| Abstrakt: |
Amidst increased calls for diversity, efficiency and adaptability in international arbitration, the once obsolete decisional standard of ex aequo et bono may be worth revisiting. Indeed, free from the constraints of national or transnational normative benchmarks, ex aequo et bono is capable of encouraging the exercise of moderation by legal counsel, limiting the "judicialization" of arbitral proceedings, broadening the pool of eligible counsel and arbitrators and eliminating the need for legal experts. Moreover, it can contribute to the reduction of costs and ensure responsiveness to the legal challenges posed by rapid technological developments. Notwithstanding these advantages, much attention has been paid to the standard's perceived risks, which include the potential for excessive arbitral discretion/arbitrariness and the lack of legal security and predictability. The success story of the Basketball Arbitral Tribunal nonetheless suggests that these risks are relatively overstated, and can be mitigated inter alia by the presence of an active secretariat, "intra-institutional" dialogue and an obligation to provide reasoned awards. Additional design features, such as a closed list of arbitrators, short but flexible timeframes, homogenous contractual relationships and an obligation to ensure a coherent body of case law would be equally desirable in order for a given institution to reap the full benefits of ex aequo et bono. [ABSTRACT FROM AUTHOR] |
