ex aequo et bono

A tribunal that decides ex aequo et bono may set aside the strict legal rules and decide on considerations of fairness and justice. It can do so only if the parties agree. Article 38(2) of the Statute of the International Court of Justice preserves the Court's power to decide a case ex aequo et bono if the parties so agree; the power has never been used.

The same idea appears in Indian arbitration law. Section 28(2) of the Arbitration and Conciliation Act, 1996 allows the arbitral tribunal to decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it. It differs from applying equity as part of law, which a court may do without such consent.

Example

Without the parties' express authority under s.28(2), the arbitrator could not decide ex aequo et bono and had to apply the contract and the law.

In Indian law

• Article 38(2), Statute of the International Court of Justice
• Section 28(2), Arbitration and Conciliation Act, 1996

See also

equity · erga omnes

Read more in the study notes

• Principal steps in arbitration and interim measures (Alternative Dispute Resolution Systems)
• Sources of international law (Public International Law)