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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Ecuador.
2. Date of entry into force of the New York Convention
3 April 1962.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Yes. Awards rendered in Ecuador in an international arbitration are not considered domestic awards pursuant to Art. 42 of the Arbitration and Mediation Law. Such awards are considered to be an award made under the New York Convention, which applies to their recognition and enforcement.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
(i) Arbitration and Mediation Law (Arts. 32, 41 and 42);
(ii) Organic General Code of Process (Arts. 362, 363 and 364);
(iii) Organic Code of the Judicial Branch (Arts. 143 and 208, #6); and
(iv) international treaties.
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
For recognition: ten years from the moment the award becomes res judicata in accordance with the law of the place of the arbitration.
For enforcement: ten years from the moment the award is recognized in Ecuador.
(Source: Arts. 2414 and 2415 of the Civil Code.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
For recognition: a specialized chamber of the provincial court where the respondent has his/her domicile.
(Source: Organic Code of the Judicial Branch, Arts. 143 and 208 #6.)
For enforcement: following recognition, an application for enforcement of the award must be made to a specialized first instance judge of the domicile of the respondent. If the respondent does not have his/her domicile in Ecuador, a first instance judge of the place where the assets are located or where the award should produce effects shall have jurisdiction.
(Source: Arbitration and Mediation Law, Arts. 32 and 42; Organic General Code of Process, Arts. 362, 363 and 364.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
See Q.7 above.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The recognition and the enforcement of foreign awards are proceedings inter partes.
(Source: Constitution of the Republic of Ecuador, Art. 76, #7-c).
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
No appeal is permitted against the recognition decision of the Provincial Court of Justice or the enforcement decision of the first instance court.
However, it is possible to seek clarification or amplification of the decisions. It is also possible to challenge the decisions before the Constitutional Court by means of a constitutional action called ‘extraordinary protection action’ based exclusively on violations of constitutional rights.
(Source: Organic Code of the Judicial Branch, Art. 143; Constitution of the Republic of Ecuador, Art. 94; Organic Law of Jurisdictional Guarantees and Constitutional Control, Chap. VIII.)
(b) How many levels of appeal or recourse are available against this decision?
N/A.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Execution against assets is the last stage of the enforcement proceedings.
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
If the award is to be recognized or enforced pursuant to an international treaty, the evidence to be provided for this purpose shall be as set forth in the relevant treaty. Therefore, where a party is seeking to enforce an award under the New York Convention, the party must supply the duly authenticated original award or a duly certified copy and the original arbitration agreement or a duly certified copy.
(Source: New York Convention, Art. IV.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to provide the entire document.
(Source: Art. 195.1 of the Organic General Code of Process.)
(c) Are originals or duly certified copies required?
It is sufficient to provide certified copies of the documents.
(Source: Organic General Code of Process, Art. 194; Arbitration and Mediation Law, Art. 32.)
(d) How many originals or duly certified copies are required?
Only one original or certified copy is required.
(Source: Arbitration and Mediation Law, Art. 32.)
(e) Does the authority or court keep the originals that are filed?
The original documents or certified copies submitted to the court are kept in the court file, except when their removal is requested by the party that provided the documents. If a party asks the court to return the originals or certified copies, that party must provide the court with ordinary copies as a replacement. These ordinary copies shall be kept in the file duly certified by the court’s secretary.
(Source: Organic General Code of Process, Arts. 114, 118; Regulations on management of trials and legal proceedings, Art. 9.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: Organic General Code of Process, Art. 200.)
(b) If yes, into what language?
Spanish.
(Source: of the Organic Art. 200 General Code of Process, Art. 200.)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The translation must be certified, i.e. the document is either (i) translated by an official translator in the country where the award was issued and legalized by the consul of Ecuador in that country, or apostilled; or (ii) translated in Ecuador by any translator and his/her signature is recognized before a notary public.
(Source: Organic General Code of Process, Art. 201; Modernization of State Law, Art. 24).
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
A translation of the complete document is required.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
There is no legal provision addressing this situation.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
None.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
As a general rule, the documents submitted are part of the public record; however, the court can be asked to keep the documents confidential if it is necessary to protect the intimacy, honor, good name, safety or personal and sensitive data of the petitioner (‘sensitive data’ is not defined).
(Source: Constitution of the Republic of Ecuador, Arts. 66.19, 92 and 168.5; Organic General Code of Process, Art. 8; Organic Code of the Judicial Branch, Art. 13.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Hearings are not confidential. However, as noted above, the court can be asked to keep the documents confidential if it is necessary to protect the intimacy, honor, good name, safety or personal and sensitive data of the petitioner (‘sensitive data’ is not defined).
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Judgements on recognition and enforcement are not published.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
There are no specific provisions. The same regulations applicable to final awards apply to interim or partial awards.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
It is possible to obtain recognition and enforcement of non-monetary relief in foreign arbitral awards.
(Source: Organic General Code of Process, Arts. 368, 369.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
There are no specific provisions in Ecuadorian law. However, it is likely that the Ecuadorian courts would agree to enforce or recognize only part of an award if requested by a party.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
Insofar as the legislation of the country where the award was issued provides that the award loses its res judicata effect as a consequence of being set aside, then such award will not be recognized by an Ecuadorian judge.
(Source: Arbitration and Mediation Act, Arts. 32, 42; Organic General Code of Process, Art. 363.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
See Q.7 above. The enforcement process is different depending on whether, under Ecuadorian law, the award made in the foreign State would be categorized as ‘international’ or ‘domestic’. Pursuant to Art. 41 of the AML, arbitration is deemed to be international subject to the parties’ agreement and provided one of the following requirements has been met:
An international award made in another State can be enforced in the same way as a domestic Ecuadorian award. However, a domestic award made in another State may be treated as a foreign judgment (and subject to the enforcement processes applying to foreign judgments).
Country Rapporteurs: César Irwin Coronel Jones, Jorge Sicouret Lynch