1.1       LEGAL NATURE OF ARBITRATION EX AEQUO ET BONO

A recurrent topic in academic works is the legal nature (or qualification, in another school of thought) of arbitration. Practically all authors deal with the matter with more or less depth.

This is not the case with arbitration ex aequo et bono: few works are concerned with its legal nature or qualification. There are two possible explanations for that fact: the little attention that this kind of arbitration enjoys in general or the absence of autonomy that would allow for a discussion separate from arbitration in general.

On the other hand, the very use of the category “legal nature” is not free of criticism, if it is reduced to a classification exercise. However, the interest in the examination of the “legal nature” of arbitration ex aequo et bono may be affirmed here. Not as “taxonomy” exercise, but as analysis of its effects and concrete uses to better accommodate it within the “legal phenomenon,” as the classification/characterization (qualification) exercise by Private International Law.[1]

Arbitration ex aequo et bono, although as species of the genus arbitration, is sufficiently particular to be referred to as own principle. Here it is submitted that within the species of arbitration, there is a principle with sufficient density for an independent classification (qualification). Such density may be seen both in the historical analysis as in a contemporary comparative law assessment. Throughout its evolution, arbitration ex aequo et bono has been a synonym for arbitration and also has varied from it clearly (being for some time closer to conciliation). In comparative law, there are legal frameworks particular for arbitration ex aequo et bono which makes it specific in relation to arbitration in law (ex lege).

The discussion of the legal nature of arbitration ex aequo et bono requires a prior analysis of the classification (qualification) of arbitration itself. As it is understood that arbitration ex aequo et bono is contained as species under the genus of arbitration (which will be shown below), the borders of one need to be lined out in order to delimitate the other one well.