described in 6.1 Types of Relief . The appointment
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