IMPROCEDENCIA DE LA EXCEPCIÓN DE EXISTENCIA DE CONVENIO ARBITRAL EN LOS PROCESOS DE EJECUCIÓN.

Abstract

In a recent amendment to article 373 of the ecuadorian Code of civil procedure, the existence of an arbitration agreement defense in execution proceedings such as the mediation act, the pledge contract, the sale contracts with reservation of title, the extrajudicial and judicially approved transaction, and the open or closed mortgage were added as one of the defenses against the writ of execution. The problem arises at the moment of determining who has the jurisdiction to resolve this defense, because when we are in an execution proceeding, the ordinary civil judge has jurisdiction to resolve such defense, nevertheless when dealing with an arbitration agreement, the ordinary judge can only limit himself to determine if it exists or not, and if it does exist, he must inhibit himself and refer the process to an arbitration court so that it may resolve it due to the Kompetenz-Kompetenz principle. Once the process has been referred to an arbitral bench, the judge must rule on the merits of the case, unnecessarily suspending the writ of execution of a right that has already been previously recognized in the enforcement title, disregarding the legal nature of the execution proceedings and violating the rights of the parties, also without considering that the arbitrators do not have coercive powers and therefore could not enforce the same, so it is suggested to make an amendment to the COGEP removing this defense or granting coercive powers to the arbitral bench.