Journal of Business and entrepreneurial
January - March Vol. 7 - 1 - 2023
e-ISSN: 2576-0971
Receipt: 22 May 2022
Approval: 11 November 2022
Page 56-71
The arbitration clause in administrative
La claúsula arbitral en los procesos administrativos
Nicolasa Genoveva Panchana Suárez
Karen Vanessa Diaz Panchana
Sandra Canalias Lamas
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.
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
*Lawyer of the Courts of the Republic of Ecuador. Magister.,
*Lawyer of the Courts of the Republic of Ecuador. Magister.,
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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.
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
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,
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
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
[...] 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
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
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