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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
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:
(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?
Awards rendered in Ecuador in an international arbitration are not considered domestic awards pursuant to Arts. 41 and 42 of the Arbitration and Mediation Law.
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)?
Arbitration and Mediation Law (Arts. 32, 41 and 42); Civil Proceedings Code (Arts. 302, 414, 438, 439 and 440); Organic Code of the Judicial Branch (Arts. 143 and 208(6)) and international treaties.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There are no specific regulations. The applicable time limit is that which applies to ordinary actions under the statute of limitations.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Ten (10) years from the moment the award becomes enforceable.
(Source (for both (a) and (b)): Civil Code, Arts. 2414 and 2415.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The New York Convention (Art. I(1)) applies to arbitral awards made in the territory of a State other than the State where recognition and enforcement of such awards are sought. This definition encompasses awards rendered in another State in international arbitration proceedings and in domestic proceedings. The Ecuadorian Arbitration and Mediation Law (AML) makes express reference to the enforcement of the first kind of awards, but is silent regarding the second kind. Pursuant to Art. 42 of the AML, awards rendered in international arbitration proceedings do not need any recognition and are enforceable in the same way as awards in Ecuadorian domestic arbitration proceedings, i.e., before a first instance judge (Art. 32 of the AML and Art. 302 of the Civil Proceedings Code). As the AML is silent regarding awards rendered in another State in domestic arbitration proceedings, arguably these should be treated as foreign judgments. Such awards must undergo a process of recognition before the Provincial Court in one sole instance. After recognition, an application for enforcement of the award is made to a first instance judge. (Arts. 143 and 208(6) of the Organic Code of the Judicial Branch).
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.)?
There are no specific provisions.
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.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
No appeal or recourse is permitted.
(b) How many levels of appeal or recourse are available against this decision?
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 is the last stage of enforcement proceedings. Prior to execution, liquidation is necessary to determine the amount to be realized on the assets. (Liquidation is a process pursuant to which the respondent's assets are sold in order to release funds to meet the award. The assets to be sold are chosen by the claimant and the sale is conducted by the judge.)
E. Evidence required
(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)?
Ecuadorian law does not specify whether the complete documents or only certain parts must be provided.
(c) Are originals or duly certified copies required?
It is sufficient to provide certified copies of the documents.
(Source: Civil Proceedings Code, Arts. 121 and 165.)
(d) How many originals or duly certified copies are required?
Only one original or certified copy is required, and as many ordinary copies as there are parties.
(Source: Civil Proceedings Code, Art. 1007.)
(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 a party. 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.
(Source: Regulations on arrangements for trials and legal proceedings, Art. 9.)
(a) Is it necessary to provide a translation of the documents supplied?
(Source: Civil Proceedings Code, Art. 264.)
(b) If yes, into what language?
(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. There are two options: (i) the translation is made by an official translator in the country where the award was issued, and legalized by the consul of Ecuador in that country or by Apostille, or (ii) the translation is made in Ecuador by an expert appointed by the judge in charge of recognition of the award.
(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
(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?
If, during recognition proceedings, a party provides evidence that the award is being challenged in the country in which it was issued, then if, under the law of that country, such challenge leads to provisional suspension of the award until the challenge is heard, the judge in Ecuador should refuse to recognize the award while that issue is still being determined.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
(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?
The documents submitted are part of the public register and it is not possible to keep them confidential.
(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 and no steps can be taken to maintain the confidentiality of the legal proceedings.
(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)?
Judgments at first and second instances are not published in the Official Gazette. Some final cassation decisions (chosen by the National Court of Justice) are published in the Judicial Gazette, together with the corresponding final decisions at first and second instance. No steps can be taken to remove the names of the parties or avoid publication.
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 are followed as for final 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 provided the subject matter of the award is arbitrable under Ecuadorian Law (e.g. awards relating to family matters cannot be enforced).
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 seems 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?
An arbitration award set aside by a competent authority in the country where it was issued cannot be recognized or enforced in Ecuador.
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.)?
Yes. 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: (a) the parties have their domiciles in different States at the date of execution of the arbitral agreement; (b) the place of performance of a substantial part of the obligations or the place with which the subject matter of the dispute is most closely related is located in a State other than the State in which at least one of the parties has its domicile; or (c) the subject matter of the dispute relates to an operation of international trade. Any arbitration which does not comply with any of the requirements mentioned above shall be deemed domestic in the State where it is seated.
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).
César Irwin Coronel Jones