2.1       SUBSTANTIVE LAW

2.1.1    Structure of the Decision Ex Aequo et Bono

Legal decisions follow the famous syllogism according to which the rule is the major premise and the facts are the minor premise.[1] Normally, such syllogism is described as follows: “if A is, then B must be,” in which “A” represents a fact and “B” the legal consequence set forth by the rule. Generally, the rule is a prius with regard to the fact.[2]

In the decision ex aequo et bono, the positive rule is not necessarily used. The arbitrator has the option not to resort to the rule to decide.[3] Therefore, the classical syllogism does not correspond (or at least does not necessarily correspond) to the form of the decision.

Several authors have engaged in the study of the structure of the decision ex aequo et bono and are not unanimous in their conclusions. This chapter is intended to present the different views on the logical structure of the decision ex aequo et bono (or its “decision-making mechanism”), as well as some attempts of imputing a value content that transcends the only vague reference of “sense of justice” of he who decides. After a critical presentation of such positions, the author intends to demonstrate that the essential element of the decision ex aequo et bono is the freedom with regard to pre-established methods.