DICTAMEN 2-18-IC: Action for interpretation of Article 422 of the Constitution of the Republic of Ecuador.

On January 14, 2022, the Constitutional Court heard an action of interpretation signed with the No. 2-18-IC, filed by the National Assembly, in its capacity as legal standing, requesting clarification of the scope of article 422 of the Constitution of the Republic of Ecuador. [1]

The request for interpretation is based on the express prohibition for the Ecuadorian State to enter into international treaties and instruments in which it cedes jurisdiction to international arbitration in contractual or commercial matters, a provision contained in the first paragraph of Article 422. [2]

The Constitutional Court, being the highest instance of constitutional interpretation by express mandate of the Constitution and, in exercise of the powers provided for in the Organic Law of Jurisdictional Guarantees and Constitutional Control, has the power to give meaning to provisions of the organic part of the Constitution, in the abstract and based on the meaning of the normative text without prejudice to other interpretations. [3]

Therefore, the criterion of the National Assembly states the following: “The constitutional provision refers only to contractual and commercial controversies derived from international instruments; however, not all controversies of Treaties or International Instruments deal with contractual or commercial issues, such is the case of Investment Protection Treaties or Bilateral Investment Agreements”.[4]

The Constitutional Court, for its part, ruled as follows:

• The Constitution, in the Article under exegesis, expressly establishes the prohibition of entering into international treaties or agreements in which the Ecuadorian State cedes sovereign jurisdiction to international arbitration instances of those disputes arising from contractual or commercial matters between the State and private natural or legal persons.

Following the criteria of the National Assembly, the investment agreements do not fit in the literal prohibition of Art. 422, since: Treaties for the Protection of

[1] Ecuador, Art. 155 LOGJCC, Registro Oficial Suplemento Nro. 52, October 22, 2009.

[2] Ecuador, Art. 422 Constitution of the Republic of Ecuador.

[3] Ecuador, Art. 154 LOGJCC, Registro Oficial Suplemento Nro. 52, October 22, 2009.

[4] Ecuador, Constitutional Court, Dictamen Nro. 2-18-IC, paras. 11, 12.

[1] Ecuador, Art. 155 LOGJCC, Registro Oficial Suplemento Nro. 52, October 22, 2009.

[1] Ecuador, Art. 422 Constitution of the Republic of Ecuador.

[1] Ecuador, Art. 154 LOGJCC, Registro Oficial Suplemento Nro. 52, October 22, 2009.

[1] Ecuador, Constitutional Court, Opinion Nr. 2-18-IC, paras. 11, 12.

• Investments guarantee legal certainty for investors and promote foreign direct investment, “by creating a stable and favorable legal environment for investment, moving away from the regulation of purely commercial or contractual aspects.”

• However, from the analysis made by the Plenary of the National Assembly, the Constitutional Court does not identify that the plaintiff entity is requesting a normative interpretation in the abstract as such, since it has not been requested to determine the meaning of the constitutional provision, but rather to analyze whether or not a specific and particular assumption fits within the prohibition set forth in the normative prescription, therefore, the action of constitutional interpretation is being distorted, since the request does not seek that this Court establish the scope of a constitutional provision, but rather that the Constitutional Court establish whether Article 422 of the Constitution is applicable to a particular case, an aspect that is incompatible with the action of interpretation. [1]

The Constitutional Court rejected by unanimous vote the request for interpretation requested by the Plenary of the National Assembly, claiming that the analysis was incompatible with the requested action.

[1] Ecuador, Constitutional Court, Opinion Nr. 2-18-IC, paras. 38, 39.

Nicolas C. Maldonado Garcés