Las cláusulas arbitrales en el contrato especial emergente

Abstract

With the enactment of the Organic Law on Humanitarian Support to combat the health crisis caused by COVID-19, the Ecuadorian legal system incorporated the emergency contract as an exceptional figure within the labor regime, aimed at sustaining economic activity and employment in the face of extraordinary situations. However, despite its incorporation into the legal system, the emergency contract has limited regulatory development, especially in terms of the mechanisms for resolving disputes arising from its execution. The Organic Law on Humanitarian Support does not expressly establish the possibility or parameters for the incorporation of arbitration clauses, which creates uncertainty regarding the viability, scope, and effects of resorting to arbitration as an alternative means of conflict resolution. The purpose of this paper is to analyze the concept of the emergency contract regulated by the Organic Law on Humanitarian Support, as well as to examine the legal viability of incorporating arbitration clauses as dispute resolution mechanisms within the contractual framework. The first chapter will address the legal nature of emergent contracts in Ecuadorian law; the main principles of freedom of contract and autonomy of will; arbitration and its applicability in the context of atypical contracts. The second chapter will analyze the legal compatibility between the emerging contract and the incorporation of arbitration clauses based on doctrinal and regulatory studies, addressing the practical effects that such incorporation generates for the contracting parties, concluding with models adopted in other legal systems aimed at the valid incorporation of arbitration clauses in labor relations.