During this past month, Ecuador’s ratification of the ICSID Convention and its direct influence on the attraction of foreign investment has been the subject of many comments.

Why is it key to attracting foreign investment? Dispute resolution under the ICSID Convention has many advantages, and particularly regarding arbitration, there are 3 main characteristics that make it so attractive to investors: (i) it is an institution specialized in international investments; (ii) it provides for the automatic recognition of awards; and (iii) it has its own procedure for annulment of awards. Below an analysis of these characteristics:

1. Specialized institution in international investments:

Having an arbitration administered by ICSID gives the investor the security of having a global and independent institution specifically dedicated to the settlement of international investment disputes. It is often difficult for a foreign investor to invest in a country if, in the event a dispute arises, it would be resolved by the country’s own courts. This generates a disadvantage for the investor and a feeling of lack of protection, especially considering that local courts often do not have the necessary experience in this field.

In an arbitration administered by ICSID, an impartial arbitral tribunal, which is expert in the subject matter, and has an in-depth knowledge of international investment disputes- which are often the cause of disputes- is constituted.

• Automatic recognition of awards:

The Contracting States – currently numbering 156 (including Ecuador) – are compelled to automatically recognize the award rendered under the ICSID Convention, as if it were a decision issued by the courts of that country, i.e., without the need to carry out the formal recognition procedure known as exequatur. This facilitates, simplifies, and significantly shortens the time in which the award is enforced, which means less time and costs for both the investor and the State.

• Procedure for annulment of awards:

As a general rule in international arbitration, an action for annulment of an award is brought before the ordinary courts of the country of the seat of arbitration. On the contrary, in the case of an arbitration administered by ICSID, such action is brought before the Center itself, in such a way that that no local courts of any State are involved, but an ad hoc commission composed of 3 individuals selected from the list of arbitrators of the Center (other than the members of the tribunal that rendered the award, and of different nationalities from any of the members of such tribunal and the parties) is appointed.

In conclusion, the protection derived from the arbitration procedure under the ICSID Convention enhances the foreign investor’s environment, which, undoubtedly, added to other measures adopted by the government, could turn Ecuador into a sort of investment hub in Latin America.

Sofía Rosales
Asocciate at CorralRosales
srosales@corralrosales.com

The Organic Administrative Code (“COA”) provides that, against the decisions issued by the public administration, there are two kinds of appeals: ordinary appeal and extraordinary appeal for review. The first seeks to have the authority re-analyze the merits of the case with a view on modifying its decision. The extraordinary appeal for review, on the other hand, is possible only when any of the specific grounds provided for in the COA are met – it does not constitute a third instance – hence its extraordinary nature. In recent years, a common practice has been to file an extraordinary appeal for review against final decisions denying or granting the registration of a trademark, against which the ordinary appeal has already been lodged -or it was not filed in due course- in order for the National Service for Intellectual Rights (“SENADI”) to change its criteria regarding the risk of confusion or association between the conflicting marks. Although the SENADI prima facie gives way to this type of procedure, it has stated that “The extraordinary appeal for review constitutes a legal remedy aimed at correcting an error in the formation of the administrative will, or any illegality in the issuance of the decision, with the interested party having the ordinary remedies to disagree with the criteria of the judge, in this case, with the comparative analysis of the confronted marks.[1]”

In this regard, Article 232 of the COA provides that “The interested individual may file an extraordinary appeal for review of the final administrative act when any of the following circumstances are verified:

1. That when issuing them, an obvious and manifest factual error has been incurred in, which affects the merits of the case, provided that the factual error results from the documents incorporated into the file.

2. That when issuing them, an obvious and manifest error of law has been incurred in, which affects the merits of the case. (…) The extraordinary appeal for review shall be filed, in the case of cause 1, within a period of one year following the date of notification of the contested decision (…)”.

It derives from the aforementioned provision that, unlike the ordinary appeal, the extraordinary appeal for review is not intended to review the legal arguments relied on by the authority in its decision but is aimed at reviewing and remedying, if necessary, defects in the processing of the administrative proceeding.

Unfortunately, nowadays, many users have chosen to file extraordinary appeals for review when what they are really requesting is to review the existence or not of the risk of confusion between two trademarks. And this is usually done as a way of demonstrating dissatisfaction with the decision issued through second instance decisions. An example of this can be found in case No. SENADI-2016-92900, in which SENADI admitted to process an extraordinary appeal for review against a decision denying an appeal in which the opposition filed was accepted, and the registration of a trademark was rejected. Within the aforementioned extraordinary appeal for review, the arguments used to request the revocation of the decision were:

• Comparison between the confronted trademarks and the supposed absence of risk of confusion.
• Absence of spelling and phonetic similarities between the conflicting marks.
• Lack of competitive connection between the protected goods.

It is evident that the grounds for the aforementioned extraordinary appeal for review are not related to those provided for in Article 232 of the COA and what the applicant is seeking is to review again a decision that has already exhausted all administrative instances.

We will have to wait for the final decision of SENADI to have a clearer vision of its criteria in this matter. However, it is to be expected that the authority will reiterate the aforementioned criterion, rejecting the extraordinary appeal for review at the time of issuing the final decision (although it should have done it at the admissibility stage), thus putting an end to this practice. If so, with this precedent, SENADI should not admit to process these kinds of appeals in the future, since it is extremely important that the extraordinary nature of the appeal for review is respected in order to safeguard legal certainty and avoid its use as a kind of third instance by the interested parties.

[1] Decision OCDI-2021-230 from March 30, 2021. Proceeding 15-1516-RV-2S-RR-2018.

Katherine González H.
Asocciate at CorralRosales
katherine@corralrosales.com

The concept of guarantee of rights has undergone fundamental transformations in the last century, which have contributed to the development of the protection and safeguarding of rights in the Constitutions. To all this, the abandonment of “the romantic pretension, derived from the French Revolution, whereby it was sufficient to enshrine human rights in the political constitution, for them to be respected by authorities and citizens” also contributed to this regard (Jimenez, 2000, pg.549).

The current constitutional text, in force since 2008, broadens and strengthens the complex and concept of guarantees and rights, increasing the instruments of defense and developing the content of the guarantees already existing in the previous Constitution (Storini, 2010, pg. 287).

In order to understand the right to effective judicial protection, it is important to highlight the purpose of legal proceedings.

The progress of society compels to restrict the private defense of rights in case of conflict, to the extent of reaching the current conception of jurisdiction, as the exclusive power of the State, to intervene in any conflict that actually or eventually disturbs social peace. (Becerra, 1977, pg. 22).

In this context, each citizen – paraphrasing Rousseau – surrendered part of its freedom to the State, so that the latter exclusively provides the tools to enforce rights through the judiciary branch, which is shielded with autonomy in the application of the Constitution and the law. Therefore, “the final purpose of procedural law is the regulation of the process, currently carried out by the jurisdictional organ exclusively”. (Becerra, 1977, pg. 23).

The State “in the legal field, not only complies with the creation and establishment of legal norms, but legal protection implies integrating the regulatory role with another, complementary, second-degree role. To the task of dictating norms this other role is added with the objective of conserving the legal order when it is unknown and the individual claims protection, which is the jurisdictional function”. (Véscovi, 1984, pg.7)

This leads us to conclude that procedural law “regulates this complex of acts in order to obtain jurisdictional protection” (Becerra, 1977, pg. 23).

The right to effective judicial protection is a complex right that “acts as an umbrella that reinforces the protection of other guarantees of a procedural nature, in case they do not have constitutional coverage”. (Aguirre, 2010, pg.12). Therefore, it constitutes a paramount cornerstone in the conception and development of a process, which is complex and is related to several elements that compose it.

For several decades, several international instruments[1] have established effective judicial protection as a right of utmost importance; however, our legal system remained silent until the enactment of the 1998 Constitution.

Currently, the Constitutional Court (hereinafter, the “Court”) has established that effective judicial protection constitutes the right of every individual to resort to the courts to obtain a well-founded judgment[2], which also involves the duty of the judge to adapt the proceedings to the specific case to be resolved, as follows:

“(…) specifies that the right to effective judicial protection does not exclusively entail the right of citizens to have access to the courts, but also involves the duty of the jurisdictional authorities to adapt their actions to the nature of the case brought before them in accordance with the provisions of the legal system”. (Constitutional Court of Ecuador, Judgment 133-17-SEP-CC, Case 0288-12-EP)[3]

The Court established three aspects in the content of this right: (i) access to justice, (ii) development of the proceedings in compliance with the Constitution and the law, in a reasonable time, and (iii) enforcement of the judgement[4].

Additionally, the Court established important cornerstones to distinguish effective judicial protection as an autonomous right in its content and nature, and determined that the right to judicial, impartial, and expeditious protection consists of the right to resort to the jurisdictional bodies in order to obtain a resolution regarding any legal conflict. Such resolution shall be based on law and must have been dictated after the process has been substantiated, observing and respecting the procedural guarantees established in the Constitution. (Constitutional Court of Ecuador, Ruling 254-18-SEP-C, Case 0952-EP) [5]

The foregoing is a clear definition of what is meant by effective protection, which can be summarized as the right of every individual to access a jurisdictional body, so that it may hear his or her claim through a proceeding in which the judge and the parties respect the basic guarantees, as well as the right to obtain decisions by the courts which are in accordance with the Constitution and the law and enforced.

Subsequently, the Court established the three instances of effective judicial protection, as follows:

1. Access to justice.- (…) implies that the State as a whole, and more specifically, the justice administrative bodies in the country, allow people to access the justice system with their petitions, without establishing overbearing obstacles that make it impossible for them to do so (…) in order to obtain from the administration of justice the recognition of their rights before the State and before individuals (…)
   
2. The development of the process in strict observance of the principle of due diligence – refers to the prompt and diligent performance by the jurisdictional authorities; that is, within a reasonable time and processing the case in accordance with the constitutional and legal regulations, in order to effectively protect the rights and interests of the parties (…)
   
3. Enforcement of the decision. (Constitutional Court of Ecuador, Judgment 254-18-SEP-C, Case 0952-EP)

It was positive to introduce the principles of responsibility enshrined in Article 11 of the Constitution, Article 15 of the Organic Code of the Judicial Function and the principle of due diligence contained in Article 172 of the Constitution; due diligence implies the fulfillment of the duty of care in the substantiation of the proceedings, observing the constitutional and legal provisions provided for resolution of disputes in the law brought to the attention of the courts. The latter further broadened the spectrum of the protection of the right to effective protection, including the implications and connotations that its non-observance would bring to the judges themselves and to the State.

It has been discussed whether or not arbitrators should ensure the right to effective judicial protection, since according to some criteria, this would be reserved only for judges and ordinary courts. If we call the right “effective judicial protection”, does this mean that arbitrators must protect this right? The obvious answer is yes, and if we want to call it effective arbitral protection, as a type, there is no difficulty. However, for the avoidance of doubt or contrary criteria, it is appropriate to refer to the right to the effective protection of justice (Martín Diz, 2014) [6] as the evolution of effective judicial protection, since it encompasses the rest of the mechanisms, including extra procedural or extrajudicial mechanisms recognized in legal systems. And, in Ecuador, arbitration is constitutionally recognized as a mean of dispute resolution.

In conclusion, effective protection has had an important and very positive development since the 2008 Constitution came into force, as the Court has worked to clarify and expand its elements. However, the system and understanding of complex law is not as expected, since there are important gaps to be solved, such as preparing judges, training them to issue better judgments and at the same time freeing them from “models”, “formulas”, “formats”, “evaluations by quantity” that prevent a true legal development and make it impossible to effectively apply the effective protection of justice.

References

Aguirre, V. (2010). El derecho a la tutela judicial efectiva: una aproximación a su aplicación a los tribunales ecuatorianos. Foro. Revista de Derecho No 14, 5-43.

Becerra , J. (1977). Introducción al Estudio del Derecho Procesal Civil. México: Cárdenas Editor y Distribuidor.

Jiménez, E. (2000). Derecho Constitucional Argentino, Tomo II, Sociedad Anónima editora, comercial, industrial y financiera. Ediar.

Martín Diz, F. (2014). Del derecho a la tutela judicial efectiva hacia el derecho a una tutela efectiva de la justicia. Revista Europea de Derechos Fundamentales, 161-176.

Narváez Aguirre, L. (abril de 2014). Tesis de grado: Facultades de los árbitros de suspender los efectos de los actos. Quito.

Storini, C. (2010). Las Garantías Constitucionales de los Derechos Fundamentales en la Constitución Ecuatoriana de 2008. Quito: Corporación Editora Nacional.

Véscovi, E. (1984). Teoría General del Proceso. Bogotá: TEMIS .

[1] The International Declaration of Human Rights (art. 10), the International Covenant on Civil and Political Rights (art. 14), the American Convention on Human Rights (art. 8), the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

[2] Constitutional Court of Ecuador, Judgment 364-16- SEP-CC, Case 1470-14-EP

[3] Constitutional Court Ecuador, Judgment 133-17-SEP-CC, Case 0288-12-EP, 10/05/17.

[4] The Plenary of the Body in judgment No. 050-15-SEP-CC issued in case No. 1887-12-EP, the existence of three aspects in the essential content of the right to legal protection, which cannot be overlooked, as follows ‘(…) the first related to access to justice; the second with the development of the proceedings in strict compliance with the Constitution and the law and in a reasonable time, and the third in relation to the enforcement of the decision. (Constitutional Court of Ecuador, Judgment 133-17-SEP-CC, Case 0288-12-EP

[5] Constitutional Court of Ecuador, Judgment 254-18-SEP-C, Case 0952-EP, 11/07/18, p 10

[6] Fernando Martín Diz, “DEL DERECHO A LA TUTELA JUDICIAL EFECTIVA HACIA EL DERECHO A UNA TUTELA EFECTIVA DE LA JUSTICIA”.

Ramón Paz y Miño
Asocciate at CorralRosales
rpazymino@corralrosales.com