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Ex Aequo et Bono' as a Response to the ‘OverJudicialisation’ of International Commercial Arbitration

Ex Aequo et Bono' as a Response to the ‘OverJudicialisation’ of International Commercial Arbitration

Author: Nobumichi Teramura
Publisher: Kluwer Law International
ISBN: 9789403520735
Published In: April 2020
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

List Price: HKD 1,548.63

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Description
Contents

Details

'Ex Aequo et Bono' as a Response to the ‘Over-Judicialisation’ of International Commercial Arbitration investigates significant divergence in the understanding of ex aequo et bono across state jurisdictions and international arbitration institutions and analyses the core trends in actual legal practice and in thinking about the principle. Despite its many distinguished proponents over time, ex aequo et bono – the idea of deciding disputes on the basis of what an adjudicator regards as fair and equitable – has failed to take hold in international commercial arbitration (ICA). Formalisation and fossilisation of arbitral procedure, as manifested in the increasing use of litigation-style practice, unfortunately reign instead. This bold and challenging book argues that parties to an arbitration should be more willing for their cross-border disputes to be decided (and arbitrators should be more prepared to decide those disputes) in accordance with broad principles of equity and fairness, rather than by strict adherence to technical rules of law.

What’s in this book:

Putting forward suggestions based on an extensive research and doctrinal considerations, this book invites us to confront what ICA was supposed to be, what it now is and what it can be. In particular, the author discusses how, by resorting to ex aequo et bono, arbitrators can:

construe contractual terms, including the limits
apply trade usages
deal with mandatory rules of a given forum or place of performance
minimise the cost and length of time that arbitration takes
avoid the abuse of discretion, and
ensure predictable results

This book suggests that the flexibility inherent in ex aequo et bono needs to be both re-evaluated and rejuvenated. It urges the international arbitration community to adopt a revitalised conception of ex aequo et bono to counter-balance the encroaching ‘over-judicialisation’ of arbitration.

How this will help you:

The book examines significant differences in the way that ex aequo et bono arbitration is understood among various state and international institutions. It attempts to identify a ‘common core’ of universally accepted concepts underlying those different understandings. This book discusses the implications of ex aequo et bono arbitration on the now widely used UNCITRAL Model Law on ICA. It should thus appeal to lay business persons and commercial law practitioners who are looking for an economical and efficient way to solve business disputes within a globalised arbitration framework and students in arbitration courses.

Foreword

List of Abbreviations

Acknowledgments

Introduction

Chapter 1. Ex Aequo Et Bono: A Forgotten Opportunity to Rescue International Commercial Arbitration From ‘Over-Judicialisation’

Chapter 2. The Modern Legal Doctrinal Methodology Applied to Ex Aequo Et Bono Under the Uncitral Model Law on International Commercial Arbitration

Chapter 3. The Strengths and Weaknesses of Arguments Pertaining to Ex Aequo Et Bono

Chapter 4. Ex Aequo Et Bono and Contract Terms: The Interpretation of Contract Terms By Arbitrators Invested with the Power of Fairness

Chapter 5. Ex Aequo Et Bono and Trade Usages: The Application of the Usages of Trade By Arbitrators Invested with the Power of Fairness

Chapter 6. Ex Aequo Et Bono, Mandatory Rules of Law and Public Policy: Balancing the Discretion of Private Adjudicators to Decide Fairly Against Constraints Imposed By Nation States

Chapter 7. Ex Aequo Et Bono and Arbitration Theories: An Arbitrator’s Subjective Perspective of Fairness as the Final ‘Gap-Filler’

Bibliography

Index