ECUADOR Law and Practice Contributed by: Oswaldo Santos Dávalos and Bernarda Haro Aillón, Santos Burbano de Lara
There is no provision enabling an advance waiver of the annulment action. Article 13 (5) of the RLAM provides that public-sector entities are not obliged to bring it, save where there are clear grounds for a ground that may affect the validity of the award. The incorporation of a second arbitral instance agreed by the parties is debated, but there appears no reason to deny its permissibility under Article 38 of the LAM. 11.3 Standard of Judicial Review The standard is deferential. Judicial review does not reach the merits of the award. The president of the provincial court does not review the application of substantive law, does not reassess the evidence, and does not reinterpret the merits. The examination is limited to verifying whether the ground invoked by the party is sustained, on the basis of the facts that party alleges, and operates with a pre - sumption of the award’s validity. The same standard governs questions of jurisdiction, as indicated in 5.4 Standard of Judicial Review for Jurisdiction/Admis- sibility . Rules of Article 13 of the RLAM That provision imposes the principles of procedural flexibility, minimal intervention, specificity, conserva - tion, validation, preclusion and materiality, and instan - tiates them in some rules, including the following: the affected party must have objected unequivocally and in a timely manner before the arbitral tribunal; annul - ment is confined to the affected decisions and not necessarily to the entire award; etc. Constitutional Case Law In judgment 2520-18-EP/23, the Constitutional Court ruled that if the president of the provincial court resolves matters relating to the arbitrability of the sub - ject matter under the ground set out in Article 31 (d) of the LAM, he or she violates the right to due process. In judgment 2822-18-EP/23, the Court held that the president of the provincial court violates due process by assessing the admissibility of the evidence taken in the arbitration. In judgment 1057-19-EP/24, it held that this review cannot be exercised sua sponte . In judgment 1301-21-EP/24, it set aside a decision that
had annulled an award on the basis of an argument introduced by the judge and not raised by the parties. Subsequent constitutional review likewise does not reach the merits of the arbitral decision.
12. Enforcement of an Award 12.1 New York Convention
Ecuador is a party to the 1958 New York Convention (NYC), with the reciprocity and commerciality reserva - tions of its Article I.3. It deposited the instrument on 3 January 1962, and the Convention has been in force for the country since 3 April of that year. The reservations have no practical effect. Article 42 of the LAM and Article 15 of the RLAM equate interna - tional awards to domestic ones without distinguish - ing the state of origin or the commercial character of the relationship. Hence, the domestic regime applies pursuant to Article VII of the NYC because it is more favourable than the regime established by the NYC. Ecuador is also a party to the 1975 Inter-American Convention on International Commercial Arbitration. In investment matters, it denounced the ICSID Con - vention in 2009 and became a party once again in 2021. 12.2 Enforcement Procedure The award is enforced as a final judgment and without prior recognition, whether the arbitration is seated in Ecuador or abroad. Article 363 of the COGEP recognises the award as an enforcement title ( título de ejecución ). Article 15 of the RLAM provides that international awards, wheth - er seated within or outside Ecuadorian territory, are enforced before the same judge and in the same man - ner as domestic ones, without any prior exequatur . In judgment 3232-19-EP/24, of 9 May 2024, the Consti - tutional Court held that requiring prior recognition of an award violates the rights to legal certainty and to effective judicial protection.
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