CODE OF CIVIL PROCEDURE IN ECUADOR

This article will provide guidance on the Code of Civil Procedure in Ecuador. The civil law system, upon which Ecuador's legal system is founded, is predicated on the idea that laws are final and indisputable rather than on the idea of precedent. The Constitution of 2008 governs Ecuador now, and it was ratified when the people of Ecuador freely voted to reorganize the country's legal, political, and social institutions.

In accordance with the Constitution and other international documents that Ecuador has ratified, all citizens and residents have the same protection of human rights. When a public authority (other than a national court) wrongfully applies a public policy or when non-state actors act under its acquisition, the Protection Remedy (previously known as amparo) aims to protect such rights.

BACKGROUND

The National Assembly is the highest legislative body and comprises one chamber of representatives. It is based in Quito and currently has a hundred and thirty-seven members, each elected to serve a four-year term. The National Assembly can hold special sessions in any city within the country's boundaries.

The two main categories of law are [A.] ordinary laws, referring to all laws that do not need a qualified majority by the National Assembly, and [B.] organic laws referring to rules that control the structure and operations of the primary branches of government, the enjoyment of basic human rights and freedoms, and the electoral system

When the National Assembly passes organic legislation, it takes precedence over any other laws already in effect and must be approved by a simple majority vote. Treaties and other international agreements are signed or ratified by Ecuador's president. However, the National Council must approve matters including national delimitation, commercial agreements, and constitutionally guaranteed rights and assurances. The same process would be followed in the event of their denunciation.

THE JUDICIARY IN ECUADOR

Judicial power is reserved exclusively for the courts and other judicial agencies. There is just one arm of government responsible for deciding legal cases in Ecuador. A judge's role is to ensure that justice is done in accordance with the law, the Constitution, and international human rights treaties.

The judicial branch oversees the fair and impartial administration of justice. However, arbitration and mediation are permitted as additional methods for resolving conflicts. In addition, the Constitution upholds the freedom of indigenous peoples to maintain their legal system in line with their ancestral traditions, so long as such a system does not violate the Constitution or international human rights conventions. The state is responsible for ensuring that indigenous judgments are carried out. However, several rulings handed down by the Constitutional Court have placed restrictions on the scope to which this kind of justice may be applied. If a decision made by an indigenous authority violates or threatens the enjoyment of a basic right, such as the right to life or the right to one's own body, the Court of Criminal Appeals of Ecuador may examine the decision.

The Constitution, international agreements, and the law are the only things the jurisdictional bodies must answer. The Provincial Courts have jurisdiction over the territory of each province; tribunals and judges appointed by law, whose independence is guaranteed by the state and can only be subject to the Constitution and the law. Ecuador also institutes the Justice of the Peace, which presides over disputes between private citizens and government officials.

The National Court of Justice (located in Quito) is the highest in Ecuador, has jurisdiction over the entire territory of the State, and acts as a Court of Cassation through specialized chambers in accordance with the. The National Council of the Judicature also chooses judges and other judicial branch employees. Also, it assesses their performance and, if necessary, imposes punishments on them.

When a formal written complaint is submitted to the court, a randomly selected judge reviews it and decides within five business days. If the written complaint is sufficient, the court will issue a writ requiring the defendant to be served with the complaint.

REQUIREMENTS OF A CLAIM IN ECUADOR

After the parties have filed their respective pleadings, they will each have the opportunity to argue their case before the court. The judge is responsible for deciding whether or not the claim should be dismissed after hearing the defendant's preliminary defenses. To this effect, the parties or the judge (sua sponte) may introduce oral and written evidence.

A trial hearing date must be set within thirty days after the conclusion of the pre-trial hearing. Trials often include presenting both oral and written evidence, the testimony of witnesses and experts, and the claims of both sides. At the conclusion of the hearing, the judge will give a ruling. The judge, however, may take some time away from the hearing for a few hours before making a judgment.

First and foremost, the claimant must file a written complaint with the court to begin a case. Any formal written complaint must have an indication of the competent judge as well as the identity of the claimant, including their address and e-mail address. It is also important to specify the defendant's identity and place of address. The claimant must lay out the detailed facts of the claim, including [A.] a summary of the evidence to be produced to establish the facts, [B.] The specific remedies claimed, and [C.] the proceeding applicable to the claim such as an ordinary trial, a verbal summary trial, an executive trial, or a special proceeding trial. The signature of the claimant must follow the entire claim.

After the written complaint is filed with the court, a judge is assigned to the case and has five business days to rule on whether or not the complaint has sufficient detail and clarity to warrant a hearing. If all of these conditions are met, the court will issue a writ compelling service of the written complaint on the defendant.

SERVICE OF DOCUMENTS IN ECUADOR

Service may be done personally using a letter handed directly to the accused or through mail wherein three separate written notifications were sent to the defendant's residence. If service cannot be made at the addressee's residence, the summons must be published three times in a publication with general circulation in the area.

The defendant must file a written defense within thirty days of obtaining written notice of the complaint. However, the time frame within which a defendant must submit a written defense varies by the type of case. In a conciliation hearing, the defense must be presented verbally, as in a verbal summary procedure.

Once the parties have filed their respective pleadings, they can argue their case in front of the court. The court is responsible for deciding whether or not the claim should be dismissed based on the defendant's preliminary defenses. The parties or the judge (sua sponte) may introduce oral and written evidence.

A trial hearing date must be set within thirty days after the conclusion of the pre-trial hearing. Both written and spoken evidence and testimony from witnesses and experts must be presented, and both sides must make claims. At the conclusion of the hearing, the judge will announce their ruling. The judge, however, may take some time away from the hearing for a few hours before making a judgment.

ENFORCEMENT OF A JUDGEMENT IN ECUADOR

The enforcement of any judgment is the responsibility of the court's first-instance judge. Within five business days, the court will issue a writ of execution requiring the defendant to comply with the judgment. The losing party has five days to file an objection to the order, arguing that the decision has been fulfilled. Suppose the order is not followed within the specified time frame. In that case, the judge must [A.] an order mandating the posting of the writ of execution on the Judiciary's website and [B.] instruct the sheriff to seize the debtor's property and auction it off.

All Ecuadorian courts will uphold a contractual choice of law. To establish the legitimacy and legality of foreign legislation, the diplomatic representative of that country must provide a certification. If a party does not have a diplomatic representative, the court may request certification directly from the appropriate state (Inter-American Convention on Proof or Information on Foreign Law). However, Ecuadorian law will always prevail regardless of the choice of law in property negotiations.

A dispute may be considered by either the jurisdiction of the defendant's residence or the jurisdiction agreed upon in the contract, regardless of where the parties may be physically located. Claims that, under Ecuadorian law, may only be heard in Ecuador are an exception to this rule.

ENFORCEMENT OF A FOREIGN JUDGMENT IN ECUADOR

Ecuador is a signatory to the Convention of the Organization of American States (OAS) on Letters Rogatory (1975) and the ‘Sánchez de Bustamante’ Code of Private International Law. To serve legal documents on a defendant in Ecuador, a foreign party must first apply to an Ecuadorian judge for authorization using a letter rogatory.

To petition a judge in Ecuador, a letter rogatory must be submitted to the court. Evidence will be collected in the same fashion as in regular trials. The appropriate Provincial Court Chamber must be petitioned in writing. The defendant has five days from the service date to submit an objection to enforcement and any supporting evidence to the Court.

The Court must issue a ruling within thirty calendar days of receiving the summons. The court may convene a hearing if required, and then it must make a ruling. Foreign judgments acknowledged are enforceable in the same manner as domestic decisions. The foreign court to which recognition is being sought must determine whether or not it has jurisdiction to hear the case at issue in light of the order to which recognition is being sought.

The provincial court chambers specializing in the area have authority over recognizing foreign judgments (the chambers are organized by subject matter). Because the party requesting recognition cannot pick a particular chamber, an adjudication lottery essentially chooses the relevant chamber. The district where the defendant is domiciled (has its usual abode) has territorial jurisdiction.

One of the prerequisites for recognition is that the decision be res judicata under the laws of the nation it was issued (referring to the fact that no remedies should be pending at a local level ). The judgment's supporting paperwork is also required under the condition. Foreign law must be presented to establish a judgment's res judicata status, even if the rule does not require it. It is thus recommended that evidence be filed with the decision showing that there are no outstanding remedies that may suggest the judgment is not final.

The availability of an unusual remedy, constitutional jurisdiction, through which a challenge may be made to a breach of constitutional rights or basic rights (usually guardianship ‘tutela’ or protective proceedings), presents a dilemma. Though the party against whom enforcement is sought may later seek reimbursement if it is successful in its constitutional appeal, enforcement of the decision may still be pursued even when such an action is underway.

OUR PROCESS

Documents can be faxed at (800) 296-0115, emailed to ps@undisputedlegal.com, or uploaded to our website. We do require prepayment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

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FOR ASSISTANCE SERVING LEGAL PAPERS IN ECUADOR

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Sources

1. Even though human rights instruments are often regarded as ‘soft law,’ their status in Ecuador's legal system is on par with that of inherently binding treaties.

2. Articles 53 through 56 of the OGCP outline the acceptable methods for serving the written complaint:

Through the physical delivery of a notice in writing to the accused.
Three separate written notifications were sent to the defendant's home.
If the residence address is unclear, the summons must be published in a local newspaper three times.

3. Article 142 Organic Code of the Judiciary.

4. Code of Civil Procedure 12 July 2005 (CCP) states, however, that all public instruments given in a foreign state have the same force in Ecuador and the state they were granted provided that they have been authenticated (Article 188, CCP).

5. After this, the trial will proceed like a local one (Article 144 Organic Code of the Judiciary, Article 10, OAS Inter-American Convention on Letters Rogatory).

6. Article 102 of the Organic General Code of Procedure stipulates that a foreign decision must first be recognized by the appropriate Chamber of the Provincial Court (OGCP) for a foreign decision to be enforced in local courts.

7. Article 143 of the Organic Code of the Judicial Function, which is reaffirmed in Article 208,

8. To be recognized or accepted, a judgment must comply with the standards in Article 104 of COGEP, whether declaratory (concerning rights acquired) or constitutive (establishing rights upon its issuing and may be granted alone or with the necessity for enforcement).

9. This is stated in Article 104 of COGEP.

10. Article 162 of COGEP states, ‘The party that invokes the application of the foreign law or dissent of it will present the diplomatic agent's certification on the law's authenticity and validity.’