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 application of the law, if appropriate, and decide solely on what they consider to be fair and equitable in the case at hand.[1] However, a decision ex aequo et bono is distinguished from a decision on the basis of equity (equity intra legem) and even tribunals with ex aequo et bono powers generally consider the law too.[1] "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".[2]
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.[3] In 1984, the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and the US.[4] This was not, however, in relation to Art. 38(2) which has never been invoked by the parties in a dispute before the ICJ.[1] 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)[5] provides that the arbitrators shall consider only the applicable law unless the arbitral agreement allows the arbitrators to consider ex aequo et bono, or as amiable compositeur, instead.[6] 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 et bono powers are occasionally granted to investor-state tribunals deciding disputes between states and foreign investors, such as in Benvenuti & Bonfant v Republic of the Congo.[1]
Ex aequo
The phrase ex aequo (without et bono) is used to mean "equally placed", often in the context of competition winners.[7]
The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization headquartered at the Peace Palace, in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides administrative support in international arbitrations involving various combinations of States, State entities, international organizations and 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 123 Contracting Parties. The PCA is not a United Nations agency, but has been a United Nations observer since 1993.
The International Centre for Settlement of Investment Disputes (ICSID) is an international arbitration institution established in 1966 for legal dispute resolution and conciliation between international investors and States. ICSID is part of and funded by the World Bank Group, headquartered in Washington, D.C., in the United States. It is an autonomous, multilateral specialized institution to encourage international flow of investment and mitigate non-commercial risks by a treaty drafted by the International Bank for Reconstruction and Development's executive directors and signed by member countries. As of May 2016, 153 contracting member states agreed to enforce and uphold arbitral awards in accordance with the ICSID Convention.
Bifurcation is a judge's ability in law to divide a trial into two parts so as to render a judgment on a set of legal issues without looking at all aspects. Frequently, civil cases are bifurcated into separate liability and damages proceedings. Criminal trials are also often bifurcated into guilt and sentencing phases, especially in capital cases.
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.
An arbitration award is a final determination on the jurisdiction, merits, costs or other aspect of a dispute by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law. It is referred to as an 'award' even where all of the claimant's claims fail, or the award is of a non-monetary nature.
Stephen Myron Schwebel, is an American jurist and international judge, counsel and arbitrator. He previously served as judge of the World Bank Administrative Tribunal (2010–2017), as a member of the U.S. National Group at the Permanent Court of Arbitration, as president of the International Monetary Fund Administrative Tribunal (1993–2010), as president of the International Court of Justice (1997–2000), as vice president of the International Court of Justice (1994–1997), and as Judge of the International Court of Justice (1981–2000). Prior to his tenure on the ICJ, Schwebel served as deputy legal adviser to the U.S. Department of State (1974–1981) and as assistant legal adviser to the U.S. Department of State (1961–1967). He also served as a professor of law at Harvard Law School (1959–1961) and Johns Hopkins University (1967–1981). Schwebel is noted for his expansive opinions in momentous cases such as Legality of the Threat or Use of Nuclear Weapons, Military and Paramilitary Activities in and Against Nicaragua and Oil Platforms .
Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision. The third party neutral renders the decision in the form of an 'arbitration award'. An arbitration award is legally binding on both sides and enforceable in local 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. The tribunal usually consists of an odd number of arbitrators. 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.
Section 1782 of Title 28 of the United States Code is a federal statute that allows a litigant (party) to a legal proceeding outside the United States to apply to an American court to obtain evidence for use in the non-US proceeding, a process known as discovery. The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals".
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.
Investor–state dispute settlement (ISDS), or an investment court system (ICS), is a set of rules through which states can be sued by foreign investors for certain state actions affecting the foreign direct investments (FDI) of that investor. This most often takes the form of international arbitration between the foreign investor and the state. As of June 2024, over US$113 billion has been paid by states to investors under ISDS, the vast majority of the money going to fossil fuel interests.
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 the Parliament of the United Kingdom which regulates arbitration proceedings within the jurisdiction of England and Wales and Northern Ireland.
Roberts Bishop "Bob" Owen was an American lawyer and diplomat. He served as Legal Adviser of the Department of State from 1979 to 1981 and acted as a mediator and arbitrator in several international disputes.
August Reinisch is an Austrian public international lawyer.
ZF Automotive U. S., Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022), is a decision of the United States Supreme Court on the scope of §1782 of Title 28 of the United States Code. The issue of statutory interpretation for the Court was whether a private commercial arbitral tribunal constitutes a "foreign or international tribunal" under 28 U.S.C. § 1782(a) and therefore empowers federal districts courts to compel the production by persons subject to their jurisdiction of documents and testimony for such tribunals.
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