ECUADOR Law and Practice Contributed by: Oswaldo Santos Dávalos and Bernarda Haro Aillón, Santos Burbano de Lara
International Arbitration Article 42 of the LAM provides that international arbi - tration is governed by the treaties, conventions, proto - cols and other instruments of international law signed and ratified by Ecuador. It further recognises the free - dom of the parties to agree, directly or by reference to a set of rules, on the constitution of the tribunal, the conduct of the proceedings, the language, the appli - Article 42 of the LAM requires, for public entities to submit to international arbitration, the express authorisation of the institution’s highest authority and a favourable report from the Attorney General, unless the arbitration is provided for in international instru - ments in force. Article 3 of the RLAM requires prior authorisation from the Attorney General to agree on a seat abroad, limited to verifying that the agreement does not contravene the law of the place of the seat. On the other requirements of agreements with public entities, see 3.1 Enforceability . cable law, the jurisdiction and the seat. Limit Applicable to the Public Sector Article 422 of the constitution prohibits assigning sov - ereign jurisdiction to international arbitration bodies, through treaties or international instruments, in con - tractual or commercial disputes between the state and private natural or legal persons. In judgment 74-21- IN/25 the Constitutional Court specified that this pro - hibition operates only where all the factual elements Articles 10 to 29 of the LAM govern the procedural stages of the main arbitration, including the filing of the notice of arbitration and the reply, the media - tion hearing prior to the constitution of the tribunal, appointment of arbitrators, the sustanciación hearing at which the tribunal rules on its own jurisdiction, the evidentiary phase, and the award. A party’s failure to attend the mediation hearing does not suspend the arbitration proceedings. of the provision concur. 7.2 Procedural Steps In any event, the parties generally have flexibility in designing their procedure. Article 42, which concerns international arbitration, allows the parties to deter - mine the procedure in its entirety.
In domestic arbitration, the Constitutional Court has accepted the adaptation of the procedural rules in judgments 177-15-EP/20, which upheld resolving the dispute without an oral-argument hearing, and 2573- 17-EP/21. In judgment 2822-18-EP/23 it held that the rules on evidence in arbitration are more flexible than those applied in the ordinary courts. Where the public sector is involved, the authorisation requirements described in 3.1 Enforceability and 7.1 Governing Rules apply. 7.3 Powers and Duties of Arbitrators The arbitrator conducts the proceedings with powers equivalent to those of a judge, except for coercion. Powers Arbitrators have power to rule on their own jurisdic - tion. Article 23 of the LAM addresses the power to admit new evidence. Article 33 of the LAM empow - ers the arbitrator to reject requests aimed at delaying the proceedings. The arbitrator’s powers in relation to interim measures are described in 6.1 Types of Relief and 6.2 Role of Courts . Duties Article 18 of the LAM obliges the arbitrator who accepts the appointment to carry out the mandate and to answer to the parties for the harm arising from its breach. Article 7 of the RLAM limits that liability to wilful misconduct or gross negligence, and extends it to the arbitral institutions, their directors and employ - ees. Article 12 of the RLAM applies the same standard to delay in rendering the award. Article 29 of the Civil Code defines gross negligence as the lack of the care that even negligent and impru - dent persons employ in their own affairs, and equates it to wilful misconduct ( dolo ) in civil matters. Wilful misconduct consists in the positive intention to cause harm. The duty of independence and impartiality is governed as indicated in 4.4 Challenge and Removal of Arbitra- tors and 4.5 Arbitrator Requirements .
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