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The arbitration clause in administrative

proceedings

La claúsula arbitral en los procesos administrativos

Nicolasa Genoveva Panchana Suárez

Karen Vanessa Diaz Panchana

Sandra Canalias Lamas

ABSTRACT

In the review of research published in academic articles

(including doctoral or undergraduate theses) an extensive

bibliography is obtained covering concepts of

administrative processes, public administration and

Arbitration Agreement; this work defines the terms and

describes the phases or stages of the administrative

process. This article will serve as a tool for academic work

and, therefore, should be integrated into the programs

involved in educational tasks; here the text includes the

efforts of the authors to give the reader a tool to develop

a process of analysis and intellectual confrontation that

allows you to achieve better results in your work,

academic counseling, funding related to the knowledge of

the administrative procedures .

Keywords: Arbitration - Agreement - public

administration - procedures.

RESUMEN

En la revisión de investigaciones publicadas en artículos

académicos (incluidas tesis de doctorados o de grado) se

obtiene una bibliografía extensa que cubre conceptos de

procesos administrativos, administración Pública y

Convenio Arbitral; este trabajo define los términos y

* Lawyer of the Courts of the Republic of Ecuador. Magister. Doctor in

Jurisprudence. nicolasapanchana@hotmail.com, https://orcid.org/0000-0002-

8079-0641

*Lawyer of the Courts of the Republic of Ecuador. Magister.

karendiaz_1004@gmail.com, https://orcid.org/0000-0002-1162-229X

*Lawyer of the Courts of the Republic of Ecuador. Magister.

sandra_canalias@hotmail.com, https://orcid.org/0000-0001-5440-798X

e-ISSN: 2576-0971. January - March Vol. 7 - 1 - 2023 . http://journalbusinesses.com/index.php/revista

describe las fases o etapas del proceso administrativo. El

presente artículo servirá como herramienta de trabajo

académico y, por tanto, se deberá integrarlo en los

programas involucrados en tareas educativas; aquí el texto

incluye los esfuerzos de los autores para dar al lector una

herramienta para desarrollar un proceso de análisis y

confrontación intelectual que te permite lograr mejores

resultados en tu trabajo, asesoramiento académico,

financiación relacionada con el conocimiento de los

procedimientos administrativos.

Palabras clave: Arbitral – Convenio – administración

pública – procedimientos.

INTRODUCTION

Administrative acts are generally unilateral manifestations of the highest authorities of

the different entities of the public sector (Administration), within these wills we find the

Administrative Contracts whose legal regime is special and is regulated by the

Administrative Organic Code (COA), and in the Organic Law of the National Public

Procurement System, its regulations and the resolutions of the National Public

Procurement Service, when the different public procurement processes are carried out.

Since the current Constitution of Ecuador of 2008, we find the alternative means of

conflict resolution in its Article 190: It recognizes mediation and arbitration as

mechanisms to resolve conflicts in negotiable matters, within the administrative law gives

the possibility of submitting to arbitration in law, including those arising from public

procurement processes.

The existence of the Arbitration Agreement, in case of conflicts, could be submitted to

the designated arbitration centers, prior to initiating the different administrative

contentious actions to which the parties that subscribed the administrative contracts

believe they are assisted, with the purpose of providing a solution to the disagreements

or conflicts within the execution of a contract in a more timely and expeditious manner,

and on a voluntary basis.

The Arbitration Clause can be made in administrative procedures, so it is of great

importance to develop the conceptualization of the same. The procedures are conceived

from different angles and one of these is the competence angle, in reference to the

competences granted to an entity for the regulation of the administrative procedure,

considering the executive and judicial organ as the main ones with organizational

competences, and even the judicial power, which is granted the attribution to dictate

laws that regulate and guarantee the rights of the people before the administration.

(Alejos, 2019)

The public administration is also granted powers to regulate its exercise and to adjust it

to the normative principles of the organization. As for the judicial function, they are

provided with powers before and after the respective rules. As for the Arbitration

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Clause in relation to administrative proceedings, it is understood in the first place as the

agreement between the contractual parties to submit their differences to the decision

of an arbitrator, who will express his decision to be enforced by means of an arbitration

award.

Arbitration, then, becomes a possibility to settle a conflict with the voluntariness of the

parties, which is supported by the Constitution of the Republic of Ecuador as a legal

institution that allows the agreement on the resolution of conflicts through the

intervention of an arbitral tribunal. (Pulido, N., et al., 2021)according to:

Art. 190 CRE.- Arbitration, mediation and other alternative dispute resolution

procedures are recognized. These procedures shall be applied subject to the law, in

matters which by their nature may be settled. In public procurement, arbitration in law

shall be applicable, prior favorable pronouncement of the State Attorney General's

Office, in accordance with the conditions established by law. (Constitution of the

Republic of Ecuador, 2008).

Arbitration is a figure that is permitted and developed in the Arbitration and Mediation

Law, which establishes the obligation to submit the dispute to arbitration, which is

understood as an obligation to do, an obligation that links two elements, on the one

hand the subjective element, submitting the dispute to arbitration, and the objective

element, which is the obligation between the creditor and the debtor.

In that sense, this article aims to provide the legal community with a working tool for

understanding administrative process management practices, which has focused on

developing a comprehensive approach.

Administration and its process in general.

In order to address what an administrative process is, it is important to be clear that

administration by itself is a process that, with the correct use of its resources, achieves

a high quality operation of the social organism, which contributes to the achievement of

predetermined goals. Quality is achieved when the organization uses resources in an

efficient, rational, and planned manner (Cano Plata, 2017).

According to (Briones, W., et al.). : "the structure that an organization must have to

achieve efficiency starts from an organizational whole and its structure to ensure the

efficiency of all parties involved." (2019, p. 3; Castañedo, A., 2018). The use of both

internal and external resources is efficient if it achieves its mission by fulfilling its social,

technological, scientific, political, religious, cultural, sports and academic purposes.

In this sense, the administrative process will mean every moment in which the

management of the Administration is carried out, aimed at the fulfillment of the tasks

and the achievement of the established goals, making the best use of the resources. It is

worth mentioning the definition of administrative acts, "the declaration of will, judgment,

knowledge or desire made by the Administration in the exercise of an administrative

power other than the regulatory power" (García, E. & Fernández, 2001). (García, E. &

Fernández, T., 2020, p. 591).

According to (Cano Plata, 2017)an administrative process includes different stages or

phases that will allow the execution of the administrative practice and these are:

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• Planning: Objectives, programs and strategies should be planned, as well as

budgets and organizational diagnosis. The word "plan" together with the word

"strategy" which is the key to make institutional decisions based on the diagnosis

of the current situation. (Mero-Vélez, 2018).

• Organization: organization will be needed for the development of procedures,

determination of tasks, organizational structure and authority. (Mero-Velez,

2018).

• Management: Management directs, influences and motivates employees to

develop basic tasks and within the administrative process, "management focuses

attention on how to delegate authority and coordinate activities" (Hernandez &

Hernandez, 2019, p. 66). Thus, management will be indispensable for the exercise

of teamwork, communication, motivation, leadership, change and conflict

management.

• Control: With the control it will be possible to identify indicators of interest

and implement focus plans that allow decision making in order to protect the

organization. (Schmidt, Tennina, & Obiol, 2018).. And it can also be understood

as:

[...] is the set of preparatory acts concatenated according to a chronological and

functional order, to verify the existence of the public need to be satisfied and of

the facts that create it, as well as to hear the possible affected parties and

spokespersons of related interests, both public and private, especially the latter,

in order to shape the decision in the way that best harmonizes them with the

public purpose to be fulfilled. (Ortiz, 1981)

The administrative procedure from the legal point of view should be understood as:

A mechanism that allows the Administration to acquire information about the existence,

scope, nature and characteristics of the multiple interests that converge in the

configuration of a given situation in order to, in this way, be able to reach the decision

that best satisfies the public interest and that, at the same time, complies with the legal

system. (Loo Gutiérrez, 2017, p. 171).

Authors such as (Alonso, 2013, p. 166) who exposes, argues and proposes what is

necessary to innovate the fundamental administrative institutions: administrative

organization, administrative procedures, public function, administrative contracts and

regulatory strategies.

Addressing administrative law, which governs administrative processes; (Navarro

González, 2017) expresses that the Administrative Sanctioning Law has demanded that

the sanctioning act complies with high standards in terms of motivation, insofar as it will

impose the restriction or loss of rights as a consequence of the commission of an

administrative infraction; (Tirado) states that "the motivation of the act of initiation of

the sanctioning procedure has attracted little attention to the extent that its qualification,

as a procedural act, refers to the final act a good part of the questions that may be

raised" (2021, p. 175).

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On the other hand, administrative justice is a substantive and procedural concept, which

establishes that the activity of the public administration should be oriented to the

realization or satisfaction of specific public interests, with full respect for public rights

and interests; and seeks the resolution of disputes arising between it and the

administered (individuals), between two public entities, or between the State and a

smaller public entity. (Rojas, 2011)

Administrative Process Ecuador

Currently, administrative processes have acquired great value and are used as one of the

main tools to achieve the proper development of public administration with the aim of

increasing efficiency, effectiveness, quality of public services, but above all the correct

application of the rights enshrined in the Constitution, which begin with the right to

petition.

Article 173 of the Constitution of the Republic establishes that administrative acts may

be challenged administratively through an administrative proceeding and judicially

through an administrative litigation process:

Art. 173.- Administrative acts of any State authority may be challenged, both

administratively and before the corresponding bodies of the Judiciary. (Constitution of

the Republic of Ecuador, 2008)

Administrative claims, controversies that individuals may bring before public

administrations and the activity of the public administration for which a specific

procedure is not foreseen, will be substantiated in an administrative procedure. Thus,

Article 134 of the Organic Administrative Code establishes the general and

supplementary nature of the administrative procedure it regulates:

Article 134.- Proceedings. The rules contained in this Title apply to administrative

proceedings, special proceedings and proceedings for the provision of public

goods and services, insofar as they do not affect the special rules governing their

provision. They shall not apply to procedures derived from the control of public

resources. (Código Orgánico Administrativo, 2017)

(Núñez, 2019, p. 164) expresses that: "The administrative procedure of the COA

contemplates three stages: initiation, evidence, termination and execution; although in

some cases it is appropriate to carry out previous acts. These stages, with slight nuances,

coincide with those indicated by the doctrine for the first generation administrative

procedure."

In that sense, administrative procedures could be seen as a major problem for the State

seeking the best use of resources; it believes that integrating, articulating and using these

resources leads to improvement and positive change when done in the best possible

way. Therefore, being part of administrative processes can become a serious problem.

(Timaná, L., 2022)

Currently, when defining the word administration, it refers to the phenomenon of

constant changes and innovations that require the application and development of tools

to systematize and integrate administrative processes in order to effectively visualize