Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

The Ecuadorian State has lately faced complains from individuals claiming to have delivered goods, services or works on favor of public entities without having mediated pre-contractual or contractual procedures. Payments are demanded intended to execute obligations arising from alleged tacit contractual relationships. Opinions on this issue are divided in both academia and jurisdictional bodies. In search of the long-awaited justice, it is argued that on one hand these payments must be honored; but doing so would inevitably involve the validation of non-compliance with the law. This paper aims to discuss whether it is possible to recognize this type of tacit agreements with the State in the light of public contract law, based on the analysis of the essential elements of the administrative contract. Then, reviewing the constitutional principle of freedom of work and ending with budgetary impact without prior commitment in the Código Orgánico de Planificación y Finanzas Públicas.

Until the last decade, financing mechanisms for the development of initiatives, with or without profit, have been framed in the financial and stock markets. The restrictions and complexities that these traditional alternatives entail have resulted in the materialization of a new mechanism, called crowdfunding, which emerges as a market solution to the problem of lack of access to financing. Through this route, multiple investors contribute, together, the necessary capital to carry out a project as a donation or exchange of a consideration that will depend on the type of crowdfunding. The accelerated growth of this mechanism has caused its regulation in some legislations, to which Ecuador has joined. These regulations, right in some cases and misguided in others, carry a direct causality regarding the success or failure of this new mechanism in each country in which it is established. For this reason, the purpose of this article is to analyze the regulation of crowdfunding in Ecuador in comparison with foreign legislation, to show whether or not it favors the existence of this new mechanism in the country.

As a general rule, the separability principle is applied when grounds to set aside an arbitral award affects the validity of the contract and the arbitration agreement. This principle supports that both contracts are two independent and autonomous contracts, so that the nonexistence or invalidity of one does not affect the other. In certain cases, the volitional element for the acceptance of booth the underlying contract and the arbitration agreement is manifested by a single act and can be vitiated by a cause of nullity that affects both contracts. Consequently, the causes of nullity of double impact, so called because they simultaneously affect the underlying contract and the arbitral agreement, make the principle of separability not of absolute application. Therefore, this paper aims to analyze the application of the principle of separability in the causes of nullity of double impact and determine the legal consequences that result in arbitration and ordinary justice.

This essay is an approach to one of the most relevant commercial contracts around the world: leasing. The analysis carried out seeks to go beyond the legal nature of the contract and the legal provisions that concern it, focusing on the economic, tax and accounting aspects thereof; presenting it as a way of obtaining financing, avoiding the obsolescence of goods and gainig certain operational advantages. The parties involved in this contract achieve the specific benefits that this figure grants, and the countries that encourage its use have a higher rate of modernization in their industry as well as positive impacts on the Gross Domestic Product. Ecuador is taken as a case study, considering the applicable legal system as well as the benefits and disadvantages present in the country. This work seeks to give a comprehensive look at leasing, going beyond the legal, in a contract that has evolved from the beginning of trade to the present.

The purpose of this article is to demonstrate, in the light of the jurisprudence of the Court of Justice of the Andean Community, that the control of legality contained in the annulment action of Andean law resembles a judicial review of administrative action when the contested community act is an administrative act. With that purpose, it explains the difference between a judicial review of administrative action of objective nature (legality control) from a subjective one (which, in addition to the control of legality, seeks the effective protection of the violated right or interest), to then mention the jurisprudential evolution of said international court in the sense that it first accepted that certain resolutions of the General Secretariat of the Andean Community are administrative acts, after the aforementioned legality control is equivalent to a judicial review of administrative action of objective nature and, finally, that said control has initial features of a subjective judicial review of administrative actions.

When studying civil liability, and the importance of its constitutive elements to determine the obligation to compensate the harm caused to a third party, the analysis of the damage is essential. Nonetheless, when entering the field of human rights, this element"™s relevance is discussable. This article will study the reasons why it is not necessary to consider the damage as a requirement to attribute state responsibility for a human rights"™ violation.

The annulment of arbitral awards is an action that arose in Ecuador as the judicial control mechanism of the State towards arbitration, since this institution is an alternative method of dispute resolution with jurisdictional power. Considering the broad interpretation concerning the grounds for the invalidity action, the Ecuadorian Constitutional Court issued in 2019 two judgements that limit the application of the grounds to the specificity of what is expressly established in the rule. For this reason, this article seeks to carry out an analysis of the legal regime of the invalidity action in Ecuador, as well as determining if the catalogue of clauses is limited. In this regard, firstly, the invalidity action and its role in the arbitration will be explained. Next, various decisions reflecting the interpretation, scope and application of the grounds for annulment will be discussed. Once the various positions taken by Ecuadorian jurisprudence have been established, the taxonomy of the causes of annulment of awards will be ratified, as it is an intrinsic characteristic of the exceptionality of such action. Finally, we will consider causes not foreseen in the Ecuadorian legal system, which nevertheless must be considered by the role of the State at the international level.