La desvalorización del arbitraje en el Ecuador, análisis del reconocimiento constitucional y la eficacia en su aplicación

Abstract

Arbitration in Ecuador has express constitutional backing under Article 190 of the 2008 Constitution, a systematic legal framework established by the 1997 Arbitration and Mediation Act, and a jurisprudential line from the Constitutional Court aimed at consolidating the principles and guarantees inherent to the arbitration system. However, in practice, the mechanism remains underutilized. Through a legal-doctrinal and comparative approach, this research analyzes the factors that explain the gap between regulatory recognition and the effective application of arbitration in the country. The study identifies that this gap is not due to a single cause, but rather to the interaction of economic, procedural, regulatory, jurisprudential, institutional, and cultural factors. Among the most relevant are: the direct costs of the arbitration process; the geographic concentration of arbitration centers in Quito and Guayaquil; the outdated Arbitration and Mediation Act, which has not undergone comprehensive reform since 1997; the jurisprudential variability in interpreting the grounds for setting aside awards; the use of constitutional guarantees as extra-legal means of to challenging awards; and a legal culture predominantly oriented toward ordinary judicial proceedings. A comparative analysis of Peru and Colombia identifies the factors that have contributed to strengthening arbitration in those systems. The research concludes with four proposals: incorporating arbitration as a mandatory subject in university education, creating arbitration legal clinics, developing institutional outreach campaigns, and establishing a public accreditation system for arbitration centers.