Ex aequo et bono is a Latin term used in law to refer to cases decided on the basis of justice in specific circumstances, rather than codified law or precedent. It is used in arbitration and international law where legal codes may be ill-defined or contradictory. Its use is rare and requires agreement from all parties involved. The concern with its application is the threat to judicial objectivity.
One of the many Latin terms of art used in law, ex aequo et bono translates as “that which is right and good”. In legal usage, it refers to a type of case that is decided on the basis of justice in the given circumstances, rather according to codified law or precedent. Ex aequo et bono is sometimes used in arbitration matters or in international law where legal codes may be ill-defined or contradictory.
Ex aequo et bono is based on the idea that a legal system must be complete, even if the laws do not always specify every possible circumstance. Because judges are appointed to make decisions based on justice, they may be empowered to rule in situations where laws are vague, contradictory, or even non-existent. It is important to note that not all legal systems allow this practice and, even in those that provide ex aequo et bono, its use is extremely rare.
International law is a dark area of judicial practice. If country A has labor laws that prohibit workers from working more than 12 hours a day and country B allows up to 16 hours a day, international companies need to reconcile these different standards in order to do business in both countries. This is a circumstance where ex aequo et bono could be applied to a case, as the judge may not necessarily decide that the law of a country should take precedence. Instead, the judgment could be based on what is right and good given the specific circumstances. In the guidelines established by the United Nations Commission on International Trade Law and the International Court of Justice, ex aequo et bono can only be used when all parties involved agree.
Ex aequo et bono can be used informally in some forms of law. In divorce arbitration, for example, couples may agree settlements, division of custody and assignment of debt based on an equitable settlement, rather than a codified statute. In many regions, even though there are specific laws on division, divorcing couples are given the option to create their own agreements or to do so with the help of an arbitrator or moderator. If a judge suspects coercion or believes the settlement is patently unfair to one of the parties, he usually has the option to reject it and instead abide by the specific laws.
The major concern with the application of the ex aequo et bono is the threat to judicial objectivity. The concept really dates back to the days when ruling monarchs acted as judges, leading to endless examples of subjectivity and corruption. Some critics suggest that use of the concept directly conflicts with the stated role of the judge, which is to enforce and interpret written law. In light of these concerns, this method of judging is rarely used and even banned in some jurisdictions.
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