ECUADOR: An Introduction to Dispute Resolution

Main Dispute Resolution Matters 

The Constitution of the Republic of Ecuador (“the Constitution”) provides general procedural guidelines that are included, among others, in Articles 75 and 76. Article 75 promotes free access to justice and the effective, impartial and expeditious protection of rights and interests, according the principles of immediacy and celerity. Meanwhile, Article 76 concerns the guarantee of due process, including the following principles:

 - presumption of innocence;

 - typicality of the infraction and the corresponding sanction;

 - evidence obtained or used in a manner that is contrary to the Constitution or the law shall have no validity;

 - the right to be heard and to have the time and facilities to prepare one’s defence;

 - public access to the proceedings;

 - the right to be judged by an independent, impartial and competent judge; and

 - decisions taken by public authorities must be substantiated.

These regulations have the dual character of being substantive yet also citizens’ rights.

In addition, Chapter IV of the Constitution titled “Judicial and Indigenous Justice Branch of Government”, describes the entities responsible for the administration of justice, such as:

 - the National Court of Justice;

 - the provincial courts of justice;

 - the specialised courts and tribunals provided by law; and

 - the courts of the peace.

The Constitution also recognises arbitration as an alternative method of dispute resolution. ADR methods and their procedural rules are discussed later in this overview.

The Constitution is a compilation of principles and rights and, upon the violation of those rights, remedies have been established in the form of “jurisdictional guarantees”. These guarantees depend on the type of rights violated and include:

 - protection proceedings – for the direct and effective defence of rights recognised by the Constitution;

 - a writ of habeas corpus – to recover liberty where it has been illegally, arbitrarily or illegitimately deprived as well as to protect the life and physical integrity of individuals in prison;

 - petition for access to public records – to access information when it has been expressly or tacitly denied (or is incomplete or unreliable);

 - a writ of habeas data – to access documents and data held by banks or to access archives and reports that are considered personal and are held by public or private entities in any type of system;

 - proceedings for failure to comply – to guarantee the execution of regulations and the enforcement of judgments or rulings by international human rights organisations; and

 - extraordinary proceedings – against final judgments or rulings in which rights recognised in the Constitution have been violated by action or omission.

All these actions are regulated and developed by the Organic Law of Jurisdictional Guarantees and Constitutional Control.

Relevant Legislation 

Organic Code of the Judiciary 

This code describes the structure of the judiciary, including its entities and internal control rules, as well as specific provisions regarding the different courts. It also recognises the jurisdiction and competence of the judges and the regulations regarding the relations between the servers of the judiciary and other subjects involved in the administration of justice.

General Organic Code of Procedure 

This code mainly develops the fundamental principles that govern most of the judicial proceedings in different matters – except for constitutional matters – such as access to justice, equality, celerity, gratuity, and impartiality.

Among its general provisions, this code sets forth the process of subpoenaing and notifying the parties to the proceedings, as well as the manner of holding hearings and the procedure for the recognition and homologation of foreign judgments, arbitration rulings and mediation acts issued abroad.

The code also provides for all matters concerning evidence, which is fundamental in any proceeding – considering its purpose is to convince the judge of the facts and circumstances that are alleged. Among the ways of presenting evidence addressed in the code are:

 - testimonial evidence – regulations are in development concerning its submission and analysis;

 - documentary evidence – the definition of which was recently reformed in 2023 to incorporate everything related to electronic or dematerialised documents;

 - expert evidence – everything related to the intervention of experts in specific matters qualified by the National Judicature Council and the manner in which their reports are submitted; and

 - judicial inspections – the purpose of which is that the judge verifies or examines places, things or documents in person.

However, the proceedings regulated by this code have different structures. In addition to ordinary proceedings, in which all the claims that do not have a special procedure are heard, there are:

 - tax proceedings;

 - summary proceedings;

 - voluntary proceedings;

 - executive proceedings; and

 - enforcement proceedings.

Integral Organic Criminal Code 

This code establishes the State's punitive power, typifies criminal offences and determines the procedure for the prosecution of individuals. Specifically, in terms of procedural matters, it concerns the jurisdiction and competence in criminal cases, evidence, general procedural rules, and the mechanisms for appeals and objections. It is important to highlight that, in order to strengthen the public policy to fight corruption and establish a solid judicial system, at the end of 2022 a public examination process resulted in the selection of the first 14 judges with jurisdiction to hear and punish 44 crimes related to corruption and organised crime. This means that means Ecuador now has a Specialised Judicial Unit for Corruption and Organised Crime Crime.

The Arbitration and Mediation Law 

ADR is recognised in the Constitution and regulated by the Arbitration and Mediation Law, in particular. Arbitration and mediation will be carried out in accordance with procedural rules established by the arbitration and mediation centres respectively.

This regulation mainly emphasises the autonomy and will of the parties in terms of their right to access ADR methods and agree on the rules that will apply to the process – something that has been the subject of multiple pronouncements by the Constitutional Court. The principle of confidentiality of the procedures is recognised, along with the option for the State to participate in disputes (including those concerning public procurement) and submit them to arbitration.

By submitting disputes to arbitration, an ordinary judge is restrained or prevented from hearing the details of the claim or lawsuit – although this does not preclude the ordinary judge from resolving the action for annulment of arbitral decisions. The nullity action against arbitral rulings is a judicial review mechanism against the ruling itself or certain events or stages in the proceedings. the causes to submit these actions are determined in the Arbitration and Mediation Law.

General Updates 

During the period between 2020 and 2023, the field of dispute resolution in Ecuador has undergone a notable transformation with regard to its procedures – largely driven by the COVID-19 pandemic. These changes have mainly concerned the way in which subpoenas, hearings, submission of pleadings, etc, are conducted, which has resulted in the conventional paper-based method being replaced by electronic means. This transition is aligned with the ongoing process of digital transformation and has made the substantiation of claims more efficient.

As a result of these developments, it has been possible to hold hearings through telematic means. This has facilitated the attendance of the parties and witnesses, even in situations where physical distance would otherwise present a significant challenge.

In addition, noticeable progress has been made in the issuance of subpoenas to legal entities, as the latest reforms to the General Organic Code of Procedure have made it possible to send summons slips to the email addresses registered on the website of the Superintendent of Companies, Securities and Insurance. However, the full implementation of the digital transformation still faces obstacles when it comes to the summonsing of natural persons. The absence of an electronic mailbox by which to receive subpoenas has maintained the need to issue subpoenas by means of physical slips.

It is important to highlight that the implementation of an electronic platform for the filing of pleadings and lawsuits has been another important step in the modernisation of the judicial system. This measure has played a role in decongesting judicial offices, while making it easier for customers to manage their legal procedures.

The integration of electronic media has been a successful response to the challenges caused by the pandemic. Its ongoing application will continue to improve both access to justice and the efficiency of dispute resolution in the Ecuador.