ADR

Ecuador Digitalizes Domestic Arbitration Amid the COVID-19 Pandemic

In the wake of the COVID-19, domestic arbitration institutions and arbitral tribunals are conducting arbitration proceedings remotely. The digitalization of arbitration in the country not only represents a positive transformation in the way domestic proceedings are conducted but it also offers a more efficient dispute resolution alternative in a time when local courts are being paralyzed by the pandemic. This new era for domestic arbitration will involve difficulties, however, as with all arbitral practice, the best guidance will be gained over time.

Almost every State in the world has adopted strict “social distancing” measures in order to contain the COVID-19 pandemic. As a result, society has immersed in this new reality where avoidance of large groups and crowded places is necessary. President Lenin Moreno declared a state of national emergency on March 16, 2020 and adopted measures which restrict the freedom of circulation in the country. Under the state of emergency, public massive events were prohibited as well as social gatherings of more than 10 people. Domestic courts have temporarily suspended hearings, trials and proceedings in most cases with the exception of some criminal matters. Although necessary, these measures may bring complications for the judicial system in the upcoming months and will demand from authorities a well-designed strategy to avoid its collapse.

The judicial system in Ecuador, as in most Latin American countries, has been struggling for years trying to implement technology to its everyday activities. However, domestic courts are still not ready to conduct proceedings using technological tools during this crisis. Most of the judicial files have not been entirely digitalized, some judges, clerks and administrative personnel are not familiar with technological platforms and the filing of documents is still done in paper. Conversely, this reality is different for international arbitration proceedings in which conduction of hearings, submission of documents and presentation of evidence are conducted remotely in the wake of the COVID-19.

Initially, domestic arbitral institutions and arbitral tribunals took a similar approach to the judicial system by suspending all activities in the conduction of arbitration proceedings. However, in the last few days, arbitral institutions and tribunals have decided to finally jump into the wave of digital transformation. While local courts are still paralyzed due to the pandemic, arbitral institutions have decided to resume activities. The most important arbitration centers in the country are encouraging tribunals and arbitration users to use technological platforms for conducting hearings remotely. In addition, arbitrators and arbitral secretaries are obtaining electronic signatures to notify to the parties with procedural orders and wards. All of these features are new to the domestic arbitration community. However, arbitral institutions and arbitrators are well-equipped to deal with this new challenge.

The digitalization of domestic arbitration will inevitably involve some errors which will be resolved over the upcoming weeks by gaining experience. This new era in domestic arbitration will also rise issues such as the implementation of cybersecurity protocols which were not familiar for domestic arbitration users in the past. Nevertheless, as with all arbitral practice, the best guidance will be gained over time.

Disclaimer: This document is informative and does not, and is not intended to, constitute legal advice.