Decisione secondo diritto e secondo equità

Arbitration “ex bono et aequo” is provided for in our code of civil procedure, like the French one and many others, as an alternative form of judgment to arbitration according to law. Hence the need for interpreters to find the differences both with regard to the decision criteria and, possibly, with respect to the procedural rules relating, in particular, to the motivation or appeal of the award. In this regard, the answers offered are not unique and for each profile different theses are offered, even if generically united by a strictly positivist approach. The examination of the institute, conducted in light of the more general themes of the evolution of legal systems, of the role of the interpreter in the adaptation of the law, of the dialectical and inseparable relationship between law and “aequitas”, only confirms its anomalous and mysterious character. Only the particular historical origin is able to clarify the reasons for its introduction in the 19th century in the ritual codes of continental Europe, thus allowing to reveal the absence of a real distinction between the judgment of law and the judgment of “ex aequo et bono”, as has been demonstrated from arbitration practice.