Evolution of the Legal Sector in Ecuador 2008-2018

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DATE: 10-08-19

CORRALROSALES IN THE NEWS: 

Francisco Corrales

MEDIA: Idealex

To better understand the legislative evolution in this decade, it is necessary to take into account that the presidency of the Republic was exercised by a single character from 2007 to 2017: Rafael Correa, an unprecedented case in Ecuadorian history. There have been presidents who have exercised the presidency for a total of more than 10 years, but not continuously.

In 2008 a new Constitution, the twenty-second, was issued for which a Constituent Assembly was convoked. Its mission was to draft a political letter which to enter into effect required the favorable vote of the majority of citizens expressed in a referendum convoked for the effect. President Correa had an absolute majority in the Assembly and managed to have the 2008 Constitution built to suit his political project: The Ecuadorian version of the so-called 21st Century Socialism. The main ideologues of this movement who played the same role in the constitutions of Venezuela and Bolivia were two Spanish professors belonging to the extremist group “Podemos”.

The 2008 Constitution that currently governs the country, with 23 modifications introduced in three separate occasions, consists of 444 articles, 30 transitional provisions and a transition regime developed in 30 additional articles. The constitution has 52,831 words, compared to that of 1998 with only 29,162 words. It is a convoluted, contradictory, incoherent, and regulatory political letter which strengthens the presidential power to the extreme. In addition, it was shielded in such a way that its reform requires long procedures along with qualified majorities and for certain matters even the convocation of a new Constituent Assembly.

To consolidate the indefinite political power of the XXI Century Socialism sought in Ecuador during the period under review, large numbers of codes and laws were dictated; most of them penned by the presidency of the Republic. There is hardly any law whose initiative came from the Legislative Assembly itself. The assembly members of the political group led by President Correa were an absolute majority which allowed them, without the need for agreements or alliances, to approve as many laws as they considered necessary to suit their interests.

Among others, the following laws were issued: Organic Monetary and Financial Code, Commercial Code, Organic Code of Territorial Organization, Autonomy and Decentralization, Organic Code of Judicial Function, Administrative Organic Code, General Organic Code of Processes, Code of “Ingenios” (Organic Code of the Social Economy of Knowledge, Creativity and Innovation), Organic Law of the Legislative Function, Law of Jurisdictional Guarantees and Constitutional Control, Organic Law of the Council of Citizen Participation and Social Control, Organic Law of Higher Education, Organic Electoral Law and Political Organizations, Organic Law of Ombudsman, Organic Law of Land Transportation, Traffic and Road Safety, Organic Law of the National Public Procurement System; To this extravagant number of codes and laws, we must also add reforms of all kinds due to the fact that 11 reforms were issued in the period under review only with regard to tax laws.

Therefore, it is correct to affirm that between 2007 and 2017 Ecuador endured a legislative incontinence of new laws, reforms and counter reforms that have thwarted the institutional and legal structure of the Republic. The vast majority of members from this movement in the government have had the sole goal of strengthening the presidential power and facilitating the fulfillment of the political objectives of the group that held power, that is, its indefinite command of the Republic. This situation has become such a problem that several private and public sectors have suggested that the least traumatic way to end the current legal chaos would be to convoke a referendum in which the people would repeal the 2008 Constitution replacing it with the 1998’s. Therefore, the legislature would adapt the current secondary laws to the constitutional norms of 1998.

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EKOS – Personal data protection: legitimate means for handling data

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DATE: 16-08-19

CORRALROSALES IN THE NEWS:: 

-Rafael Serrano
-Michael Wollman

MEDIO: Ekos Magazine

With the forthcoming issuance of the Personal Data Protection Law, companies must adapt their procedures to collect and carry out the appropriate handling of the personal data of their consumers or customers.

The correct handling of personal data is one of the main tools for companies to adequately market their products; not only to protect the personal information of their customers, but also to benefit their businesses.

The main purpose of the draft Law is to regulate the exercise of the right to protection of personal data, self-determination information, and circulation of this type of data (Article 1).

The legitimacy principle (Article 9) establishes the conditions or situations in which the collection and processing 1 of personal data by companies is legitimate and lawful:

  1. Consent of the personal data owner to the sharing of his information for a specific purpose.

The consent must be free, specific, unequivocal, prior and informed. A company may share someone’s personal data when he authorizes or gives consent knowing the purpose of the use of his information.

  1. Legal obligation for the sharing of personal data.

In this case, the law orders the company to share the personal data of an individual.

Example: The Labor Code requires employers to have certain personal information of their workers such as address, marital status, number of children, and some other relevant information. In this case the will of the data owner is irrelevant since it is the law that orders the sharing of this information.

  1. Contractual relationship.

A company can use the data of an individual with whom they have a contractual relationship. The limitation to this use is related to the data necessary for compliance with contractual obligations and may not exceed the limits established in the contract.

Example: In a contract of sale of goods, the company cannot use the data of the individuals to send commercial promotions, except if there is a clause in the contract that expressly authorizes the sending of such promotions.

1 The Personal Data Protection Law project defines the handling as any operation performed on personal data; this includes collection, conservation, modification, transfer, among other actions.

  1. 4. Vital interests of the owner.

The sharing of data of a person may be carried out if through this process the vital interests of the owner are protected, such as the protection of fundamental rights.

Example: A company can share the personal data of a person if it helps to save the life of the individual, such as in a medical emergency.

  1. Order of a judicial authority or resolution of competent authority.

If through a ruling or a decision of the competent authority the delivery or processing of personal data is ordered, the company will be bound to do so without facing negative consequences.

The legitimacy of the sharing and use of personal data is not given only by the consent of his owner. Companies must analyze in each particular situation which of the above mentioned scenarios the handling of personal data applies, thus complying with the principle of legitimacy.

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LexLatin – CorralRosales promotes two partners and area leaders in Quito

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DATE: 11-07-19

CORRALROSALES IN THE NEWS:: 

Andrea Moya
Felipe Samaniego

MEDIA: LexLatin

The Ecuadorian company CorralRosales announced the appointment of Felipe Samaniego and Andrea Moya as new partners in regulatory and tax practices respectively. The firm now has a total of nine partners.

Samaniego is the leader of the regulatory group. This group is comprised of professionals and specialists in different fields such as veterinary, pharmacology, food and additive. Moya is in charge of the tax area which is made up of three professionals.

Both specialists told LexLatin about their promotions. Andrea Moya said that in this new challenge, she is focused on continue being a leading team in the analysis of complex operations including cross-border transactions, trading of international production units, and tax planning for companies wishing to operate in Ecuador.

At the same time, Samaniego stressed that he accepts the challenge of consolidating the firm as a benchmark for regulatory matters in the country. To achieve his goal, he assured that he counts with a regulatory team that combines industrial experience and in-depth knowledge to advise foreign mass consumption companies seeking to enter the Ecuadorian market and local manufacturers too about the schemes that best suit their needs and allow them to have control over their products as well.

About our new partners

Felipe Samaniego has more than three years of experience in the area of regulatory law, with emphasis on matters related to food law, advertising, consumer goods, pharmaceuticals, chemicals, biologicals, agricultural, cosmetics, hygiene, food and beverages. He also handles issues of foreign trade and quality standards.

Some of the companies assisted in the regulatory area are Roquit Benckiser, Pacari, Clorox, Ferrero, Nestle Ecuador, and Grupo Familia.

Before joining Corral Rosales in 2009, Felipe was a legal assistant at Ernst & Young. He also worked at Tobar & Bustamante in 2006. He graduated from University of the Americas (Mexico).

Andrea Moya has specialized in the tax area for more than a decade. She has extensive experience in consultancy matters and in the representation of clients in administrative and judicial processes leading the definition of strategies and generation of tax structures both local and international.

The client portfolio of the tax area Andrea leads includes Panamanian Aviation Company (Copa Airlines), Ferrero, Marriot International Hotels Inc., General Motors, Terpel-Comercial Ecuador Cia. Ltda., Nestle Ecuador SA, among others.

Andrea graduated as an attorney from the Pontificia Universidad Católica del Ecuador and holds a Master’s Degree in Tax Law from the same university. She also holds a Master’s Degree in International Tax Law from New York University (NYU).

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LeadersLeague – CorralRosales Strengthens its Tax and Regulatory Practices

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FECHA: 24-05-19

PROFESIONALES EN LA NOTICIA: 

Andrea Moya
Felipe Samaniego

MEDIO: Leaders League

Leaders League publishes on its website the appointment of Andrea Moya and Felipe Samaniego as new Partners of CorralRosales.

“CorralRosales law firm, is betting on the growth of the legal market in Ecuador and more generally LatAm, by promoting Andrea Moya and Felipe Samaniego to a partner level position, to lead the tax and regulatory areas respectively. This move takes the partner count to nine”, said in the news.

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LatinLawyer – Ecuador’s CorralRosales opens foreign trade practice with Gustavo García

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DATE: 18-10-18

CORRALROSALES IN THE NEWS: 

Gustavo García

MEDIA: Latin Lawyer

LatinLawyer publisehs that CorralRosales has hired the General Secretary of the Andean Tribunal of Justice (ATJ) Gustavo García to head its international trade practice, as a new trade agreement with the EU bears fruit. Gustavo García Brito, 35, joined the firm on 1 October as of counsel. He previously served at the ATJ for six years and brings experience in Andean Community law and integration. He also has knowledge of multilateral trade systems and the legal aspects of international economic relations through consulting for law firms in Bolivia and Brazil.

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LatinLawyer – Nestlé acquires Ecuador’s Terrafertil in landmark multijurisdictional deal

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DATE: 27-09-18

CORRALROSALES IN THE NEWS: 

Edmundo Ramos
-Xavier Rosales

MEDIA: LatinLawyer

White & Case LLP in New York and CorralRosales in Quito have helped Nestlé acquire a majority stake in Ecuadorean organic foods producer Terrafertil, in what is thought to be the largest M&A in Ecuador and the largest transaction in Latin America’s health foods industry in 2018.

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LatinLawyer – Colombian hygiene company makes third acquisition in five months

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DATE: 18-04-18

CORRALROSALES IN THE NEWS:: 

-Edmundo Ramos
-Francisco Rosales
-María Cecilia Romoleroux
-Xavier Rosales

MEDIO: Latin Lawyer

CorralRosales has helped Colombian hygiene company Grupo Familia acquire its Ecuadorian counterpart Industrial Papelera Ecuatoriana (Impaecsa).

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LatinLawyer – ExxonMobil divests Andean downstream assets

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DATE: 12-04-18

CORRALROSALES IN THE NEWS: 

-Santiago Palacios
-Xavier Rosales

MEDIA: LatinLawyer

Simpson Thacher & Barlett LLP in New York and Palo Alto; the Bogotá offices of Posse Herrera Ruiz; MBCR – Márquez, Barrera, Castañeda & Ramírez, Esguerra Asesores Jurídicos and Brigard Urrutia; Miranda & Amado Abogados in Lima; and CorralRosales in Quito have helped a subsidiary of Chilean petrol station owner COPEC acquire various downstream assets from ExxonMobil for US$715 million.

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