Ecuador

Part I: what can be enforced?

1. What counts as an arbitral “award” that can be enforced?

Ecuadorian law provides for the enforcement of local and foreign arbitral awards in general. The Regulation to the Arbitration Law, issued in 2021, clarifies that awards that were set aside in the seat of arbitration cannot be enforced.

2. Formal requirements that an award needs to conform with to be enforceable

The only requirement is a certified copy of the award.

3. Orders on interim measures: enforceability

Ecuadorian law does not limit the enforceability to final awards; however, we have not found any case law regarding the enforcement of interim measures or orders.

a. Domestic awards

Depending on the arbitration clause, interim measures or orders may be enforced directly by the arbitral tribunal, supported by public force, if the parties have granted these powers to the arbitrators. Otherwise, they will need to request court assistance.

b. International commercial arbitration awards

Ecuadorian law has not regulated the enforcement of interim measures or orders in international arbitration. Therefore, the same rules will apply depending on the arbitration clause and lex arbitri chosen by the parties.

4. Emergency awards: enforceability

a. Domestic awards

Emergency arbitration was recently incorporated into domestic arbitration, through amendments in the local arbitration rules of the most prominent arbitration centres. Usually, parties comply with emergency awards and there has not been any case law where a party needed to enforce before local courts.

b. International commercial arbitration awards

Ecuadorian law does not limit the enforcement of an emergency award, however, there has not been any case law where a party needed to enforce before local courts an international emergency award.

Part II: resisting enforcement

Any award that was not set aside in the seat of the arbitration.

5 a. How are awards set aside?

The party seeking annulment must file a request to set aside the award within 10 business days. The president of the Appellate Court has exclusive jurisdiction on these matters; the other party is notified with the request and given 10 business days to file a response. The court sets a date for the hearing. The decision is not subject to appeal.

b. Can enforcement be resisted if the respondent has not formally applied to set aside the award?

Yes, arguing other grounds to resist enforcement.

c. Can non-parties seek annulment?

No, only parties may seek annulment.

d. Grounds to seek setting aside

Under Ecuadorian law, an award may be set aside based on five grounds: (i) lack of service of notice of proceedings; (ii) due process: breach of the right to defence; (iii) evidence requested and admitted was not admitted during the arbitral proceedings; (iv) extra or ultra petita; and (v) breach in the appointing of the tribunal proceedings.

e. Timelines to seek setting aside

The party seeking annulment must file a request to set aside the award within 10 business days. The president of the Appellate Court has exclusive jurisdiction on these matters; the other party is notified with the request and given 10 business days to file a response. The court sets a date for the hearing. The decision is not subject to appeal. This process may take between six months and one year.

f. Grounds to resist enforcement

The only grounds for resisting are that the defendant demonstrates that they have complied with the award, or the award was suspended or set aside in the seat.

g. Which court to go to for setting aside?

The court of the seat of arbitration has jurisdiction to set aside awards.

h. Formal requirements before court can grant setting aside

• a certified copy of the award and record of the case
• a certification that the award has become final

i. Do courts grant stay on enforcement as an interim measure?

Interim measures under Ecuadorian law are divided between commercial or civil cases and constitutional cases. In the latter, a court may grant stay on enforcement as an interim measure if the parties are discussing the violation of a constitutional right. Otherwise, Ecuadorian civil procedure law does not provide a stay on enforcement as an interim measure.

j. What is the appellate mechanism against the decision of the court of first instance?

Both annulment and enforcement proceedings are not subject to appeal. The decision of the president of the Appellate Court in the former and the decision of the trial judge in the latter are final, and only subject to constitutional actions if constitutional rights were violated.

Part III: enforcing foreign awards

6. New York Convention applicability

Ecuador is a signatory of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention), however, the enforcement procedure under Ecuadorian Law is more expeditious and favourable than the one provided under the New York Convention.

7. Timelines for enforcement

Enforcement proceedings initiate with a request to enforce the award, together with a certified copy of the award, duly translated if it is not in Spanish. The trial judge admits the request, appointing an expert to liquidate interests and costs. The expert has 8–10 business days to deliver the report. The party has five days to comment on the report, and once it is final, the judge issues a payment order (mandamiento de ejecución). The defendant must be served with this order (this process takes two to four months). Once served, the defendant has five business days to pay or resist enforcement.

8. Which court to go to? Relation with location of assets?

The enforcing court is the court where the defendant has a domicile.

9. Can non-parties resist enforcement?

No, only the defendant (the party) may resist enforcement; however, if any asset that belongs to a third party was seized during the enforcement, this party may intervene through a third-party proceeding called tercería excluyente de dominio.

10. Compelling disclosure of local assets? How to identify assets available for enforcement?

Under Ecuadorian law, there is no compelling of disclosure. However, the judge has the power to require all public and private institutions’ information about the assets of the defendant.

11. Are third-party funded awards enforceable?

Third-party funding is not regulated under Ecuadorian law. However, under Ecuadorian law the assignee of a claim can only collect the amount they paid for that claim. Therefore, it is important to draft the funding agreement so that this provision is not applicable.

12. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?

Ecuadorian law does not specifically provide for interim relief during an enforcement proceeding. A party may request to freeze real estate assets, accounts, or seize vehicles. If granted, all those reliefs are ex parte.

13. Formal requirements for enforcement application: what documents need to be filed in court?

As mentioned, a certified and apostilled copy of the award, translated if not in Spanish.

14. Enforcing awards that have been annulled/set aside at other courts. Enforcing when an annulment application is pending at a foreign court

One of the grounds to resist enforcement is that the award was set aside, or its annulment is pending.

15. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?

The party seeking enforcement must wait until the other party is served and the five days given to comply have expired. Then the party seeking enforcement may provide the judge with information about the assets of the defendant and require seizing those assets or request the court to order public and private institutions to provide information about the defendant’s assets. Once the assets are identified, the court will order the seizure of those assets. Depending on the type of asset, some formal registration may be required. A custodian is appointed, and those assets are sold in a public auction.

Remedies depend on the timing of disposition of the assets. Usually, the claimant has a separate civil or criminal action to recover them.

16. What is the procedure for repatriation of sums awarded after obtaining an order for enforcement?

The court will request the party to give a bank account to transfer the sums awarded; this party will bear all the cost of the transaction.

17. Do courts grant orders for security for costs?

No, usually the party seeking enforcement must include all the costs in the initial petition, so that the expert includes them in the report, but there is no security that the party will recover those costs.

18. Exchange control regulations: do they affect payments to foreign award holders?

No, however, the repatriation of sums of money may be subject to taxes.

19. Enforcing awards from non-New York convention places

Ecuadorian law does not distinguish between awards from New York or non-New York Convention places.

20. Enforcing against sovereigns

Several assets that belong to the state or its entities are subject to immunities and therefore enforcement against those assets is not allowed. However, if the state or its entities do not comply with a court order to pay, there are several constitutional or legal mechanisms to make the public servant responsible.

21. Appellate mechanism available?

The enforcement decisions are not subject to appeal.

Part IV: enforcing domestic awards

22. Timelines for enforcement

This is the same procedure as an international award. Enforcement proceedings initiate with a request to enforce the award, together with a certified copy of the award, duly translated if it is not in Spanish. The trial judge admits the request, appointing an expert to liquidate interests and costs. The expert has 8–10 business days to deliver the report. The party has five days to comment on the report, and once it is final, the judge issues a payment order (mandamiento de ejecución). The defendant must be served with this order (this process takes two to four months). Once served, the defendant has five business days to pay or resist enforcement.

23. Compelling disclosure of local assets? How to identify assets available for enforcement?

Under Ecuadorian law, there is no compelling of disclosure. However, the judge has the power to require all public and private institutions’ information about the assets of the defendant.

24. Are third-party funded awards enforceable?

Third-party funding is not regulated under Ecuadorian law. However, under Ecuadorian law the assignee of a claim can only collect the amount they paid for that claim.

25. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?

Ecuadorian law does not specifically provide for interim relief during an enforcement proceeding. A party may request to freeze real estate assets, accounts, or seize vehicles. If granted, all those reliefs are ex parte.

26. Formal requirements for enforcement application: what documents need to be filed in court?

A certified copy of the award.

27. Filing for enforcement when application for annulment is pending

In domestic arbitration the annulment process does not prevent the enforcement of the award unless the party seeking annulment has posted a bond.

28. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?

The party seeking enforcement must wait until the other party is served and the five days given to comply have expired. Then the party seeking enforcement may provide the judge with information about the assets of the defendant and require seizing those assets or request the court to order public and private institutions to provide information about the defendant’s assets. Once the assets are identified, the court will order the seizure of those assets. Depending on the type of asset, some formal registration may be required. A custodian is appointed, and those assets are sold in a public auction.

Remedies depend on the timing of disposition of the assets. Usually, the claimant has a separate civil or criminal action to recover them.

29. Do courts grant orders for security for costs?

No, usually the party seeking enforcement must include all the costs in the initial petition, so that the expert includes them in the report, but there is no security that the party will recover those costs.

30. Appellate mechanism available?

The enforcement decisions are not subject to appeal.