PRIDE AND PREJUDICE - UNDER THE ECUADORIAN LAW PERSPECTIVE
By Stalin Oviedo
Thank you so much for talking with us today Dr. Oviedo. Would you mind telling us a little more about yourself?
Dr. Stalin Oviedo: Hello, and thank you for having me. In respect to the first question, my name is Doctor Stalin Oviedo Ramirez and I am from Quito with heritage from the province of Chimborazo and the province of Imbabura. In my postgraduate career I have completed my master’s as well as other certificates, both in Ecuador and abroad. I specialize in litigation and legal advice with a focus on criminal law in the area of gender violence. My team and I have had an office in Quito for over 20 years providing legal services to all natural and legal persons.
There is a need for legal advice for foreigners who come to Ecuador with the desire to invest. What would be your recommendation to our readers in respect to this?
Dr. Stalin Oviedo: For somebody who wants to come to Ecuador to live, start a business, or just vacation, the most important thing will be to know what the law says and how it is implemented. A trusted legal advisor who is up to date with all current laws will be the most important facet when a foreigner is looking to make Ecuador their home. It’s important to remember that foreigners and nationals are held to the same law in Ecuador and whatever act, good or bad, will be accounted for. Within the territory of Ecuador there are laws that must be followed by everyone and the correct legal counsel will ensure that you are in compliance with those laws.
Doctor Oviedo, can you explain a little about the nature of civil obligations in Ecuador?
Dr. Stalin Oviedo: In Ecuador there is Civil Law, also known as the Civil Code, which regulates the obligations that arise from contracts. By virtue of these obligations, when signing a contract in Ecuador, one is also submitting to Ecuadorian laws. On the other hand, when a contract is signed and becomes law for the parties involved it is possible that the contract will be viable in the jurisdiction of the United States, as long as it is stated in the contract that this jurisdiction exists. For example, if a contract is signed in the City of Manta between a foreigner and an Ecuadorian, and a conflict arises between the parties, the case could be brought forth in New York. In this case I would suggest considering the size and type of business as well as seeking the help of a head lawyer who can provide you with objective, honest, and ethical legal help. In another example, if someone buys an apartment in the City of Bahía de Caráquez it would not be possible to submit a case in the jurisdiction of the United States. But, if the purchase was completed through an investment contract it could be channeled through the United States.The most important thing to remember when signing any contract in accordance with Ecuadorian laws and another country is that everything should be defined and clearly stated in the contract. In the case of an apartment for example, information such as apartment 8A, parking space 20, building 8 of the Mar Abierto building in Manta with ‘x’ amount of square meters, should be included in the contract.
As with an investment contract there are other things to consider. In an investment contract it must be stated what the investment will be used for, who is giving and receiving the investment, who is using the money, what the approved project is, background of the investment profile, and type of project to be invested such as real estate, business, stock market, etc. The contract must include all the delimitations to avoid any major problems in the future. When preparing a contract in Ecuador it is necessary to have it prepared by a trusted lawyer and have it approved by all parties. It is not feasible in Ecuador nor is it recommended that business be done overnight. Business should always be well verified. There is a legal saying that states, “To be free you have to be a slave to the law,” and this is no less true in Ecuador.
Based on what you have been telling us, can you illustrate the difference between the judicial system in the United States and the Ecuadorian legal system?
Dr. Stalin Oviedo: The procedural system of the United States is the so-called Common Law that is based on custom and ours is the Civil Law that is based on a legal code. Our legislation has leaned towards coinciding with the United States, or Common Law, since the year 2008 with the Constitution of Ecuador. This is not to say that they are the same thing, but that the system has similarities with that known as Common Law. This Common Law system, in my opinion, is headed towards being universal. I think that it is the system that reaches almost a quasi-perfect justice. Civil Law, on the other hand, was erected under a procedural system and positivist legal system that is based on Roman and Napoleonic law. In regards to this, and in reference to the 2008 Constitution of Ecuador, Organic Criminal Code of Processes from May 2016, and the Organic Integral Criminal Code of August 2014, judicial processes have become more expeditious, less tortuous, and more similar to the hearing system of the United States and Anglo-Saxon system. I insist once again, that even with this system, one must seek sound legal advice when involved with any legal matters. Even though state lawyers may not provide the highest representation, if a foreigner comes to Ecuador and finds themselves in an unfortunate situation they are entitled to a state lawyer if they cannot afford one. In this situation a state lawyer would be able to provide basic advice and guide one to avoid future problems.
With that, I hope I have been able to answer some of your questions regarding the doubts you may have in the legal system. Many will say, “bad news is the first to arrive and the easiest thing to sell,” but that is not the full picture in Ecuador. Our country has a good legal system, a good body of laws, and a procedural system that really works. We may not have the speed and perfection of Anglo-Saxon countries but we do work to ensure that our rights are kept.