Ex aequo et bono
From Wikipedia, the free encyclopedia
Ex aequo et bono (Latin for "according to the right and good") is 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 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.[1] This rule is also expressed in many national and subnational arbitration laws, for example s. 22 of the Commercial Arbitration Act 1984 (NSW).
Article 38 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. The ICJ has never decided such a case to date (2007).
On the other hand, the constituent treaty of the Eritrea-Ethiopia Claims Commission explicitly forbids this body to interpret ex aequo et bono. That means that this judicial body can rely exceptionally on the application of the general principles of law, like the principle of humanity or the principle of proportionality, only if there is an established legal font that derives explicitly these principles. Otherwise, the Court must reach a decision as if the principle is not existent.
