A Comparative Study on the Equity and Ex Aequo Et Bono

Equity, for resolving disputes by a judge or an arbitrator, is sometimes used as a general principle of law ("equity") and sometimes as the high moral principles that can put aside the law ("ex aequo et bono"). A part from the practical effects of distinction between these concepts, it is settled that they are different from each other in several aspects. The origin of equity, in its present sense, dates back in national laws to the Roman Germanic system of law to 1625, on the basis of the Aristotle's thoughts in this regard, and in international law to 1920. Equitable solution, on the basis of ex aequo et bono relates, in domestic law, under the influence of Uncitral Arbitration Rules, to 1976 and, in international law, to 1920. Equity is usually a legal norm which, in decision making, is taken into consideration as a part of law. While the nature of ex aequo et bono is a judicial discretion on the basis of which the judge, disregarding the law, decides about the matter. There is often no need to the consent of disputing parties regarding equity, but use of ex aequo et bono, in any case, requires the consent of the parties. Equity in the law of Iran, except within the context of Art.27 (3) of the International Commercial Arbitration Act, has been used as a general principle of law, often implicitly, in the law and legal precedents