[ad_1]
Eduardo Carmigniani
Guayaquil, Ecuador
The bill "attracting investment" (which is still in the knowledge of the leader when I write), proposes, as a mechanism for securing investors, domestic or foreign, who are in conflict with the state, for their "investments or contracts" of more than ten million dollars, be solved by "regional arbitration in law", for which two alternatives of clause d & # 39; 39, international arbitration are included, at the option of the investor (Article 37.2)
The proposal is very plausible
First: the state's consent to arbitration would now be inscribed in the law, without the need for a new declaration; For the arbitration agreement to be perfect, it would be sufficient for the investor to communicate his acceptance at any time, even before controversies arise (so that, if there is one, it would no longer be necessary to try to negotiate an arbitration clause, it would already exist)
Secondly: the arbitration offered may be accepted by any investor, local or foreign, even if it is n & # 39; 39; has no contract with the state; Thus, if, for example, there are disputes over expropriations (direct or indirect) that are not adequately compensated, the amount of compensation may be fixed by the arbitral tribunal.
The above does not violate the chauvinistic art. 422 of the Constitution of Montecristi, which prohibits the State from concluding "treaties or international instruments" in which it agrees to settle, by international arbitration, "contractual or commercial" disputes, since the offer of Arbitration would be done in a treaty (without adding that there are disputes with investors who are not even of a contractual or commercial nature).
There is only restriction in a specific case: the art. Under Article 190 of the Constitution, in order for disputes concerning "public procurement" to be submitted to arbitration, the Office of the Public Prosecutor must make favorable decisions. This authorization is not required for different subjects.
Again, very plausible.
Source link
