The Constitutional Court delivered judgment 018-18-SIN-CC on August, 1st, 2018 declaring that the amendments proposed by the National Assembly on December 3rd, 2015 were illegal. The only exception were the amendments related to articles 2 and 4, which modified articles 114 and 144 of the Constitution as those were reformed due to the outcome of the referéndum that took place on February 2018. The Constitutional Court observed that the principle of supremacy shall be respected and concluded that the National Assembly did not do it by voting on the amendments as a sole unit and not individually.
The Court ordered the National Assembly to adopt this decision within a year in order for the voting process of future constitutional amendments to be more rigid. Consistently, for future amendments proposala, each one of them shall be individually deliberated, voted and approved.
INTRODUCTION
According to the New York Convention, a signatory party’s domestic legislation should not impose more demanding requirements for the enforcement of international awards than those required for domestic awards. Consistently, the Ecuadorian Arbitration and Mediation Law does not make any differentiation between international awards and domestic awards. Nevertheless, it seems that Ecuadorian legislators decided to ignore those provisions when they were considering the approval of the Ecuadorian General Organic Code of Proceedings (the “GOCP”) that came into force in May 2015. The GOCP reformed the Civil Code of Procedure and included new provisions regarding the enforcement of international arbitral awards. For instance, a party seeking the enforcement of an international award in Ecuador shall first complete a homologation process1 before the Provincial Court in order to obtain its recognition. This process does not only entail a new layer of potential judicial intervention, but it also imposes an excessive burden on the party seeking the enforcement of the award. This article focuses on the homologation process and its impact on the enforcement of foreign arbitral awards.
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By ZVS Tobar in NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins
The Council of the Judiciary implemented electronic letters rogatory in order to promote the speed of judicial proceedings. Before the implementation of this new system, the parties had to obtain the letters rogatory and file them into the court of the other jurisdiction in charge of the judicial assistance. This entailed an additional expense for the party due to travel costs. Moreover, the letters rogatory changed its original identification number, which resulted in the lost of the documents.
Now the judge sends the letters rogatory through e-mail to the judge from the other jurisdiction within a few seconds. Once complaint, the judge sends it back through e-mail.
By Vela Óscar in NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins
The Constitution of the Republic of Ecuador passed in its current form in 2008, in addition to the three existing functions of the State (Executive, Legislative and Judicial) added two new ones in the State:
1) Transparency and Social Control Function, and;
2) Electoral Function.
The Transparency and Social Control function should promote the control of entities and organizations of the public sector, and individuals and companies of the private sector that provide services or develop activities of public interest, and is made up by the following institutions: Council for Citizen Participation and Social Control, the Ombudsman’s Office, the Office of the Comptroller General of the State and the Superintendencies. (Constitution of the Republic of Ecuador, Arts. 204 and 205).
Among the attributions of the CPCCS, Article 208, number 11 of the Constitution of the Republic of Ecuador sets the appointment of the following authorities:
In addition, the 2008 Constitution, by means of a transitory disposition, determined that the CPCCS shall organize the contests for the appointment of the judges that formed up the Constitutional Court.
The President of the Republic called a popular and constitutional Referendum, which was held on February 4, 2018. The third question of the consultation, (approved by a large majority of votes), aimed at amending the Constitution in order to restructure the Council of Citizen Participation and Social Control (CPCCS), to terminate the constitutional period of the at-that-time-being members and that the Transitory Council would evaluate the authorities that by law had been appointed by the terminated CPCCS, and included the capacity to dismiss them.
The reforms include the process to elect the CPCCS representatives:
In compliance with the results of the third question of the popular Referendum, the National Assembly appointed the members of the Transitory Council of Citizen Participation and Social Control, hereinafter “CPCCS-T”, who are invested with their legal powers and also with the extraordinary ones granted by the Referendum (question and annex 3), they began the process of evaluating the authorities designated by the dismissed CPCCS.
Annex 3 establishes that the “CPCCS-T” will assume all the faculties, duties and attributions that the Constitution and the laws grant to the CPCCS, and will also evaluate the performance of the authorities designated by the ceased Council of Citizen Participation and Social Control, which are the authorities that article 208, number 11 of the Constitution order to appoint.
By ZVS Tobar in NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins
On May 29th, 2018, the Constitutional Court with 5 votes in favor, one absence and 3 votes against ruled on the Satya case and ordered the registration of Satya under the surname of her same sex parents. The Court found that the negative of registration issued by the Civil Register violated the child´s constitutional right to identity, equality, non-discrimination and the protection of the diverse types of families.
As a result, the Court annulled previous rulings on the case and ordered the investigation and potential sanctions to the responsible administrative and judicial authorities. In addition, the Court ordered the Civil Register to offer public apologies to Satya and her family and to train the institution´s personnel in that regard.
By Vela Óscar in NEGOTIATION, CONFLICT RESOLUTION AND DISPUTES , News and Bulletins
