La cuantificación de la caución en el arbitraje.

Abstract

The bond, as established in article 31 of the Preliminary Title of the Ecuadorian Civil Code is "(...) any obligation that is contracted for the security of someone own or another's obligation. Bond, pledge and mortgage are types of surety”, in short, its a guarantee that is given in order to ensure the future fulfillment of an obligation, which in the case that will be analyzed in this thesis, is an obligation that is contained in a ruling or arbitration award. In arbitration proceedings, the Law provides for two situations in which a Court must quantify a bond as a guarantee, these being, when the party that has proposed an action for annulment against the arbitration award issued, expressly requests the suspension of its effects until said action is resolved by the President of the competent Provincial Court; and, when the party against whom a precautionary measure has been ordered requests its suspension. A priori, it is in many cases quite simple to determine the amount of the security requested; however, that quantification often brings with it problems when it comes to its determination, since, in the case of being insufficient, it would not have achieved one of its tasks, that is, to compensate the damage of the execution of an act that threatens an effective execution of an award and, on the other hand, in the case of being disproportionate, it would violate the legitimate right of a party to request the suspension of the effects, whether of an award or precautionary measure, consigning a rational guarantee.