Ex Aequo Et Bono As a Response to the 'over-Judicialisation' of International Commercial Arbitration
By: Nobumichi Teramura
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.
AI Overview
Title: "Ex Aequo et Bono as a Response to the 'Over-Judicialisation' of International Commercial Arbitration" by Nobumichi Teramura
Key Themes
Ex Aequo et Bono Principle:
- The book focuses on the principle of ex aequo et bono, which grants arbitrators the power to decide disputes based on their sense of fairness and good conscience rather than strictly adhering to specific legal rules.
Over-Judicialisation:
- The author critiques the trend of over-formalization in international commercial arbitration, arguing that this approach can lead to inefficiencies and unnecessary complexity in dispute resolution.
Party Autonomy:
- The book emphasizes the importance of party autonomy in arbitration, suggesting that parties should be more willing to allow arbitrators to make decisions flexibly, thereby enhancing the efficiency of dispute resolution.
Revitalizing Arbitration Practice:
- Teramura argues that the ex aequo et bono principle can be a valuable tool to revitalize international commercial arbitration by allowing arbitrators to act more robustly and make decisions based on fairness rather than strict legal interpretation.
Plot Summary
The book presents a comprehensive analysis of the ex aequo et bono principle and its potential to address the issues arising from the over-judicialisation of international commercial arbitration. It challenges the conventional wisdom that ex aequo et bono is an outdated or inferior method of dispute resolution. Instead, it advocates for a more flexible and adaptive approach to arbitration, one that prioritizes fairness and efficiency over rigid adherence to legal formalities.
Critical Reception
Positive Reception:
- The book has been described as "bold and challenging," suggesting that it offers a fresh perspective on arbitration practice.
- A blog post by Nobumichi Teramura, which is based on his PhD thesis and discusses the ex aequo et bono principle, has received positive feedback for challenging the negative reputation of this principle and urging the international arbitration community to reconsider its use.
Critical Points:
- While the book is well-received for its innovative approach, it may face criticism from those who prefer a more formal and legally rigorous approach to arbitration. Some might argue that relying on arbitrators' sense of fairness could lead to inconsistent decisions and undermine the predictability of arbitration outcomes.
Availability
The book is available in various formats, including hardcover, and can be purchased from online retailers such as Barnes & Noble and ThriftBooks. The hardcover edition is priced at $234.93.
In summary, "Ex Aequo et Bono as a Response to the 'Over-Judicialisation' of International Commercial Arbitration" by Nobumichi Teramura offers a thought-provoking analysis of the ex aequo et bono principle and its potential to revitalize international commercial arbitration by addressing the issues of over-judicialisation. The book is well-received for its innovative approach but may face criticism from those who prefer a more formal legal framework.