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Ex Aequo Et Bono
Practical Law Glossary Item 6-502-6327 (Approx. 3 pages)
Glossary
Ex Aequo Et Bono
Latin for "according to the right and good," the term (also known as amiable compositeur) refers to a tribunal's consideration of a dispute according to what is fair and just given the particular circumstances, rather than strictly according to the rule of law. This type of consideration, primarily utilized in international law, typically requires the consent of all parties. For example, parties may agree to have their disputes resolved ex aequo et bono in:
- Arbitrations conducted in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (see UNCITRAL Arbitration Rules 2010, 2013 and 2021, Article 35).
- Proceedings before the International Court of Justice (ICJ), the principal judicial body of the United Nations (see Statute of the ICJ, Article 38(2)).
- Arbitrations conducted by the International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (see International Dispute Resolution Procedures of the ICDR 2021, Article 34(3)).
Ex aequo et bono and amiable compositeur clauses may not be enforced under some national laws. Commentators are wary about the largely unreviewable discretion these provisions give arbitrators. (See, for example, Gary Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing, Fifth Edition (Kluwer Law International, 2016), 90).
For more information on the various methods of resolving disputes in international arbitration, including ex aequo et bono, see Practice Note, Which laws apply in international arbitration?