Fast-Tracking the UAE-Ecuador BIT: Executive Decrees, Constitutional Limits, and Democratic Resistance to ISDS

Introduction: a treaty everybody is aware of is unconstitutional

Ecuador is as soon as once more on the centre of worldwide debates on investor–State dispute settlement (ISDS). In December 2025, President Noboa signed a Bilateral Funding Treaty (BIT) with the United Arab Emirates (UAE) that re‑introduces ISDS right into a authorized order which, since 2008, has constitutionally prohibited the State from ceding “sovereign jurisdiction” to worldwide arbitration in disputes with personal international events (Article 422).

What makes this BIT outstanding is how it’s being pressured by means of regardless of clear constitutional textual content and two current referenda rejecting ISDS. By way of govt decrees, procedural shortcuts, and deliberate sidelining of constitutional safeguards, the Noboa administration and the Constitutional Court docket are appearing in full information that ISDS treaties are unconstitutional below Article 422 and that voters have twice refused to authorise a change to that rule. The UAE-Ecuador BIT dangers turning into the precedent that normalises routing ISDS round constitutional and democratic safeguards, thereby paving the way in which for different agreements, together with the Canada-Ecuador Free Commerce Settlement (FTA).

 Article 422 and the favored mandate in opposition to ISDS

Article 422 of Ecuador’s 2008 Structure was drafted to stop repetition of Ecuador’s expensive expertise with funding arbitration. By 2008, Ecuador was topic to at the very least 13 ISDS circumstances. In Occidental v. Ecuador, for example, a tribunal awarded the investor $ 2.3 billion—an quantity equal to roughly 59% of Ecuador’s training finances and 135% of the well being finances that 12 months—after Ecuador terminated an oil concession for an undisclosed switch of rights.

Article 422 has held up politically. In April 2024, President Noboa sought to reopen the query by means of a safety‑framed referendum. Amongst questions on legal and safety coverage, there was a proposal to amend the clause and permit worldwide arbitration: 65% of voters rejected it. In November 2025, in one other referendum, 62% of voters rejected a constituent meeting proposal broadly understood as a path to dismantling Article 422 in addition to different constitutional protections.

The sequence issues: the federal government sought express authority to amend Article 422 and failed; then sought to rewrite the Structure altogether and failed. Solely after these defeats did it flip to fast-tracking a BIT with ISDS by means of govt and judicial maneuvers.

Figuring out it’s unconstitutional: the chief’s personal admissions

The Noboa administration’s conduct demonstrates it understands treaties with ISDS are unconstitutional below present legislation. First, by requesting the April 2024 referendum to amend Article 422, the President acknowledged that the present textual content blocks ISDS, i.e., “Que el texto del artwork. 422 de la Constitución es un obstáculo a la inversión extranjera porque impide ofrecer a los inversionistas un entorno de seguridad jurídica como si lo hacen otros países que mantienen tratados bilaterales de protección de inversiones y reglas de sujeción a los arbitrajes internacionales.” (“That the textual content of Article 422 of the Structure is an impediment to international funding as a result of it prevents traders from being supplied an surroundings of authorized certainty, as is the case in different international locations which have bilateral funding safety treaties and guidelines topic to worldwide arbitration.”) The justification—that present wording prevents “authorized certainty” for traders—rests on the premise that ISDS isn’t permitted. There can be no have to amend Article 422 if ISDS treaties had been already constitutional.

Second, Ecuador concluded an FTA with Canada together with ISDS, however it stays unsigned and unratified. It seems that each side are ready for Ecuador to resolve whether or not ISDS might be constitutionally reintroduced. The failed 2024 and 2025 referenda had been makes an attempt to create that home authorisation.

It seems, subsequently, that the December 2025 UAE-Ecuador BIT is a part of a wider technique: as soon as one ISDS treaty survives constitutional scrutiny, it serves as precedent—political and jurisprudential—for validating others.

The fast-track gambit: utilizing Article 419 to sidestep Article 422

On 31 December 2025, through the vacation interval, President Noboa submitted the UAE-Ecuador BIT to the Constitutional Court docket below an abbreviated process, giving it eight days to determine whether or not the treaty requires Nationwide Meeting approval below Article 419. Article 419 of Ecuador’s Structure requires prior legislative approval for treaties that, amongst different grounds, switch sovereign powers to worldwide organisations, impression constitutional rights and ensures, or create worldwide monetary obligations for the State. The manager’s request argues that the BIT falls outdoors these Article 419 classes and subsequently could also be ratified straight by the President with out Meeting involvement. Curiously, the submission frames the query as legislative approval solely, with out asking the Court docket to evaluate Article 422 compatibility—the availability that explicitly prohibits ceding sovereign jurisdiction to worldwide arbitration. The manager seeks judicial authorisation to bypass the legislature whereas sidelining the constitutional prohibition on ISDS.

Civil society organisations, Indigenous teams, teachers, and people inundated the Court docket with amicus curiae submissions arguing that the BIT clearly triggers Article 419 (together with switch of sovereign powers, impression on constitutional rights and ensures, and creation of worldwide monetary obligations) and is substantively incompatible with Article 422 and each referenda outcomes. The wave of amicus submissions and public mobilisation—responding to what many seen as an try and fast-track ratification whereas residents had been on vacation—seems to have derailed the chief’s technique. The Court docket has not issued a call throughout the eight-day window, suggesting the try and safe quiet approval failed within the face of sustained civil society opposition.

Moderately than deal with these submissions as affirmation that complete constitutional scrutiny is required, the Court docket’s subsequent actions recommend an effort to handle (or keep away from), quite than confront, the core challenge.

The Court docket’s response: narrowing the query, shaping the document

The case was assigned to Decide Claudia Salgado, who was appointed below Noboa final 12 months. Following Ecuadorian Constitutional Court docket process for Article 419 evaluations, the presiding decide drafts the opinion, which the complete nine-member Court docket then both affirms or rejects. Whereas Salgado has publicly expressed doubts in regards to the constitutionality of ISDS in treaties below Ecuador’s present Structure, she has taken steps sustaining the fiction that the BIT is primarily a procedural query below Article 419(7): requiring prior approval by the Nationwide Meeting if the treaty “attributes powers of a home authorized nature to worldwide or supranational organizations”.

On 15 January 2026, the Court docket requested from the Legal professional Basic’s workplace a whole checklist of all BIT-based circumstances and contract-based arbitrations involving the State—together with private circumstances, with “specific indication, in every case, … whether or not or not the worldwide duty of the State was declared”. The specific give attention to whether or not Ecuador’s “worldwide duty” was declared in arbitration circumstances indicators the Court docket’s probably technique: to argue that ISDS adjudicates breaches of worldwide legislation (treaty violations establishing State duty), a competence home courts by no means possessed. This framing would enable the Court docket to conclude through Article 419(7) that home courts lack competence to adjudicate breaches of worldwide legislation—an influence reserved to worldwide organisations. Since Ecuadorian courts by no means possessed this authority, permitting arbitral tribunals to find out treaty violations doesn’t “switch” competence; it merely assigns what was by no means domestically held. Underneath this logic, there is no such thing as a switch requiring legislative approval.

The circularity is stark: a provision designed to stop cession of home powers is reinterpreted to exclude something deemed “worldwide”, rendering Article 419(7) a lifeless letter—exactly what it was meant to stop. Absent ISDS, investor-State disputes can be heard in Ecuadorian courts making use of Ecuadorian legislation; ISDS transfers that competence to worldwide arbitration. But the Court docket seems to be setting up an argument that no switch will happen as a result of investor-State legislation is “inherently worldwide”. By defining away the home origin of competence, the Court docket transforms a constitutional constraint right into a tautology: Article 419(7) can by no means apply as a result of delegated competence is all the time recharacterised as “worldwide”.

Government Decree 294: altering the treaty mid-review

Within the meantime, textual errors within the BIT uncovered the technique’s fragility. A public tweet famous that the UAE is misnamed as “United Arab States,” which isn’t a State, whereas an amicus submission identified that Article 25(1) of the treaty references a non‑existent paragraph 3. On 26 January 2026, the Court docket gave the President three days to supply the complete English textual content—elevating the curious query of why Ecuador’s highest courtroom would wish a non-official language model to evaluate home authorized compliance.

Moderately than submit the English authentic, President Noboa issued Government Decree No. 294 on 28 January 2026, whereas overseas, authorising Ecuador’s ambassador to signal an “errata sheet” correcting “formal and translation errors”. The following day, the chief requested a 15‑working‑day extension;  the Court docket granted the request on 30 January 2026.  The federal government later admitted in media that the English-language model additionally contained errors—not merely translation issues—underscoring the haste with which the treaty was negotiated and signed, and the velocity with which the administration hoped to hurry it to ratification.

What’s outstanding right here isn’t treaty correction, however the cascade of procedural irregularities. The BIT was rushed to signature with out authorized vetting, submitted on 31 December 2025 below an expedited process requesting an eight-day determination on whether or not Article 419 legislative approval applies (a call nonetheless pending), and was slated for revision mid-review through unilateral govt decree. Textual defects in each the Spanish and English variations uncovered the haste with which the treaty was negotiated and signed. The deeper downside, nevertheless, is what this chaos obscures: the substantive unconstitutionality at its core. Whereas managing textual errors, the chief and Court docket ignore that ISDS provisions are unlawful below Article 422 and opposed by two current referenda. By attending to orthography whereas sidestepping constitutional prohibition, each branches look like privileging type over substance.

Why this BIT, and why now?

The insistence on this BIT, and notably the inclusion of ISDS provisions, is troublesome to elucidate in purely authorized or financial phrases. As an example, Canadian funding really tripled within the 5 years after the 1997 funding treaty with Canada was terminated in 2017. Furthermore, Ecuador has negotiated and signed new agreements with the European Union and South Korea, and ratified ones with the European Free Commerce Affiliation and China with out ISDS, demonstrating that such mechanisms aren’t mandatory to draw international funding or safe treaties. But the strategic objective of validating ISDS within the UAE BIT turns into clear when seen as precedent: as soon as the Court docket approves one ISDS treaty by means of slim procedural framing, others, just like the pending Canada-Ecuador FTA—which incorporates ISDS however stays unsigned—turns into trivially simple to ratify utilizing the identical logic.

The UAE BIT’s construction confirms this intent. First, the BIT extends ISDS protection to extractive sectors the place conflicts with Indigenous rights and environmental safety are most acute. However the core illegality isn’t the absence of investor obligations—although the treaty comprises none—it’s ISDS itself, which Article 422 prohibits no matter what ancillary obligations any treaty may comprise. Second, its broad asset-based definition of “funding” is adopted by an illustrative checklist that seems to (erroneously) cowl Emirati exploration and exploitation of Ecuador’s pure sources, however not comparable Ecuadorian investments within the UAE. This asymmetry is placing: why would Ecuador settle for such imbalance, and why would the UAE negotiate a carve-out by means of what’s merely an illustrative checklist, rendering it meaningless?

Third, the timing is revealing. On 28 January 2026—the identical day Government Decree 294 authorised corrections to the UAE BIT—Noboa submitted a proposal to the Meeting to reform the Mining Regulation, together with the elimination of the environmental license requirement for mining initiatives and its substitute with a weaker “environmental authorisation”. Environmental licenses have been the first instrument by means of which courts and communities have enforced constitutional rights, particularly the collective proper recognised in Article 57 of the Structure, which ensures Indigenous peoples free, prior, and knowledgeable consent over extractive initiatives on their lands and protects the rights of nature. Eliminating them whereas locking in ISDS provisions that penalise future re-regulation represents an built-in technique. The federal government deregulates domestically to strip communities of the instruments for implementing constitutional rights, then makes use of worldwide legislation and ISDS to make any potential reversal financially ruinous.

Conclusion: constitutional evasion as funding coverage

The UAE-Ecuador BIT exams Ecuador’s constitutional integrity. The manager is aware of Article 422 bars ISDS; voters have twice refused authorisation. But the Constitutional Court docket narrows evaluation to Article 419, accommodates treaty revisions mid-proceedings, and constructs doctrinal exits to reconcile ISDS with a provision designed to ban it. If endorsed, this technique demonstrates that constitutional prohibitions and well-liked mandates might be neutralised by means of procedural framing and definitional manipulation quite than democratic debate.

The choice path stays obtainable. Recognising the UAE-Ecuador BIT as requiring Meeting approval below Article 419 and incompatible with Article 422—interpreted in gentle of the 2008 Structure, the 2024/2025 referenda, and the Court docket’s personal precedent within the Ecuador-Costa Rica FTA evaluation—would reaffirm that treaty-making energy is constrained by constitutional textual content and well-liked will. It will not foreclose future funding coverage debate however would insist that any departure from Article 422 happen by means of clear, democratically accountable processes, quite than executive-judicial workarounds.

At stake is whether or not Article 422 and the referenda defending it stay significant expressions of sovereign selection—or whether or not the UAE-Ecuador BIT turns into the instrument by means of which that selection is quietly reversed.