We suggest this UEES Model Clause for dispute resolution, to be incorporated in contracts, deeds of credit, public deeds and any other document or instrument that may be the subject of controversy. We clarify that this model clause is a recommendation and, therefore, can be adapted according to the will and need of the parties in each case, as long as it complies with the law in force.
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim relating to this instrument shall be settled in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in law by an Arbitral Tribunal of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES and in accordance with its rules, for which the arbitrators may dictate and execute precautionary measures, without the need to resort to ordinary justice, or, even the parties may resort to an emergency arbitrator of the same Center for its obtaining and execution before the constitution of the arbitral tribunal. Both mediation and arbitration shall be conducted in Spanish and in accordance with the laws in force in the Republic of Ecuador”.
We also propose these additional model clauses in case the parties prefer other specifications such as that the arbitration be resolved by a single arbitrator, or in equity or without mediation or without interim measures in arbitration, among others, clarifying again that these recommendations can be adapted according to the will of the parties, as long as they comply with the law:
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim, relating to this instrument shall be settled in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in law by a sole arbitrator of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the arbitrator may dictate and execute precautionary measures, without the need to resort to the ordinary courts, or even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the sole arbitrator. The counterclaim, if any, shall also be submitted to arbitration. Both mediation and arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and in accordance with the laws in force in the Republic of Ecuador”.
“Any controversy regarding the execution, interpretation, breach, nullity or any other claim related to this instrument shall be resolved by arbitration in law by an Arbitral Tribunal of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the arbitrators may issue and execute precautionary measures, without the need to resort to the ordinary courts or, even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the arbitral tribunal. The counterclaim, if any, shall also be submitted to arbitration. Both mediation and arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and in accordance with the laws in force in the Republic of Ecuador”.
“Any controversy regarding the execution, interpretation, breach, nullity or any other claim related to this instrument shall be resolved by arbitration in law by a sole arbitrator of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the arbitrator may issue and execute precautionary measures, without the need to resort to the ordinary courts or, even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the sole arbitrator. Counterclaims, if any, shall also be submitted to arbitration. Both mediation and arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and in accordance with the law of the Republic of Ecuador”.
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim, relating to this instrument shall be settled in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in equity by an Arbitral Tribunal of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the arbitrators may issue and execute precautionary measures, without the need to resort to the ordinary courts, or even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the arbitral tribunal. The counterclaim, if any, shall also be submitted to arbitration. Both mediation and arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and in accordance with the laws of the Republic of Ecuador”.
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim, relating to this instrument shall be resolved in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in equity by a sole arbitrator of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the sole arbitrator may dictate and execute precautionary measures, without the need to resort to ordinary justice, or even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the sole arbitrator. The counterclaim, if any, shall also be submitted to arbitration. Both mediation and arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and in accordance with the laws in force in the Republic of Ecuador”.
“Any controversy arising or arising within this corporation, company, foundation or association, which is related to its existence or operation, including the challenge of decisions of the general meeting or board of directors, the differences arising between partners or shareholders, between them and the company or its administrators, or between the company and the persons who administer it, or as well as conflicts permitted by law, shall be resolved in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in law by a sole arbitrator of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the sole arbitrator may dictate and execute precautionary measures, without the need to resort to the ordinary justice; or, even the parties may resort to an emergency arbitrator before the same Center for its obtaining and execution before the constitution of the sole arbitrator. The counterclaim, if any, shall also be submitted to arbitration. Both mediation and arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and in accordance with the laws in force in the Republic of Ecuador”.
Any controversy arising or arising within this society, company, foundation or association, which is related to its existence or operation, including the challenge of decisions of the general meeting or board of directors, the differences arising between partners or shareholders, between them and the company or its administrators, or between the company with the persons who administer it, or as well as conflicts permitted by law, shall be resolved in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in law by an arbitration tribunal of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules, for which the arbitrators may dictate and execute precautionary measures, without the need to resort to the ordinary justice; or, even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the arbitration tribunal. The counterclaim, if any, shall also be submitted to arbitration. Both the mediation and the arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and according to the current law of the Republic of Ecuador.
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim, relating to this instrument shall be settled in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy will be resolved in law by a sole arbitrator of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules. The parties may request injunctive relief before the ordinary courts, which shall not affect the validity of the arbitration agreement. The counterclaim, if any, shall also be substantiated in arbitration. Both the mediation and the arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and according to the current law of the Republic of Ecuador”.
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim, relating to this instrument shall be settled in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy will be resolved in law by an arbitration tribunal of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES, in accordance with its rules. The parties may request injunctive relief before the ordinary courts, which shall not affect the validity of the arbitration agreement. The counterclaim, if any, shall also be substantiated in arbitration. Both the mediation and the arbitration shall be conducted in Spanish, with headquarters in Samborondón, province of Guayas, and according to the current law of the Republic of Ecuador”.
“Any dispute regarding the execution, interpretation, breach, nullity or any other claim relating to this instrument shall be settled in mediation before the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espiritu Santo - UEES. In the absence of total agreement in mediation, the pending controversy shall be resolved in law by an Arbitral Tribunal of the Arbitration and Mediation Center of the Universidad Particular de Especialidades Espíritu Santo - UEES and in accordance with its rules, for which the arbitrators may dictate and execute precautionary measures, without the need to resort to ordinary justice, or even the parties may resort to an emergency arbitrator of the same Center to obtain and execute them before the constitution of the arbitral tribunal. The arbitrators shall be selected in accordance with the procedure provided for in the law on arbitration and mediation. Both mediation and arbitration shall be conducted in the Spanish language and in accordance with the law of the Republic of Ecuador”.
“Art. 3.- The parties shall indicate whether the arbitrators shall decide in equity or in law; in the absence of agreement, the award shall be in equity.
If the award is to be made in equity, the arbitrators shall act to the best of their knowledge and belief and in accordance with the principles of sound judgment. In this case, the arbitrators need not necessarily be lawyers.
If the award is to be based on law, the arbitrators shall comply with the law, universal principles of law, case law and doctrine. In this case, the arbitrators must be lawyers”.”
“Definition of arbitration agreement Art. 5.- The arbitration agreement is the written agreement by virtue of which the parties decide to submit to arbitration all or certain disputes that have arisen or may arise between them in respect of a specific legal relationship, whether contractual or non-contractual.
The arbitration agreement must be in writing and, if it refers to a legal transaction to which the agreement is not incorporated in its text, it must be recorded in a document stating the names of the parties and the unequivocal determination of the legal transaction to which it refers. In other cases, i.e., arbitration agreements on civil indemnities for crimes or quasi-delicts, the arbitration agreement must refer to the facts on which the arbitration will be based.
The nullity of a contract shall not affect the validity of the arbitration agreement.
Notwithstanding the pendency of a lawsuit before the ordinary courts in a matter subject to settlement, the parties may resort to arbitration, in which case they shall jointly request the competent judge to dismiss the case, attaching to the request a copy of the arbitration agreement and, if an appeal is pending, they must also withdraw from it”.
“Article 9 - The arbitrators may issue precautionary measures, in accordance with the rules of the Code of Civil Procedure or those deemed necessary in each case, to secure the assets involved in the proceedings or to guarantee the outcome thereof. The arbitrators may require a guarantee from the party requesting the measure, for the purpose of covering the payment of the cost of such measure and of the indemnity for damages to the opposing party, if the claim is declared unfounded in the award.
The party against whom the precautionary measure is ordered may request its suspension, if he provides sufficient security before the court.
For the enforcement of the interim measures, the arbitrators, provided that the parties so stipulate in the arbitration agreement, shall request the assistance of the necessary public, judicial, police and administrative officials without having to resort to any ordinary judge of the place where the assets are located or where it is necessary to adopt the measures.
