ECUADOR Law and Practice Contributed by: Oswaldo Santos Dávalos and Bernarda Haro Aillón, Santos Burbano de Lara
7.4 Legal Representatives There is no express regulation in the LAM or the RLAM regarding particular qualifications for legal representa - tives. Article 324 of the Organic Code of the Judicial Func - tion (COFJ) requires, in order to act as counsel before the courts and tribunals of the Republic, a law degree, enjoyment of political rights, registration with the Bar maintained by the Judiciary Council, and the absence of the incompatibilities set forth in Article 328. Article 36 of the COGEP requires the parties to appear in proceedings with the representation of counsel, save for a few exceptions. The application of those rules to arbitration has not been resolved by case law. The arbitral tribunal is not part of the Judicial Function (although it exercises “conventional jurisdiction”), the LAM contains no equivalent requirement, and Article 10 of the RLAM admits the COGEP only as a subsidiary source. In practice, attorneys acting in domestic arbitrations are always authorised to practise law in Ecuador. There is no rule that demands attorneys acting in international arbitrations seated in Ecuador to be able to practise law in Ecuador. 8. Evidence 8.1 Collection and Submission of Evidence Documentary evidence is submitted with the initial pleadings. Witnesses and expert witnesses are heard at the evidentiary hearing. In practice, there is no doc - ument production or discovery (although disclosure of specific documents held by the other party is often requested and admitted by tribunals). The use of writ - ten witness statements is pervasive in international arbitrations but rare in domestic ones. There are no specific rules for the examination or cross-examina - tion of witnesses. Attorney-client privilege is not regulated as an autono - mous evidentiary category. Its protection rests on the duty of professional secrecy enshrined in the consti - tution.
IBA Rules The IBA rules on the taking of evidence are used in both international and domestic arbitrations by agree - ment of the parties or by decision of the tribunal under Article 10 of the RLAM. The application of (or at least part of) the IBA Rules in domestic arbitrations is increasingly frequent. In judgment 2822-18-EP/23, the Constitutional Court set the hierarchy of sources on evidentiary matters: first, the rules agreed by the parties or the centre’s rules; then those adopted by the tribunal (such as the IBA Rules); and the ordinary procedural rules on a subsidiary basis, provided they do not contravene There are no mandatory rules of evidence in arbitra - tion as long as the tribunal respects the parties’ right to due process. The parties are free to determine the evidentiary rules and, absent their agreement, the tri - bunal is tasked with doing so. The rules set forth in the COGEP apply on a subsidiary basis, as long as they do not contravene the principles of arbitration. the nature of arbitration. 8.2 Rules of Evidence In practice, tribunals hearing domestic arbitrations show greater flexibility in the taking of evidence than they would if they relied solely on the rules of the COGEP. In court proceedings, the COGEP applies mandatorily. 8.3 Powers of Compulsion Arbitrators have no powers of compulsion over third parties for the production of documents or the attend - ance of witnesses. The LAM provides no mechanism of judicial assistance for the taking of evidence equiv - alent to that of Article 27 of the UNCITRAL Model. The proposed amendments described in 2.2 Changes to National Law would affect the arbitrator’s powers of compulsion.
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