Ex aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a Latin phrase that is used as a legal term of art. In the context of arbitration, it refers to the power of arbitrators to dispense with consideration of the law but consider solely what they consider to be fair and equitable in the case at hand. However, a decision ex aequo et bono is distinguished from a decision on the basis of equity (equity intra legem), "Whereas an authorisation to decide a question ex aequo et bono is an authorisation to decide without deference to the rules of law, an authorisation to decide on a basis of equity does not dispense the judge from giving a decision based upon law, even though the law be modified".[1]
Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the court may decide cases ex aequo et bono only if the parties agree.[2] In 1984, the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and the US.[3] This was not, however, in relation to Art. 38(2) which has never been invoked by the parties in a dispute before the ICJ. It was an example of referring to 'equity' as a general principle of law under Art. 38 (1) (c).
Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976)[4] 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.[5] This rule is also expressed in many national and subnational arbitration laws such as section 22 of the Commercial Arbitration Act 1984 (NSW). It is also embodied under Section 28(2) of the Indian arbitration law - Arbitration & Conciliation Act, 1996 ("The arbitral tribunal shall decide ex aequo et bono or as amicable compositeur only if the parties have expressly authorised it to do so")
On the other hand, the constituent treaty of the Eritrea–Ethiopia Claims Commission explicitly forbids the body from interpreting ex aequo et bono.
Ex aequo
The phrase ex aequo (without et bono) is used to mean "equally placed", often in the context of competition winners.[6]
The International Court of Justice, also called the World Court, is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations (UN), and is located in The Hague, Netherlands.
The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization located in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides services of arbitral tribunal to resolve disputes that arise out of international agreements between member states, international organizations or private parties. The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade. The PCA is constituted through two separate multilateral conventions with a combined membership of 122 states. It is not a United Nations agency, but a United Nations observer.
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention, was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959. The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. Widely considered the foundational instrument for international arbitration, it applies to arbitrations that are not considered as domestic awards in the state where recognition and enforcement is sought.
International arbitration is arbitration between companies or individuals in different states, usually by including a provision for future disputes in a contract.
The Willem C. Vis International Commercial Arbitration Moot or Vis Moot is an international moot competition. Since 1994, it has been held annually in Vienna, Austria, attracting more than 300 law schools from all around the world and spurring the creation of more than 20 pre-moots each year before the actual rounds are held in Vienna. It is the largest arbitration moot competition, and second-largest moot overall, in the world; considered a grand slam or major moot. A sister moot, known as the Willem C. Vis (East) Moot, is held in Hong Kong just before the rounds in Vienna. It was established in 2003 and attracts around 150 teams every year, making it the second largest commercial arbitration moot and also a grand slam moot. It uses the same moot problem as the Vis Moot, as does the various pre-moot friendlies.
Lex mercatoria, often referred to as "the Law Merchant" in English, is the body of commercial law used by merchants throughout Europe during the medieval period. It evolved similar to English common law as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It developed into an integrated body of law that was voluntarily produced, adjudicated and enforced on a voluntary basis, alleviating the friction stemming from the diverse backgrounds and local traditions of the participants. Due to the international background local state law was not always applicable and the merchant law provided a leveled framework to conduct transactions reducing the preliminary of a trusted second party. It emphasized contractual freedom and inalienability of property, while shunning legal technicalities and deciding cases ex aequo et bono. With lex mercatoria professional merchants revitalized the almost nonexistent commercial activities in Europe, which had plummeted after the fall of the Roman Empire.
Arbitration is a formal method of alternative dispute resolution (ADR) involving a neutral third party who makes a binding decision. The dispute will be decided by one or more persons, which renders the 'arbitration award'. An arbitration decision or award is legally binding on both sides and enforceable in the courts, unless all parties stipulate that the arbitration process and decision are non-binding.
An arbitral tribunal or arbitration tribunal, also arbitration commission, arbitration committee or arbitration council is a panel of unbiased adjudicators which is convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include a chairperson or an umpire. Members selected to serve on an arbitration panel are typically professionals with expertise in both law and in friendly dispute resolution (mediation). Some scholars have suggested that the ideal composition of an arbitration commission should include at least also one professional in the field of the disputed situation, in cases that involve questions of asset or damages valuation for instance an economist.
Emmanuel Gaillard was a prominent practicing attorney, a leading authority on international commercial arbitration, and a law professor. He founded the international arbitration practice of the international law firm Shearman & Sterling before launching Gaillard Banifatemi Shelbaya Disputes, a global law firm dedicated to international arbitration, in 2021. He frequently acted as an arbitrator in international commercial or investment disputes.
Thomas W. Wälde, former United Nations (UN) Inter-regional Adviser on Petroleum and Mineral Legislation, was Professor & Jean-Monnet Chair at the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), Dundee.
The Statute of the International Court of Justice is an integral part of the United Nations Charter, as specified by Chapter XIV of the United Nations Charter, which established the International Court of Justice.
Justice Jean-Paul Beraudo is a lawyer, academic and author of legal works. He was Justice at the French Supreme Court and vice-chairman of the International Court of Arbitration. He lectures on International Private Law and International Trade Law at Panthéon-Sorbonne University and on Company law at Sciences-Po, Paris. The International Institute for the Unification of Private Law (UNIDROIT) appointed him correspondent for France and a member of the scientific committee.
In international law and diplomacy, a compromis is an agreement between two parties to submit a dispute to international arbitration for a binding resolution. A compromis is made after a dispute has already arisen, rather than before.. The compromis identifies a neutral third party - the arbitrator or arbitral tribunal - or specifies the manner of appointment. The compromis often sets forth the precise question or questions to be decided; the arbitral rules of procedure; the seat of the tribunal; the languages to be used in the proceeding; the applicable law; and the payment of costs.
Alan Vaughan Lowe is a barrister and academic specialising in the field of international law. Chichele Professor of Public International Law in the University of Oxford, and a Fellow of All Souls College, Oxford, 1999–2012; Emeritus Professor of International Law and Emeritus Fellow of All Souls College, University of Oxford, since 2012.
Investor–state dispute settlement (ISDS), or an investment court system (ICS), is a set of rules through which countries can be sued by foreign investors for certain state actions affecting the investments (FDI) of that investor by that state. This most often takes the form of international arbitration between the foreign investor and nation. For the rules to be effective, they must have been agreed upon between the states concerned.
The Beijing Arbitration Commission (BAC) is an independent non-profit organization based in Beijing offering services in arbitration, mediation, and other dispute resolution mechanisms. The BAC was established in 1995 following the passage of the Arbitration Law of the People's Republic of China. In accordance with the theories of other ADR channels, the BAC encourages arbitration and mediation forums as "win-win" alternatives to litigation. The BAC serves both domestic and international clients. An article in Business China declared the Beijing Arbitration Commission (BAC) as "the only local arbitration commission which meets or surpasses global standards.”
Albert Jan van den Berg is a founding partner of Hanotiau & van den Berg in Brussels, an Emeritus Professor of Law at the Erasmus University, Rotterdam, a visiting professor at Georgetown University Law Center, Washington DC and at the University of TsinghuaArchived 2018-08-10 at the Wayback Machine School of Law, Beijing and a member of the Advisory Board and Faculty of the Geneva Master of Laws in International Dispute Settlement (MIDS), Geneva.
The Arbitration Act 1996 is an Act of Parliament which regulates arbitration proceedings within the jurisdiction of England and Wales and Northern Ireland.
Ilya Nikiforov is a Russian lawyer, founding member and Managing partner at EPAM Law Offices, lecturer at the Department of Civil Law at Saint Petersburg State University School of Law.
Arbitration in the British Virgin Islands is regulated principally by the Arbitration Act, 2013 which came into force on 1 October 2014. Prior to that date, arbitration was regulated by the Arbitration Cap, 1976.
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