Chicago Journal of International Law


This Article argues that the concept has a valuable and emerging significance in modern law. It is ideally suited to resolving disputes between parties who are engaged in complex and long-term relationships or in emerging fields in which the law is either inadequately developed or unsuitable to resolve complex disputes. The Article evaluates the negative conceptualization of ex aequo et bono. It argues against the overly artificial divide between equitable decisions, which accord with law, and ex aequo et bono decisions, which by inference do not. Tracing the evolution of the concept historically through the Medieval Law Merchant to modern times, the Article sets out how ex aequo et bono might be revitalized in both international and domestic law. Arguing that ex aequo et bono operates along a continuum rather than at a fixed point between law and non-law, the Article illustrates how it can be both formulated and applied. The Article demonstrates how to relate ex aequo et bono to the law of equity and how to reconcile it with "gap filling" under law. It also shows how discretion in applying ex aequo et bono can be subject to internal and external limits, and how parties can invoke it most effectively to resolve their disputes. The Article concludes by presenting a methodology by which to guide the application of ex aequo et bono to such disputes.