In Ecuador, arbitration is constitutionally recognized as an effective alternative to litigation for the conflict resolution. However, the arbitration procedure must be considered to be far removed from the ordinary judicial process, which is why the question arises. This sets the basis for the choice of the topic of investigation.
15 october 2019
Title: Arbitration and Effective Legal Protection in Ecuador
Author: Angélica Guerrero Robalino
Does going to arbitration in Ecuador mean giving up the right to effective legal protection?
The doubt arises from the legal coexistence of arbitration and jurisdiction. To solve this doubt we must ask ourselves if, at the different moments of the arbitration process (access, development, and execution), the fundamental right to effective legal protection is safeguarded, in the manner provided for in the Constitution and in Ecuadorian legislation. Based on these considerations, this research work consists of four chapters:
The first chapter briefly reviews the origins of arbitration as an institution, from Roman times to the present day, and also presents a historical account of the evolution of the figure of arbitration in Ecuador. It dwells on the definition of this heterocomposite mechanism, examines its classes, analyses the different theories on the legal nature of arbitration, and establishes which thesis is accepted in Equadorian legislation.
The second chapter aims to define the constitutional right of an effective legal protection. Thus studying it as a complex right, conceptually and significantly deepening the right to: justice access, to a reasoned substantive decision, and to the enforcement of the final decision. This introspection is made in order to determine the applicability in general terms of these guarantees in national arbitration, and from there, to discuss the obstacles to access to justice at the arbitral seat, such as the appearance of third parties linked to the arbitration who are not signatories to the arbitration agreement.
The third chapter deals with the birth and development of arbitration in the Ecuadorian system. It focuses on the jurisdictional nature of this heterocomposite mechanism and its relationship with the principle of jurisdictional unity to continue with the study of the arbitration agreement, which gives rise to the process, and the arbitration procedure in accordance with the Law.
The fourth chapter deals with the termination of the arbitration process, focusing on the analysis of the arbitral award, its execution and legal effects within the Ecuadorian system. It identifies cases with unacceptable times for the execution of an award, violating the right to effective protection. The nullity action is deepened, and the deficiencies and obscurities that the regulations present in this respect, due to important omissions in the law, are raised. Thus generating incongruities and disparity in the rulings of the Ecuadorian Court. Lastly, it addresses the issue of precautionary protection as a means of ensuring the effectiveness of awards, and effective legal protection.
Finally, after developing the four chapters that compound the research work, we conclude on the compatibility of arbitration and effective legal protection, responding to the question posed at the beginning of this dissertation by pointing out that resorting to arbitration does not imply renouncing the right to effective legal protection. On the contrary, it is a cause of this constitutionally recognized right. However, it is a requirement that the Arbitration and Mediation Law include aspects that have been omitted, such as the legitimation of a third party, who is not a signatory, to the arbitration process, provided that it is clear that there is a connection between its interest and the object of the dispute, or if it presents an identity in the contractual relationship. Similarly, it shall be imperative to describe clearly and exhaustively the grounds for invalidity of the arbitration award, and to include those grounds that have been omitted and require attention, such as those relating to the validity of the arbitration agreement, lack of competence, independence and impartiality of the arbitrators, and lack of motivation of the arbitration awards.
Effective legal protection goes beyond the judicial sphere, and is present in the arbitration process. Nevertheless, it is necessary to clearly establish the limits and the control that the Ecuadorian State carries out, balancing protection with constitutional law, respecting the nature of arbitration in its contractual, jurisdictional and procedural aspects.
