''Ex aequo et bono'' (

Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...

for "according to the right and good" or "from equity and conscience") is a

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that is used as a legal

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. In the context of

arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ...

, 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". Article 38(2) of the

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(ICJ) provides that the court may decide cases ''ex aequo et bono'' only if the parties agree. In 1984, the ICJ decided a case using "equitable criteria" in creating a boundary in the Gulf of Maine for Canada and the US. 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) 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 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.'' The Chambers Dictionary'' (1998)
"ex aequo"
p. 561.

Ex aequo

See also

Notes

Further reading