Answer ... Article 104 of the COGEP sets out the requirements that a foreign judgment must meet in order to be recognised in Ecuador, as follows.
“1. That they have the necessary external formalities to be considered authentic in the State of origin”: This requires that the judgment be presented together with all relevant documents, including clarifications or extensions. The term ‘external formalities’ is obviously broad and will depend on the legislation of the country in which the judgment was issued. The party seeking recognition must prove that all such formalities are satisfied in the judgment as presented – for example, by means of certification by a diplomatic agent or by way of apostille following the procedure indicated in Article 201 of COGEP.
“2. That the judgment passed in the authority of res judicata in accordance with the laws of the country where it was issued and the necessary annexed documentation is duly legalized”: As discussed in question 2.2, the judgment must be res judicata and proof of this must be presented alongside the judgment – for example, in the form of certification by the court that issued the judgment. If this is not possible, then the foreign law must be accredited following the rule set out in Article 162 of COGEP, as revised.
“3. If applicable, documents must be translated”: If the judgment has been issued in a language other than Spanish, it must be translated, according to Article 200 of the General Organic Code of Processes. Where a judgment is pronounced against people who do not speak Spanish (eg, Quechua people), the applicable constitutional and legal provisions require that it be translated into their language.
“4. That all relevant procedural documents and corresponding certifications show that defendant was legally served and that due defence of the parties was ensured”: One of the most important issues is to demonstrate that due process was followed in the country in which the judgment was granted, and in particular that the party against which recognition is sought was duly served. The applicable laws on summons and service of process shall be those of the country in which the judgment was issued. Along with the judgment, certification or affidavit of service must therefore be presented which, according with the law, must be accredited with documents on the file. The law does not indicate what form such certification should take; it may thus be understood as proof that service or notification was valid and that all necessary steps were carried out.
One of the biggest problems in this regard arises if the matter was decided in absentia. In such case it will be necessary to provide proof of the steps carried out for service of process and of the effects of contempt.
“5. That the petition indicates the place for service of process of the natural or legal person against whom the resolution issued abroad is to be enforced”: In this regard, difficulties may arise in cases where there is no counterparty, such as divorce by mutual consent, or where the domicile is unknown.
As noted above, particular attention should be paid to the last paragraph of Article 104, which provides as follows:
For the purpose of recognizing judgments against the State, because they are not commercial matters, it must also be demonstrated that they do not contravene the provisions of the Constitution and the law, and that they are in accordance with the international treaties and conventions in force. Treaties and international agreements shall be complied with if they are included in the respective exhort or the national law of the country of origin recognizes their effectiveness and validity.
A literal interpretation of the above would suggest that as judgments handed down against the state do not constitute commercial matters (something which in reality should be determined on a case-by-case basis), it must additionally be demonstrated that they do not contradict the Constitution and / or Ecuadorian law, and that they accord with international treaties and conventions in force. This implies that such judgments must be revised according to the Constitution and Ecuadorian law, because if they are contradictory, they cannot be recognised and then enforced. In this case, there are three possibilities:
- The party seeking recognition must demonstrate that the judgment does not contradict Ecuadorian public order – this is no simple task, because it will not know in advance what counter-arguments its opponent may present;
- The opponent asks the court to conduct this test; or
- The court decides to conduct this test on its own initiative.
The same applies if foreign judgments do not accord with international treaties.
When there are no treaties, the principle is that international judgments against the State should be carried out under the terms of the respective Treaty or Convention, for which it is enough that the respective Treaty or Convention appears in the exhort, which is consistent with the norm we are analyzing. However and following Article 103, it is very likely to be argued that the process of recognition must be followed (exception made to the Resolutions of the Court of Andean Justice), because someone could argue that there could be violations to the Constitution or the Law or the treaty, or that it is necessary to discuss whether the judgment is res judicata in the country where it was issued, making it still unenforceable.
In any case, even when stated in the exhort, the requirements indicated in the five numerals of Article 104 must be met.
On the other hand, it is important to highlight the phrase "for not dealing with commercial matters" since that would lead us to conclude that, when the matter is commercial, it is directly subject to the analysis of the 5 requirements noted above, but if it is non-commercial (i.e. labor, civil properly said, such as family matters, etc.), it is subject to a mandatory review to determine whether or not the Constitution, treaties and local laws have been violated.
In fact, the history of the regulations in this matter leads us to remember that, in order to be able to enforce a foreign judgment, in addition to not contravening Ecuadorian Public Law and being res judicata in the country of origin, it is required that it falls into personal action. And it is understood by personal action, which concerns personal rights (or credits). This excluded from the regulation the actions that did not have that connotation.