Gathering Evidence in Aid of Foreign Litigation Guide |
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Ecuador |
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(Latin America/Caribbean)
Firm
Pérez Bustamante & Ponce
Contributors
Rodrigo Jijón-Letort |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, Ecuador is a signatory of many international conventions that facilitate the transmission and execution of letters of request or letters rogatory to obtain evidence or to perform other judicial acts. Additionally, Ecuador permits gathering evidence in aid of foreign litigation even if the country requesting is not a part of an international instrument ratified by Ecuador. This, through the application of courtesy and mutual legal assistance in the application of international custom. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Ecuador is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). However, Ecuador is part of: the Bustamante Code, Inter-American Convention on Letters Rogatory, Additional Protocol to the Inter-American Convention on Letters Rogatory, Inter-American Convention on the Taking of Evidence Abroad, the Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad, Vienna Convention on Consular Relations, Inter-American Convention on Execution of preventive Measures, and, the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Additionally, Article 144 of the Organic Code of the Judicial System (“Código Orgánico de la Función Judicial”) establishes the obligation of the judiciary to comply with letters rogatory and the performance of procedural acts of mere formal nature such as summonses. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Letters rogatory may be transmitted to the Ministry of International Relations, consular agents or the National Court of Justice. The central authority appointed by Ecuador to receive the Letters rogatory in the Inter-American Convention on Letters Rogatory is the Ministry of International Relations (“Dirección de Asistencia Judicial Internacional y Movilidad Humana, del Ministerio de Relaciones Exteriores y Movilidad Humana”). |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | As was previously mentioned, Article 144 of the Organic Code of the Judicial System (“Código Orgánico de la Función Judicial”) establishes the obligation of the judiciary to comply with Letters Rogatory. The phrasing of the article could suggest a limit to what type of request could be done: “Acts of mere formality”. However, according to international conventions, almost every type of evidence can be sought: service of process, summonses, subpoenas, taking evidence and obtaining information. The only limitation is if the procedure requested is contrary to any legal provision or against the public policy of Ecuador. Since international conventions are mandatory and rank higher than local laws, Article 144 could not be understood as a limit. |
| Who bears the burden of showing whether any privileges apply? | The party seeking the not execution of the evidence must prove the existence of any privilege. The main privileges in Ecuador are professional secrecy for medical doctors and lawyers. As for documents in the hands of the state, the declaration of reserve, secrecy or privilege, must be provided by a legal mandate. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | There are no rules on that matter. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, the Organic Code of General Procedures establishes, in Article 167, that even consular members can receive depositions conducted remotely. Additionally, Article 116 establishes the possibility that any form of evidence can be done with the aid of technology. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | There are no “blocking statutes” that limit the extent to which residents can give evidence in a foreign court, as long as due process is respected. In the case of certain public officials, the Sovereign Immunity Doctrine or reserve can apply. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, there aren´t any procedures that must be followed for that matter. However, confidentiality cannot be violated with the testimony. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | If an Arbitral Tribunal needs the aid of the Ecuadorian government and decides to send a letter rogatory, there aren´t any material differences. However, preventive measures can be enforced directly, without the need for a letter rogatory. Similarly, any decision on how to practice the evidence can be enforced directly (for example, following the IBA Rules). |
Gathering Evidence in Aid of Foreign Litigation Guide
Ecuador
(Latin America/Caribbean) Firm Pérez Bustamante & PonceContributors Rodrigo Jijón-Letort
Updated 21 Mar 2022Yes, Ecuador is a signatory of many international conventions that facilitate the transmission and execution of letters of request or letters rogatory to obtain evidence or to perform other judicial acts. Additionally, Ecuador permits gathering evidence in aid of foreign litigation even if the country requesting is not a part of an international instrument ratified by Ecuador. This, through the application of courtesy and mutual legal assistance in the application of international custom.
Ecuador is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). However, Ecuador is part of: the Bustamante Code, Inter-American Convention on Letters Rogatory, Additional Protocol to the Inter-American Convention on Letters Rogatory, Inter-American Convention on the Taking of Evidence Abroad, the Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad, Vienna Convention on Consular Relations, Inter-American Convention on Execution of preventive Measures, and, the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents.
Additionally, Article 144 of the Organic Code of the Judicial System (“Código Orgánico de la Función Judicial”) establishes the obligation of the judiciary to comply with letters rogatory and the performance of procedural acts of mere formal nature such as summonses.
Letters rogatory may be transmitted to the Ministry of International Relations, consular agents or the National Court of Justice. The central authority appointed by Ecuador to receive the Letters rogatory in the Inter-American Convention on Letters Rogatory is the Ministry of International Relations (“Dirección de Asistencia Judicial Internacional y Movilidad Humana, del Ministerio de Relaciones Exteriores y Movilidad Humana”).
As was previously mentioned, Article 144 of the Organic Code of the Judicial System (“Código Orgánico de la Función Judicial”) establishes the obligation of the judiciary to comply with Letters Rogatory. The phrasing of the article could suggest a limit to what type of request could be done: “Acts of mere formality”. However, according to international conventions, almost every type of evidence can be sought: service of process, summonses, subpoenas, taking evidence and obtaining information. The only limitation is if the procedure requested is contrary to any legal provision or against the public policy of Ecuador.
Since international conventions are mandatory and rank higher than local laws, Article 144 could not be understood as a limit.
The party seeking the not execution of the evidence must prove the existence of any privilege. The main privileges in Ecuador are professional secrecy for medical doctors and lawyers. As for documents in the hands of the state, the declaration of reserve, secrecy or privilege, must be provided by a legal mandate.
There are no rules on that matter.
Yes, the Organic Code of General Procedures establishes, in Article 167, that even consular members can receive depositions conducted remotely. Additionally, Article 116 establishes the possibility that any form of evidence can be done with the aid of technology.
There are no “blocking statutes” that limit the extent to which residents can give evidence in a foreign court, as long as due process is respected. In the case of certain public officials, the Sovereign Immunity Doctrine or reserve can apply.
Yes, there aren´t any procedures that must be followed for that matter. However, confidentiality cannot be violated with the testimony.
If an Arbitral Tribunal needs the aid of the Ecuadorian government and decides to send a letter rogatory, there aren´t any material differences. However, preventive measures can be enforced directly, without the need for a letter rogatory. Similarly, any decision on how to practice the evidence can be enforced directly (for example, following the IBA Rules).