1 Legal and judicial framework
1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?
The Organic Code of the Judicial Function, published in Official Gazette 544 of 9 March 2009, clarified some previous uncertainties over which body is competent to recognise foreign judgments.
In 2016 the new General Organic Code of Processes (COGEP) came into force. Chapter VII ("Judgments, Arbitral Awards and Mediation Acts Issued Abroad"), which encompasses Articles 102 to 106, regulates the recognition and enforcement of foreign judgments. In 2018 Article 42 of the Arbitration and Mediation Law and Article 102 of COGEP were amended to exclude arbitral awards from the requirement for prior recognition; they may now be passed directly for execution, in the same way as national arbitral awards.
Many treaties to which Ecuador is a party also allude to the recognition of foreign judgments and often establish faster execution mechanisms.
The foregoing applies without prejudice to the rules of domestic law and local public order, which establish certain special powers for judges. One example is the rule that "Marriage contracted in Ecuador may not be annulled or dissolved by divorce… but by means of a judgment pronounced by Ecuadorian judges, when one of the spouses is Ecuadorian and there are minor children or children under their dependency residing in Ecuador".
1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?
Ecuador has signed and ratified the following international instruments on the subject, among others:
- The Pact on the Execution of Foreign Acts, signed in Caracas on 18 July 1911, establishes that judgments and awards issued in civil and commercial matters will have effect in other signatory states in accordance with the provisions of the pact.
- The Treaty to Establish Uniform Rules on Private International Law, signed in Lima on 9 November 1878, establishes uniform rules on private international law. Title 6 deals with the execution of judgments and other jurisdictional acts; Article 40 provides that judgments and any other judicial decisions in civil matters issued in signatory states will be fulfilled by the national authorities, subject to the provisions of this title.
- The Code of Private International Law, known as "Código Sánchez de Bustamante", signed in 1928, refers to international procedural law in Book 4. Article 314 states that the law of each contracting state determines the jurisdiction and organisation of the courts, and the forms of prosecution and execution of judgments and sentences.
- The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, held in 1958 known as the "New York Convention", which has been invoked many times in Ecuadorian proceedings. Article 1 provides that it applies "to the recognition and enforcement of arbitral judgments issued in the territory of a State other than that in which recognition and enforcement is requested., of those judgments, and that have their origin in differences between natural or legal persons. It will also apply to arbitration judgments that are not considered as national judgments in the State in which they are requested to be recognized and executed".
- The Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, signed in 1929, applies to judgments and arbitral awards rendered in civil, commercial and labour proceedings in a state party, unless at the time of ratification that state makes an express reservation to limit the convention to compensatory judgments involving property.
- The Inter-American Convention on International Commercial Arbitration, adopted in Panama City on 30 January 1975, provides that Ecuadorian public law entities cannot submit to a foreign jurisdiction.
1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?
Article 143 of the Organic Code of the Judicial Function, confirmed by Article 208, establishes that jurisdiction for the recognition of foreign judgments rests with the provincial court chambers specialised in the matter (the chambers are organised by subject matter). The relevant chamber is effectively selected by means of an adjudication lottery, because the party seeking recognition cannot choose a certain chamber. Territorial jurisdiction is determined by the district in which the defendant is domiciled (ie, has its habitual residence.
The relatively new General Organic Code of Processes (COGEP) confirms the provisions of the Organic Code of the Judicial Function. Article 102 states that for the recognition of judgments and mediation agreements issued abroad, jurisdiction will correspond to the specialised provincial court chambers of the domicile of the party against which recognition is sought; while for the enforcement of judgments, arbitration awards and mediation agreements issued abroad, jurisdiction will rest with the first-instance judge at the place where the respondent or competent defendant is domiciled.
Resolution 06-2017, issued by the National Court of Justice, provides that for both local judgments and recognised foreign judgments, enforcement is the responsibility of the judge at the place where the party named in the corresponding enforcement instrument is domiciled, as stated in Article 102 of COGEP.
2 Requirements for enforceability
2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?
The fundamental rule in this regard is Article 102 of the General Organic Code of Processes (COGEP). Any type of judgment that is declarative or constitutive of rights (the former concerns rights that are acquired, while the latter establishes rights upon its issuance and may be issued alone or with the need for enforcement), or that is aimed at enforcement, can and must be recognised or approved if the requirements established in Article 104 of COGEP are met.
2.2 Must a foreign judgment be final and binding before it can be enforced?
Article 104 of COGEP includes among the requirements for recognition a condition that the judgment be res judicata under the laws of the country in which it was issued – that is, no remedies must be pending. The provision further indicates that the documentation relating to the judgment must be attached.
Although the rule does not expressly so provide, the status of a judgment as res judicata is a fact to be accredited through proof of foreign law (Article 162 of COGEP: "The party that invokes the application of the foreign law or dissent of it will present the certification of the diplomatic agent on the authenticity and validity of the law.") It is thus advisable that, together with the judgment, proof is submitted that no remedies are pending that may imply that the judgment is not final.
2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?
Such a judgment cannot be presented for recognition and subsequent enforcement, since it is not res judicata.
Res judicata means that no procedural remedies (whether horizontal or vertical) are possible, including a cassation appeal (although the mere presentation thereof does not suspend enforcement of a ruling that has been issued, unless a bond is presented). The notion of res judicata thus implies that all instances and recourses have been exhausted, and the judgment is enforceable in the country of origin.
A complex problem is presented by the existence of an extraordinary recourse: constitutional jurisdiction, through which a violation of constitutional rights or fundamental rights (typically guardianship "tutela" or protection actions) may be challenged. Where such an action is pending, enforcement of the judgment may still be sought, although the party against which enforcement is sought may subsequently seek restitution if it prevails in its constitutional appeal.
However, unless the law of the country in which the judgment was issued clearly states that, pending an extraordinary appeal for guardianship or protection, enforcement of the judgment or its status as res judicata is suspended, the judgment will be regarded as enforceable.
2.4 What is the limitation period for making an application for recognition and enforcement?
There is no limitation period for making an application for recognition and enforcement of foreign judgments or mediation agreements. However, under the rules on the right to take action, and with certain exceptions where short-term requirements apply, an action that is not taken within 10 years is understood either to be prescribed or simply to have expired.
Our view is that it has expired, although the lack of norms in this regard has led to diverse opinions on the matter.
3 Recognition and enforcement process
3.1 Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?
From a practical point of view, recognition is a separate procedure that takes place prior to enforcement.
This is clear from Article 143 of the Organic Code of the Judicial Function and Article 102 of the General Organic Code of Processes (COGEP), which indicate different competences for recognition (the provincial court chambers) and for enforcement (the first-instance judge at the place where the defendant is domiciled).
However, this is not merely a matter of competence, but also of legal necessity. The principle that underpins these rules is that a foreign judgment or foreign mediation agreement must first be recognised to give it the same implementation effects it would have in the country of origin. Only once the judgment has been recognised does it acquire the status of res judicata in Ecuador, which allows it to be enforced.
Article 103 of COGEP provides that if the foreign judgment originated in a country with which Ecuador has entered into a treaty, once it has been recognised in Ecuador, it will have the full force granted by such treaty or convention, with no review on the merits possible. If it originated in a non-treaty country, recognition simply gives it the capacity to be enforced (or res judicata status in Ecuador). The wording of this article suggests that, even where an international treaty indicates that a judgment can be directly enforced, it must first be recognised, although the merits of the judgment cannot be reviewed. Thus, direct enforcement without recognition is not possible.
3.2 What is the formal process for recognition and enforcement?
Article 105 of the COGEP provides:
To carry out the homologation, the requesting party will present his request before the competent chamber of the Provincial Court, which, having reviewed the compliance of this chapter, will arrange the notification to the requested party in the place indicated for the effect. Upon service of process to the person against whom the judgment will be enforced, such party will have a term of five days to present and prove his opposition to the homologation. If the opposition is duly substantiated and accredited and the complexity of the case warrants it, the Court will convene a hearing, which will be held and resolved in accordance with the general rules of this Code. The hearing must be convened within the maximum term of twenty days counted from the time the opposition was presented. Only horizontal remedies may be brought from the judgment of the Provincial Court chamber. Once the homologation is finalized, the judgments and mediation documents that came from abroad will be complied with, in the manner foreseen in this Code on execution.
With regard to foreign arbitral awards, Article 42 of the Arbitration Law applies (see question 1.1).
3.3 What documents are required in support of an application for recognition and enforcement?
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.
3.4 What fees are payable for recognition and enforcement?
As justice in Ecuador is freely administered by constitutional provision, procedural costs arise only in the case of aggressively litigious conduct or inadequate procedural conduct. Therefore, only attorneys' fees need be considered in this regard.
3.5 Is the applicant required to provide security for costs?
3.6 How long does it usually take to obtain a declaration of enforceability?
Article 105 of COGEP states that this term is 30 days (business days only, excluding weekends and holidays), counted from the date of service. If a hearing is necessary due to opposition (which must be resolved orally), this hearing must be convened within a maximum term of 20 days, counted from the date of filing of the opposition.
In practice, however, the actual term will depend on the caseload of the chambers; but even then, the process will take a few months at most, rather than years as previously.
3.7 Can the applicant seek injunctive relief while the process is ongoing?
If the judgment has not been recognised, preventive measures cannot be requested. Once it is recognised, it would apply in the same way as the titles of execution and some executive titles allow it.
4.1 On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?
Opposition is permitted by law, pursuant to the second paragraph of Article 105 of the General Organic Code of Processes (COGEP).
An opposition to the recognition of a foreign judgment should focus on the failure to meet one of the requirements set out in Article 104. Any such failure that is demonstrated will prevent recognition of the judgment.
In the case of a judgment against the Ecuadorian state, or if it is found that this is not a commercial matter and that the Constitution and Ecuadorian law (and with them, public order) are not contradicted, an opposition may be raised by disputing whether the judgment is in fact a commercial matter and therefore whether the potential violation of any such rules should be assessed.
In general terms, substantive matters concerning the judgment are not reviewed, unless the judgment violates Ecuadorian public order.
4.2 What is the limitation period for filing a challenge?
Article 105 of COGEP provides that, once the opponent has been served, it has five days to present and prove its opposition to recognition.
The judge will decide on the opposition within 30 days of the date on which it was served.
4.3 Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?
With the exception of certain guarantees (which are more specific guarantees or, in certain administrative law cases, requests for the suspension of an administrative act that is causing or may cause harm), injunctive relief to prevent enforcement while a challenge is pending is not possible, even for local judgments. Exceptionally, however, where serious and well-considered arguments are presented, a jurisdictional guarantee may be granted as a precautionary measure at the constitutional level; however, this applies only to very serious matters and cannot be used frivolously.
5 Court analysis and decision
5.1 Will the court review service of process in the initial proceedings?
Yes – among other things, the court must verify that service of process was properly made in the initial proceedings. This is because due process is considered crucial.
5.2 Will the court review the jurisdiction of the foreign court in the initial proceedings?
The court is not required to review the jurisdiction or competence of the court that issued the foreign judgment. However, in determining whether the judgment is res judicata, one of the factors that the court will review is whether the court that issued the judgment had jurisdiction. It is difficult to imagine that certification of res judicata would be issued by a body that was unsuitable to do so; although it cannot be excluded that problems may arise in this regard.
5.3 Will the court review the foreign judgment for compliance with applicable law and public policy?
In the case of judgments against the Ecuadorian state, the court is expressly required to do so under Article 104 of the General Organic Code of Processes (COGEP).
As discussed in questions 3.2 and 4.1, a judgment which is not a commercial matter may be reviewed to determine that it does not violate the Constitution or Ecuadorian law, or any applicable treaties.
5.4 Will the court review the merits of the foreign judgment?
The court will not review the merits of the foreign judgment, except in the event of a violation of the Constitution, Ecuadorian law or applicable international treaties. In cases where it is necessary to review the conformity of the judgment with the Constitution, Ecuadorian law or applicable international treaties, the court will consider whether the decision adopted on the basis of the facts tried in that initial proceeding is in accordance with local regulations.
5.5 How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?
This may be regarded as an argument of res judicata. Although this defence is not available under the requirements of Article 104, it may nonetheless reflect the reality – for example, where a plaintiff that loses a case in Ecuador decides to bring it to a foreign jurisdiction, where it obtains a favourable ruling. In such case the courts cannot refuse to hear the matter. Although there is no rule in this regard, the res judicata requirement could prove decisive in this situation.
5.6 Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?
5.7 Is partial recognition and enforcement possible?
If only part of a judgment were presented for recognition in Ecuador, it is possible that the chamber might not fully understand the matter, so judgments should arguably be recognised in its entirety. The situation is different with regard to enforcement: at this stage, a party may request that only certain resolutions of the judgment be enforced.
5.8 How will the court deal with cost issues (eg, interest, court costs, currency issues)?
As outlined in question 3.4, no court filing or processing fees are payable.
With regard to interest and currency issues, these should be considered to fall within the merits of the case. If the judgment seeks payment of a monetary amount, it should indicate the currency in which this should be paid and whether interest is payable –automatic or legal.
With regard to interest, once the judgment has been recognised, the court will order that this be calculated by an expert (Article 371 of COGEP). Some argue that if the judgment does not provide for the payment of interest, the local court should order the payment of legal interest. However, in the authors' view, this should be resisted, as it would mean that a local court which has no knowledge of the substantive matters in dispute is ordering the application of national regulations to a case that has not been resolved through the Ecuadorian justice system. Ultimately, the request for payment of interest is a power of the party requesting it, and not an imposition of the law.
As far as currency is concerned, as in Ecuador obligations are extinguished only in the currency indicated in a public law statute, the enforcement court may order the same expert to make similar calculations to convert the amount payable into the currency of legal tender in Ecuador.
6.1 Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?
No. Article 105 of the General Organic Code of Processes expressly prohibits this, stating: "Only horizontal remedies may be brought from the judgment of the Provincial Court chamber."
However, where a party considers that constitutional rights or treaties are being violated, it may seek a jurisdictional guarantee (ie, a constitutional right of discretionary exercise) and bring the case before the Constitutional Court through an extraordinary action of protection, which will decide whether there has been such a violation.
6.2 Can the applicant seek injunctive relief while the appeal is pending?
7 Enforcing the foreign judgment
7.1 Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?
Once it has been recognised, a foreign judgment becomes res judicata and thus enforceable in Ecuador. It may then be enforced through what is called an ‘execution process', which consists of "the set of procedural acts to enforce the obligations contained in an enforcement title" (Article 365).
Ecuadorian law recognises in certain titles the intrinsic capacity to be enforced, including national and foreign arbitral awards, and foreign judgments and mediation agreements that have been duly recognised.
In such cases the competent court – which is the court at the place where the defendant is domiciled – will intervene directly in the enforcement, which consists of the realisation or specific application of the provisions of the foreign judgment.
7.2 Can the foreign judgment be enforced against third parties?
No. If a party was not a party to the foreign litigation in which the judgment was handed down, the judgment cannot be enforced against it in Ecuador.
8 Trends and predictions
8.1 How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Cases of recognition and enforcement have not increased under the General Organic Code of Processes; although unless an extraordinary constitutional action is raised, it is difficult to maintain a record of processed cases. No further legislative reforms in this regard are expected at present.
9 Tips and traps
9.1 What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?
It is important that the formalities set forth in Article 104 of the General Organic Process Code are complied with:
- The judgment must meet all external formalities to be considered authentic under the laws of the country in which it was issued.
- The judgment must be res judicata and all information must be duly legalised, either through respective certification by the body that issued the resolution or by proving that all instances and recourses available under the foreign law have been exhausted and the judgment is thus enforceable.
- The documents must be in Spanish; otherwise, they must be translated prior to their presentation in the Ecuadorian courts.
- The defendant must have been legally summoned and had sufficient opportunity to present its defence (which may be proved by copies of the service of process documents, which should be presented alongside the judgment, or by the response to the petition presented by the defendant).
- The place of service of process on the defendant (ie, the person against which the resolution will be enforced) must be specified.
The substantive matter of the resolution must be taken into consideration – that is, whether it concerns commercial matters – for the different purposes provided by the legislation.
The petition for recognition must be filed directly with one of the civil chambers of the provincial court of the defendant's domicile; and in the case of enforcement, before one of the civil judges at the place of the defendant's domicile.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.