Unconstitutionality of Non-Appealability of Awards in Ecuador

Abstract

The State has various powers, including the power to administer justice. A transversal axis in this exercise is the right to due process, which contains the right to defense. The latter includes the fundamental guarantee of right to appeal the decision. However, not only the State has sought to exercise these faculties, but at the same time individuals have organized themselves for the private institutionalization of justice. The result is the existence of alternative dispute resolution. One of these methods is arbitration. It has been specifically regulated in the Ecuadorian legislation by the Statute of Arbitration and Mediation. However, this statute has restricted the right to appeal the awards. This prohibition has been supported by the Constitutional Court through three main arguments that have been exposed in the acquittal of constitutional consultations. This paper will analyze the validity and coherence of these arguments used to defend the constitutionality of this limitation. The first argument states that the prohibition is legitimate because is done through a statute, but it neglects constitutional supremacy. The second, defends an alleged lack of jurisdictional authority in arbitration, but it does not consider that Ecuadorian law has recognized the jurisdictional and public service nature of arbitration. Finally, the third argument states that, through the arbitration agreement, parties assume a waiver of the right to appeal the award, but it forgets that constitutional rights are inalienable. As a result, the constitutionality of the non-appealability of the awards in Ecuador is in doubt. Finally, it is recommended as an alternative, the creation of a system of appeal courts inside arbitration, to preserve its private nature but without ignoring its jurisdictional nature.