Ex aequo et bono
Encyclopedia
Ex aequo et bono is a phrase derived from Latin that is used as a legal term of art.
In the context of arbitration
, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand.
Article 38(2) of the Statute of the International Court of Justice
provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto. Through 2007, the ICJ has never decided such a case.
Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976) provides that the arbitrators shall consider only the applicable law, unless the arbitral agreement allows the arbitrators to consider ex aequo et bono, or amiable compositeur, instead. This rule is also expressed in many national and subnational arbitration laws, for example s. 22 of the Commercial Arbitration Act 1984 (NSW).
On the other hand, the constituent treaty of the Eritrea-Ethiopia Claims Commission explicitly forbids this body to interpret ex aequo et bono.
Technical terminology
Technical terminology is the specialized vocabulary of any field, not just technical fields. The same is true of the synonyms technical terms, terms of art, shop talk and words of art, which do not necessarily refer to technology or art...
In the context of arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand.
Article 38(2) of the Statute of the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto. Through 2007, the ICJ has never decided such a case.
Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976) provides that the arbitrators shall consider only the applicable law, unless the arbitral agreement allows the arbitrators to consider ex aequo et bono, or amiable compositeur, instead. This rule is also expressed in many national and subnational arbitration laws, for example s. 22 of the Commercial Arbitration Act 1984 (NSW).
On the other hand, the constituent treaty of the Eritrea-Ethiopia Claims Commission explicitly forbids this body to interpret ex aequo et bono.
Further reading
- John Bouvier, A law dictionary, Philadelphia, Childs & Peterson, 1858
- Josephine K. Mason, The Role of Ex Aequo et Bono in International Border Settlement: A Critique of the Sudanese Abyei Arbitration, Social Science Research Network, 2010; 20 Am. Rev. Int'l Arb. 519 (2009).
- Christoph Schreuer, `Decisions Ex Aequo et Bono under the ICSID Convention` (1996)