Choosing the most favorable venue: Forum shopping, shopping forums, and legal pluralism in Ecuador

Abstract

This article is based on an extensive literature review and the findings obtained after three trips to Ecuador, during which interviews and informal conversations were held with members of Indigenous communities, communal leaders, national judges, prosecutors, academics and practitioners. It uses the concepts of “forum shopping” and “shopping forums,” showing how these phenomena are present in both types of legal systems in Ecuador: Indigenous legal systems and the ordinary legal system. The examples provided by respondents or studied within existing legal doctrine are shared first, followed by a discussion of the opportunities and challenges the choice of forums and disputants may experience in terms of access to justice. The article also examines the ne bis in idem principle, which has been implemented to control or reduce forum shopping and shopping forums. According to this principle an individual who has faced trial in one system should not be prosecuted again in the other system. If well controlled and carefully analysed on a case-by-case basis, forum shopping and shopping forum could be beneficial to individuals and communities, fostering access to justice and the protection of human rights, without disrespecting the autonomy of communities. Conversely, if poorly controlled or badly regulated, forum shopping and shopping forum could irreparably affect justice, harm individual rights or create impunity, leaving victims or the less powerful members of communities unprotected.