Constitutional prohibition for Ecuador to agree to international arbitration in commercial and investment matters?

A new look at article 422 of the Constitution from the constitutional interpretation

Abstract

During the more than ten years that the Constitution has been in force, Article 422 of the Constitution (“CRE”) has been subject to various interpretations, many of them dissimilar and opposed to each other. The question that revolves around this rule is what is the scope of the prohibition is contained therein, mainly on the possibility for the State to resort to international arbitration in contractual or commercial and investment disputes. This article will seek to determine the scope of this constitutional prohibition and whether or not it includes Bilateral Invest-ment Treaties.To analyze this, we will first refer to the content of Article 422 of the CRE and then we will interpret the regulation from three perspectives: from a systematic point of view, a literal point of view, and a pro-rights based interpretation. Ha-ving made this analysis, we will conclude that the prohibition of Article 422 does not reach Bilateral Investment Treaties, and, moreover, it is a prohibition of source or origin of arbitration, i.e., it does not include a new concept of non-negotiable subject matter.