La procedencia de una acción de protección ante la existencia de una cláusula arbitral.

Abstract

This paper examines the admissibility of the protection action in the presence of an arbitration clause in cases of evident vulnerability, with the aim of safeguarding potentially violated rights, such as effective judicial protection in its various components, which are recognized in the Constitution of Ecuador. It analyzes the fundamental principles of arbitration and constitutional law, which indicate that this remedy can only be activated at a specific moment. Additionally, we establish how the Constitutional Court of Ecuador has ruled and issued jurisprudence regarding the intervention of constitutional justice as an appropriate means to protect fundamental rights over other matters. At the same time, it addresses the distinction between ordinary justice and constitutional justice, setting certain limitations on the ability to review arbitral cases in one but not the other. Likewise, the various characteristics of the jurisdictional guarantee of the protection action are explained, highlighting its capacity to safeguard these cases without the need to exhaust other remedies, as it is direct and effective. This paper focuses on clarifying these doubts and misunderstandings to demonstrate that the protection of fundamental rights in cases of individuals in vulnerable conditions should prevail over the autonomy of arbitration or the will of the parties when entering into a contract.