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Ex Aequo et Bono: Demystifying an Ancient Concept by ProQuest


In effect, arbitrators reach their decisions not on the basis of applicable law, but according to what they consider to be "fair" and "in good conscience" in the circumstances.5 Dynamic changes in international relations, typified by the growing international investment disputes, have brought the concept of ex aequo et bono back into focus.6 Parties are increasingly faced with little or no law in the applicable field, or a situation where one or both parties mistrust the law or its application to their particular dispute.7 Coupled with this is a growing interest in the expeditious resolution of disputes in emerging areas of law, particularly the law as it relates to the internet, intellectual property, and state-investor disputes. A system which depends on conceptions of fairness may also be considered preferable to the law of an applicable state.8 Finally, parties engaged in a long-term relationship may be interested in resolving their disputes by amiable compositeu9 or ex aequo et bono in order to maintain their ongoing association.10 Ex aequo et bono has the most to offer in respect of such relational agreements, as distinct from discrete transactions.11 The result is international organizations' mounting interest in dispute resolution ex aequo et bono, most notably that of the International Chamber of Commerce ("ICC").12 One key issue for consideration relates to how the concept of ex aequo et bono might evolve in the future, including how it could be constituted to suit modern international needs.

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