The Function of Equity in International

Law Catharine Titi

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The Function of Equity in International Law
The Function of Equity
in International Law
C AT HA R I N E T I T I

1
 3
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For Mum and Dad
 Foreword

Aequitas soror iuris. If equity is the sister of the law, she is a much-​neglected
sibling. Only rarely does equity step out of the shadow of the law to make an
independent appearance. Most of the time, equity is seen as a natural attribute
of the law that does not require much attention. But equity has a far more active
life than would appear at first sight.
Equity is hidden and yet ubiquitous. It influences legislators as well as ad-
judicators. Both are driven by considerations of equity. The legislator strives
to make laws that are equitable in the sense of distributive justice. The adju-
dicator attempts to make decisions that are not merely correct but also just. It
is no coincidence that the Latin aequitas stands not just for equity but also for
equanimity. Our conscience demands equity. Fairness is essential for our peace
of mind.
Sometimes equity is in a state of tension with the strictures of the law. Roman
law developed a separate body of law the ius honorarium or ius praetorium to
soften the rigidity of the ius civile. Over time, the two bodies of rules merged,
and their separate existence disappeared. Similarly, in English law, the Court of
Chancery supplemented and softened the inflexible common law and statute
law through the development of equity. In both these systems, equity was ul-
timately absorbed into the mainstream of the law.
International law is a relatively young discipline and its relationship to eq-
uity appears still unsettled. Concepts like equity contra legem and the excep-
tional power of tribunals to decide ex aequo et bono appear to juxtapose law
and equity suggesting their separate existence.
International courts and tribunals have been bashful and cautious about
relying on equity. They do refer to equitable considerations, but only sparingly.
Authorisations to decide ex aequo et bono are seldom given and even where
they exist, tribunals are reluctant to make full use of them.
A closer look, however, reveals that equity plays a central role in inter-
national law. In some areas of international law, equity has traditionally been
dominant. Equitable considerations have for some time governed the calcu-
lation of damages, although there is a clear trend towards specific rules. The
requirement to state detailed reasons reinforces this trend. Maritime delimita-
tion depends in large measure on equity, although the jurisprudence of the ICJ
viii Foreword

shows an increasing dependence on consistent methods. These methods are in

the process of solidifying into recognised rules. Some of the equitable innov-
ations of the past are in the process of becoming hard law.
Some developments in the field of international law are driven by equitable
considerations. One example is the demand for a New International Economic
Order, especially when it comes to the distribution of natural resources and
the common heritage of mankind principle. Other examples are the evolving
law governing cultural heritage and international waterways. In a wider sense,
the development of international human rights goes back to considerations of
justice and equity.
The standard of fair and equitable treatment in international investment
law is a good illustration of the process of solidification of broad equitable
principles into specific rules of law. Over a relatively short period of time, tri-
bunals have given concrete meaning to this precept, developing several spe-
cific standards such as the requirements to protect legitimate expectations, to
guarantee procedural fairness, and to desist from coercion, harassment, and
discrimination.
Catharine Titi’s monograph is the first systematic and comprehensive study
of the role of equity in contemporary international law. She diagnoses three
major functions of equity: equity as corrective justice, equity as distributive
justice, and equity as supplementary justice. The first category is designed to
correct injustice that would otherwise result from the strict application of the
law. Often this can be achieved by selecting from a range of available options.
Distributive justice looks at the allocation of resources and the distribution of
benefits and burdens. Supplementary justice essentially serves the filling of
gaps. At the same time, she discards the traditional triad of equity infra, praeter,
and contra legem. Not only are the boundaries between these categories fluid.
Most importantly, all types of equity are elements of the law and, consequently,
equity contra legem is a contradiction in terms.
The central theme of this book is that equity is part of international law. It is
a general principle of international law of a customary law nature. At the same
time, equity is one of the most important sources of international law. Equity
permeates international law and is inherent in its sound application. It is part
of the jurisprudence constante of international courts and tribunals.
Several norms that are obvious manifestations of equity have become well-​
established parts of international law. Examples are the principles of equality,
reasonableness, estoppel, acquiescence, good faith, unjust enrichment, the
clean hands doctrine, the prohibition of abuse of rights, and proportionality.
To these, one may add the principles of humanity, respect for life, and human
 Foreword ix

dignity. International courts and tribunals apply these equitable principles

as part of the established body of international law, usually without invoking
equity.
Therefore, equity is not an extra-​legal concept. It does not stand in contrast
to international law. Rather, it is part of the fabric of international law. It is a
source of international law –​perhaps the source of international law: aequitas
mater iuris.

Christoph Schreuer
 Acknowledgements

Many people have supported me in this book project. I would like to thank
especially Charalampos Apostolidis, Freya Baetens, Joanne Gabrynowicz,
Anastasios Gourgourinis, Ted Gleason, Clifford Hendel, August Reinisch,
Calliope Sudborough, Christian Tams, Tullio Rodolfo Treves, and Frans von
der Dunk for taking the time to consider, review, and discuss different parts
of the book. I am particularly indebted to Christoph Schreuer for his generous
support and counsel and to Attila Tanzi for encouraging me to turn to the
sources of international law, for his support, advice, and thoughtful comments
throughout this project. From Oxford University Press, I am grateful to Emma
Collison, Elissa Connor, Libby Holcroft, and Arokia Anthuvan Rani and, in
particular, to my wonderful editors, Merel Alstein and Jack McNichol.
 Contents

Abbreviations  xvii
1. Introduction  1
I. Equity in International Law  1
A. The Concept of Equity  1
B. Equity, Law, and Justice  3
II. Scope of the Book  6
A. Overall Purpose  6
B. Coverage of International Courts and Tribunals  8
III. Outline of the Book  11

PA RT I P R E L I M I NA RY M AT T E R S
2. Origins of Equity  17
I. Introduction  17
II. Greek and Roman Law Origins: From Aristotle to Cicero  18
III. From the Middle Ages to the Late Modern Period  23
IV. Equity in English Law  24
V. Later Development  27
VI. Conclusions  28
3. Equity before International Courts and Tribunals  29
I. Introduction  29
II. Mixed Claims Commissions and Early Arbitration Tribunals  30
III. The Permanent Court of International Justice  37
IV. The International Court of Justice  38
A. Maritime Delimitation and Allocation of Maritime Resources  39
B. The Barcelona Traction Case: A Missed Opportunity?  50
V. The International Tribunal for the Law of the Sea  58
VI. Interstate Arbitration  59
A. The Rann of Kutch Case  60
B. The Anglo-​French Continental Shelf Case  61
C. Later Cases  63
VII. Conclusions  65
xiv Contents

PA RT I I E QU I T Y I N G E N E R A L
4. The Purpose of Equity  69
I. Introduction: ‘The way is equity, the end is justice’  69
II. Equity as Corrective Justice  70
A. Equity as Individualised Justice  71
B. Softening Law’s Rigidity  74
III. Equity as Distributive Justice  76
A. Allocation of Resources, Distribution of Benefits and Burdens  77
B. The Common Heritage of Mankind  79
C. Intergenerational Equity  80
D. Equitable Representation  81
IV. Equity as Supplementary Justice  82
V. Conclusions  83
5. Traditional Typology of Equity  84
I. Introduction  84
II. Three Kinds of Equity  85
A. Equity infra legem  85
B. Equity praeter legem  87
C. Equity contra legem  91
III. The Limitations of the Traditional Typology  92
IV.  Antigone’s Law  99
V. Revisiting Equity contra legem  101
VI. Conclusions  103
6. Power to Resort to Equity  104
I. Introduction  104
II. Equity and Law  105
III. A Principle and a Rule  108
IV. Equity as a Source of Law  113
A. Treaty Law  114
B. Customary International Law  122
C. General Principles of Law  128
D. Customary International Law Revisited: General Principles of
International Law  132
V. Conclusions  135

PA RT I I I SP E C I F IC A SP E C T S O F E QU I T Y
7. Jurisdiction ex aequo et bono  139
I. Introduction  139
II. International Courts  142
III. Interstate Arbitration  145
 Contents xv

IV. International Investment Arbitration  147

A. Investment Law’s ex aequo et bono Decisions  147
B. Ex aequo et bono as a Ground for Annulment  151
V. For What Types of Disputes Is ex aequo et bono Appropriate?  154
VI. Compatibility with the Judicial Function  158
VII. Conclusions  159
8. Variations on Equity and Related Concepts  161
I. Introduction  161
II. Equality  162
III. Reasonableness  163
IV. Estoppel  165
V. Acquiescence  168
VI. Good Faith  171
VII. Unjust Enrichment  173
VIII. The Clean Hands Doctrine  174
IX. Abuse of Rights  178
X. Proportionality  181
XI. Conclusions  184
9. Equity, Compensation, and Costs  185
I. Introduction  185
II. Compensation  186
III. Costs  193
A. Allocation of Costs  194
B. Security for Costs  195
IV. Conclusions  198
10. Conclusion  199

Index  203
 Abbreviations

AFDI Annuaire français de droit international

AJCL American Journal of Comparative Law
AJIL American Journal of International Law
ARIEL Austrian Review of International and European Law
ASDI Annuaire suisse de droit international
AU ILR American University International Law Review
BIT Bilateral investment treaty
BYIL British Yearbook of International Law
CETA Comprehensive Economic and Trade Agreement between the
European Union and its Member States and Canada
CJEU Court of Justice of the European Union
CJTL Columbia Journal of Transnational Law
CLJ Cambridge Law Journal
CPTPP Comprehensive and Progressive Agreement for Trans-​Pacific
Partnership between the European Union and Canada
CUP Cambridge University Press
DRC Democratic Republic of the Congo
Duke JCIL Duke Journal of Comparative & International Law
ECHR European Court of Human Rights
EJIL European Journal of International Law
FCN Friendship, commerce and navigation
HUP Harvard University Press
IAReporter Investment Arbitration Reporter
ICC International Criminal Court
ICJ International Court of Justice
ICLQ International & Comparative Law Quarterly
ICLR International Community Law Review
ICPRCP Intergovernmental Committee for Promoting the Return of
Cultural Property to its Countries of Origin or its Restitution in
case of Illicit Appropriation
ICSID International Centre for Settlement of Investment Disputes
ICSID Convention Convention on the Settlement of Investment Disputes between
States and Nationals of Other States
IJCP International Journal of Cultural Property
ILA International Law Association
ILC International Law Commission
ILJ International Law Journal
xviii Abbreviations

ILO International Labour Organization

ILR International Law Reports
Intl International
ITLOS International Tribunal for the Law of the Sea
IUSCT Iran-​US Claims Tribunal
IYHR Israel Yearbook on Human Rights
JIDS Journal of International Dispute Settlement
JIL Journal of International Law
JILP Journal of International Law & Policy or Politics
JWIT Journal of World Investment & Trade
LCIA London Court of International Arbitration
LJ Law Journal
LJIL Leiden Journal of International Law
LRev Law Review
MaxPlanckEPIL Max Planck Encyclopedia of Public International Law
NAFTA North American Free Trade Agreement
OECD Organisation for Economic Co-​operation and Development
OJLS Oxford Journal of Legal Studies
OUP Oxford University Press
PACER Plus Pacific Agreement on Closer Economic Relations Plus
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
QUTLJJ Queensland University Technology Law & Justice Journal
RBDI Revue belge de droit international
RIAA Reports of International Arbitral Awards
SCC Stockholm Chamber of Commerce
U University
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNCLOS United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
UNECE United Nations Economic Commission for Europe
UNESCO United Nations Educational, Scientific and Cultural
Organization
UNGA United Nations General Assembly
UNIDROIT International Institute for the Unification of Private Law
USMCA United States-​Mexico-​Canada Agreement
VCLT Vienna Convention on the Law of Treaties
VJIL Virginia Journal of International Law
WTO World Trade Organization
YB Yearbook or Year Book
 1
Introduction

I. Equity in International Law

A. The Concept of Equity

Few legal concepts have sustained heated controversy and impassioned de-
bate over such protracted periods of time. But equity has spanned the ages
both serving as a torchlight in the quest for justice and breeding disagree-
ment. Expression of the maxim summum ius, summa iniuria,1 protean and
chameleon-​like, equity takes different shapes in the eye of the beholder.
Agreement about its semantic content is obtained only at a high level of ab-
straction and defining it can prove an insuperable challenge. Almost nowhere
is equity used with the exact same meaning. Equity is that which is ‘fair and
reasonable in the administration of justice’;2 it is the instillation of reasonable-
ness and good faith in legal relations;3 an attribute of a developed legal system;4
an ‘agent of legal change’;5 and ‘an element in the progressive development of
international law’.6 A ‘direct emanation of the idea of justice’,7 equity requires
a balancing of competing interests;8 it encompasses a body of legal principles
‘designed to critique the law’ and to encourage fairness in international rela-
tions.9 It is what is ‘fair and just’, ‘an element of law’ that ushers ‘ethical values
into the legal norms’.10 It is ‘justice normatively expressed as law’.11 Equity also

1 Cited in Cicero, De Officiis, Book I, 33.

2 Francesco Francioni, ‘Equity in International Law’ (2013) MaxPlanckEPIL, para 1.
3 Georg Schwarzenberger, ‘Equity in International Law’ (1972) YB World Affairs 346, 347.
4 ibid (‘The movement from primitive and archaic legal systems to mature and developed legal sys-

tems tends to be accompanied by a change in emphasis from jus strictum to jus aequum’).
5 Henry Sumner Maine, Ancient Law (16th edn, John Murray 1897) 44.
6 Francioni, ‘Equity’ (n 2) para 29.
7 Continental Shelf (Tunisia/​Libya) (Judgment) [1982] ICJ Rep 18 [71]. See also Continental Shelf

(Libya/​Malta) (Judgment) [1985] ICJ Rep 13 [45]; Norwegian Shipowners’ claims (Norway v United
States) (1922) 1 RIAA 307, 331.
8 Hugh Thirlway, The International Court of Justice (OUP 2016) 28.
9 Thomas Franck, ‘Fairness in the International Legal and Institutional System’ (1993) 240 Recueil

des Cours 9, 62.

10 Ralph Newman, ‘Introduction’ in Ralph Newman (ed), Equity in the World’s Legal Systems

(Bruylant 1973) 15.

11 Anastasios Gourgourinis, ‘Delineating the Normativity of Equity in International Law’ (2009) 11

ICLR 327, 346.

The Function of Equity in International Law. Catharine Titi, Oxford University Press. © Aikaterini Titi 2021.
DOI: 10.1093/​oso/​9780198868002.003.0001
2 Introduction

refers to the power conferred on certain courts and tribunals to decide a dis-
pute ex aequo et bono without necessary reference to legal norms.12 Equity can
be all that, and yet none of these descriptions captures the fulcrum of what eq-
uity is. Antinomies are observed13 and only the most munificent reading can
push beyond such disparate understandings and focus on the content of equity.
Partly because of the uncertainty that surrounds it, the use of equity has
been accompanied by statements of caution. An identified potential problem, a
whiff of judicial discretion exercised at the expense of legal certainty, has made
the international judiciary wary about invoking it too often. International
courts have trod circumspectly around equity, at least outside disputes con-
cerning maritime boundaries and to some extent the allocation of scarce re-
sources. When they do refer to it, they are at pains to stress that what they apply
is equity within the law.14 Sometimes, they prefer not to address it, although
the disputing parties raise it in their pleadings.15 Ex aequo et bono adjudication
on the basis of Article 38(2) of the Statute of the International Court of Justice
(ICJ) –​and its predecessor, Article 38 of the Statute of the Permanent Court
of International Justice (PCIJ) –​has notoriously never been used: the political
connotations of an ex aequo et bono mandate were said to threaten to diminish
the authority of the Court’s judicial function.16 Ian Brownlie’s vehement de-
nunciation of equity still resounds decades after it was pronounced: ‘Whatever
the particular and interstitial significance of equity in the law of nations, as
a general reservoir of ideas and solutions for sophisticated problems it offers
little but disappointment.’17 Such an understanding of equity is disappointing
indeed.
Whatever its real or perceived failings, equity permeates the fabric of inter-
national law. Inherent feature of this law, it is present in the reasoning of
international courts and tribunals, sometimes called by its proper name and
sometimes cloaked under its aliases and variations: good faith, reasonableness,

12
Francioni, ‘Equity’ (n 2) para 1.
13
For instance, to canvass equity as ‘an element of law’ and to state that equity is ‘designed to critique
the law’ points to two different understandings of the relationship between equity and law. This topic is
discussed in ch 6, section II Equity and Law.
14 See ch 5.
15 Eg see Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) (Judgment) [2018] ICJ

Rep 507 [44], [73], where both Chile and Bolivia invoked equity to buttress their respective position. In
the Memorial of the Bolivian Government (17 April 2014) vols I–​II, pts I–​II, the term ‘equity’ and its de-
rivatives appeared no less than 43 times. However, equity’s relevance to each and every case must not be
taken for granted. In casu, the ICJ did discuss equitable principles underlying the respective arguments,
notably acquiescence and estoppel, Judgment, [149]–​[159].
16 Markus Kotzur, ‘Ex Aequo et Bono’ (2009) MaxPlanckEPIL, para 7; ch 7, section VI Compatibility

with the Judicial Function.

17 Ian Brownlie, ‘Legal Status of Natural Resources in International Law (Some Aspects)’ (1979) 162

Recueil des Cours 247, 288.

 Equity in International Law 3

clean hands, unjust enrichment, proportionality, estoppel, fair and equitable

treatment, equitable sharing –​to name but a few. Despite an apparent disin-
clination to expressly rely on equity, its reach stretches well beyond the bound-
aries of maritime delimitation and the allocation of resources. But this simple
truth often goes unnoticed. From international cultural heritage law to envir-
onmental law, from judgments on transboundary disputes to procedural deci-
sions on security for costs in investment arbitration, the relevance of equity is
more far-​reaching than has previously been conceded.
Moreover, as the importance of international law increases, continuously
covering new domains, the value of equity increases with it. Equity influences
international law at its ‘formative stage’,18 it infuses it during its lifetime, such
as through treaty amendment, and it intervenes when international law is ap-
plied.19 New equity is continually incorporated in legal norms, it ‘is a stage in
the growth of law’.20 As equity becomes embedded in legal norms, it loses some
of its flexibility and new equity is still necessary. That said, equity is also needed
where international law is the least developed. Examples include the incipient
international law on food security and health21 and, in environmental law, the
legal framework going forward on climate change. Resort to equity can further
mark an absence of regulation and serve to identify the need for an enabling
legal framework to guide the international judiciary in decision-​making. And
so long as much of international law remains a blank slate, and new areas are
yet to be regulated, equity has a place and a role to play. It is this new function of
equity in the international law of the 21st century that this book explores.

B. Equity, Law, and Justice

One of the most controverted discussions about equity, and one that remains at
the core of this book, concerns the relationship between equity, law, and justice.
The bulk of this debate has focused on the binomials ‘law and justice’, ‘equity
and justice’, and ‘law and equity’. While the first binomial, ‘law and justice’, is

18 Francesco Francioni, ‘Compensation for Nationalisation of Foreign Property’ (1975) 24(2) ICLQ

255, 256.
19 ibid.
20 Roscoe Pound, ‘The Decadence of Equity’ (1905) 5(1) Columbia LRev 20, 21.
21 To this effect, UN General Assembly (UNGA) Res 74/​274 (20 April 2020) UN Doc A/​RES/​74/​

274, issued in the thick of the COVID-​19 pandemic, provides for equitable access to, inter alia, health
products, preventive tools, laboratory testing, medical supplies, drugs, and vaccines, and sets targets
for research and development funding, international scientific cooperation and coordination, while
‘adhering to the objectiv[e]‌of . . . equity’, recitals, paras 2–​3.
4 Introduction

mostly beyond the scope of this book, ‘equity and justice’ and ‘law and equity’
provide the backbone for its narrative and are the focus of dedicated parts.
A few introductory words are apposite at this point.
As to the first pair, ‘law and justice’, the Charter of the United Nations, of
which the Statute of the ICJ is an integral part, states that one of the purposes
of the United Nations is ‘to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement of
international disputes or situations that might lead to a breach of the peace’.22 The
Preamble to the Charter refers to the establishment of ‘conditions under which
justice and respect for the obligations arising from treaties and other sources of
international law can be maintained’.23 But the hendiadys of international law
and justice has given some scholars reason to pause and somewhere along the
line it has begged the question of whether justice, on the one hand, and treaty
law or obligations arising from other sources of international law, on the other,
are two distinct animals. Hans Kelsen argued that to announce respect for justice
and international law simultaneously is problematic.24 Either ‘justice’ and ‘inter-
national law’ are the same, in which case one of the two is superfluous, or they are
not. If they are not, which seems more credible, there can be situations in which
the one may oppose the other.25 Kelsen deduced that the organs of the United
Nations called upon to apply such provisions would be able to choose between
international law and justice; this would weaken respect for international law.26
Nonetheless, the precept or obligation is directed among others to the ICJ, as the
‘principal judicial organ of the United Nations’.27 Article 38(1) of the Statute of
the ICJ enjoins the Court to decide ‘in accordance with international law’ but is
agnostic about ‘justice’.28 Since ‘justice’ is not listed in Article 38 of the Statute,
would that mean that for the Court international law always trumps justice?29
The dilemma points to a high degree of sophistication in the philosophy of
law but may have little practical significance. As a way of solving it, and in ac-
cordance with an interpretative presumption against normative conflict,30 it
has been suggested that law and justice are two parts of a triad, of which the

22 UN Charter art 1(1). See also art 2(3) (‘All Members shall settle their international disputes by

peaceful means in such a manner that international peace and security, and justice, are not endangered’).
23 Emphasis added.
24 Hans Kelsen, The Law of the United Nations (Lawbook Exchange 1950, 2000) 16–​17.
25 ibid 17–​18.
26 ibid 18.
27 UN Charter art 92.
28 Kelsen (n 24) 365–​366.
29 This view was criticised in Maritime Delimitation in the Area between Greenland and Jan Mayen

(Separate Opinion Weeramantry) [1993] ICJ Rep 211 [97]–​[98] (‘Such views, with great respect, do not
take into account the fact that much of international law already embodies equity’).
30 Robert Kolb, The Law of Treaties (Edward Elgar 2016) 183.
 Equity in International Law 5

third part is equity.31 Indeed sometimes law, equity, and justice are mentioned
simultaneously.32 It is possible that international law and justice need not be in
opposition to each other and the introduction of equitable principles in the ap-
plication of international law can ensure respect for both. According to Shabtai
Rosenne, no opposition can be admitted between ‘justice’ and ‘obligations
arising from treaties and other sources of international law’ ‘for what we have
is a “monad” of equity, law and justice’.33 But the unity, if unity it is, of justice,
law, and equity tells us little about how to do justice, how to apply the law (and
equity), if in a concrete case there is a conflict between them. Is an application
in tandem always possible?
Turning to the second binomial, the close relationship between ‘equity’ and
‘justice’ has been repeatedly observed. It goes back to the Aristotelian legacy of
distinguishing between different types of justice and the discussion of equity
as corrective, distributive, and supplementary justice.34 The purpose of equity
is to do justice. Justice is the rationale of equity and its ethical foundation. The
ICJ has remarked that it must apply equity because it is its duty to administer
justice,35 although such justice must be in accordance with the rule of law.36
Equity then is the link that tethers international law to justice. The relationship
between equity and justice is addressed in Chapter 4.
But probably the most formidable challenge is posed by the relationship be-
tween ‘law’ and ‘equity’. According to a well-​known aphorism, if men were per-
fect, there would be no need for laws; if laws were perfect, there would be no
need for equity.37 If one is to rely on this statement, then equity may at first

31 Louis Sohn, ‘The Role of Equity in the Jurisprudence of the International Court of Justice’ in

Bernard Dutoit and Etienne Grisel (eds), Mélanges Georges Perrin (Payot 1984) 304.
32 Eg Tunisia/​Libya (n 7) [71]; North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3 [88];

Barcelona Traction, Light and Power Company (Separate Opinion Fitzmaurice) [1970] ICJ Rep 64 [36].
For an earlier example, see Aroa Mines, Mixed Claims Commission (Great-​Britain-​Venezuela) (merits)
(1903) 9 RIAA 402, 445. See also Treaty of Amity, Commerce and Navigation between his Britannick
Majesty and the United States of America (19 November 1794) (Jay Treaty) art 7, according to which
claims should be decided according to ‘Justice, Equity and the Laws of Nations’. See further Emer de
Vattel, The Law of Nations (6th American edn, Johnson 1844); Hersch Lauterpacht, Private Law Sources
and Analogies of International Law (Longmans, Green & Co 1927) 63–​67; Sohn, ‘Role of Equity’ (n
31) 305–​306, n 7; Louis Sohn, ‘The Function of International Arbitration Today’ (1963) 108 Recueil des
Cours 1, 43; Eric Agostini, ‘L’équité’ (1978) (Chronique II) Recueil Dalloz-​Sirey 7, 8; Bin Cheng, ‘Justice
and Equity in International Law’ (1955) 8 Current Legal Problems 185, 211; William Bishop, ‘Sources
of International Law’ (1965) 115 Recueil des Cours 148, 246; Gourgourinis, ‘Normativity of Equity’ (n
11) 346.
33 Shabtai Rosenne, ‘The Position of the International Court of Justice on the Foundations of

the Principle of Equity in International Law’ in An International Law Miscellany (Martinus Nijhoff
1993) 204.
34 See ch 4.
35 Tunisia/​Libya (n 7) [71].
36 Libya/​Malta (n 7) [45].
37 Magdi Sami Zaki, ‘Définir l’équité’ (1990) 35 Archives de philosophie du droit 87, 87.
6 Introduction

appear to be distinct from law. But this leaves us in a different kind of quan-
dary: is it really possible and theoretically sound to view equity as distinct from
law? Is equity to be pressed into service to avoid compliance with the law? Can
equity actually be applied contra legem? The Statute of the ICJ, as the Statute
of the PCIJ before it, does not contemplate the application of equity as dis-
tinct from law;38 equity itself is not listed as a source of law in Article 38 of the
Statute. The ICJ has felt its way cautiously, formulating its recourse to equity as
fulfilling or supplementing the law rather than in terms of opposition to the
law.39 This prophylactic approach did not preserve the ICJ from criticisms,40
and there are authors who discuss equity as distinct from the law.41
Whilst the opposition between equity and law can prove unpalatable on
many a ground, different functions of equity are typically placed on a con-
tinuum between perfect identity with the law (infra legem) and effective de-
parture from it (contra legem). For example, teleological interpretation that
introduces equitable considerations can be seen as consonant with the law if its
purpose is to reconcile the letter of the law with its spirit but it may also be seen
as contra legem interpretation –​or as nonapplication of the law. However, this
book argues that what is canvassed as a digression from the law is a departure
from the mere letter of the law. Equity is a general principle of international law
and as such it is applicable in international relations. The relationship between
equity and law, and equity as a source of law, are assessed in Chapter 6.
The book will leave aside the age-​old philosophical discussion about the
relationship between law and justice but the relationship between equity and
justice and, especially, law and equity is fundamental to any understanding of
the function of equity in international law.

II. Scope of the Book

A. Overall Purpose

The book provides a systematic and comprehensive study of the role of eq-
uity in contemporary international law, while challenging some unquestioned
assumptions about it. One of them is the common premise that equity is an

38 Diversion of Water from the Meuse (Netherlands v Belgium) (Individual Opinion Hudson) PCIJ

Series A/​B No 70 (28 June 1937) [322].

39 Rosenne (n 33) 204.
40 For the criticisms, see ch 3, section IV The International Court of Justice.
41 Eg Robert Jennings, ‘Equity and Equitable Principles’ (1986) XLII ASDI 27, 30.
 Scope of the Book 7

extra-​legal concept operating at a remove from law –​or an appeal to natural

justice –​a position that is disproved in this book. Since equity is polysemous
and, as a form of particularised justice, circumstance-​specific and malleable,
the book does not attempt to define it but explores the kinds of function that it
assumes in international law.
There is a common approach to equity across a number of international
courts and tribunals and the book documents it for the first time in a detailed
comparative setting. International law has never been so important. The body
of judicial and arbitral case law is larger and more varied than it had been: while
international adjudication is still concerned with land and maritime boundary
delimitation, new disputes arise from conflicts relating to the distribution
of wealth and the exercise of regulatory power within states.42 The boom of
investor-​state disputes has produced a rich case law that tends to be ignored in
public international law scholarship and has certainly not previously been con-
sidered in any general analysis of equity. Investment decisions can make an ap-
preciable contribution to the development of international law, if only because
of their sheer number and the variegated issues they address. The book draws
extensively on this case law, especially in Part III. Furthermore, equitable con-
siderations present in the reasoning of international courts and tribunals have
been integrated in conventional law,43 and new avenues to the application of
equity are opened constantly.
The book covers a number of fields of public international law, including
new fields of international law. Modern international law is increasingly con-
cerned with ‘matters internal to the state’, such as the protection of the envir-
onment.44 Such new fields have generally been left outside the study of equity.
Little is known for instance about equity in international space law or in inter-
national cultural heritage law. The book further questions the premise that eq-
uity is relevant only when called by its proper name and explores it even when
camouflaged with its various manifestations. The tendency to disregard equity
unless expressly mentioned has carved out of the field very significant develop-
ments in international law in the last forty years. It has also led to a fragmen-
tation of our understanding of equity. For example, to regard the clean hands
doctrine as part of equity is conducive to appreciably different exegeses of both
the doctrine and equity than to consider that it is something apart. The book
turns to such variations on equity.

42 James Crawford, ‘International Law and the Rule of Law’ (2003) 24(3) Adelaide LRev 3, 7.
43 See ch 6, section IV A Treaty Law.
44 Crawford (n 42) 7.
8 Introduction

Ultimately, evolutions in international law mean that a set of contemporary

issues have yet to be addressed. If earlier studies paid considerable attention to
matters such as under what conditions and with what limitations international
courts and tribunals invoked equity, the field has moved on. New questions
abound, while some old questions remain unanswered. Does equity have a par-
ticular role in international law? Is equity distinct from law? Or is it a different
kind of animal, displaying a different timbre; a predominantly interpretive
element that belongs properly to the sphere of judicial discretion? Is applica-
tion of equity compulsory or is it a mere appurtenance of such discretion? Can
equity’s use or non-​use enter the pale of the law through masterful legerdemain?
What role can distributive equity play in the context of climate change? In the
end, are we too sophisticated to resort to equity45 or is it a necessary complement
of the international legal system? The book provides answers to such questions,
drawing new conclusions from issues that were thought to have been settled.
That equity is both appropriate and necessary in international law is the over-
arching thesis of this book. Focusing on the legal concept that is equity, which it
perceives as an imperative of justice, the book argues that international courts
and tribunals are bound to apply it, since equity is a source of international law.
For this reason, the book breaks with the traditional understanding of a type
of equity that opposes the strict letter of the law and suggests that to speak of
an equity contra legem is a contradiction in terms. By the same token, the book
draws a clear distinction between the ex aequo et bono mandate and other ap-
plications of equity. Abuse is possible, but this is unrelated to equity; rather it
is a corollary of international judicial and arbitral decision-​making. Equity’s
relatively inconspicuous presence should not deceive; its application, in the law
of the sea as in other fields of public international law, spans turbulent depths.
It is the purpose of this book to explore these and provide a new perspective on
equity.

B. Coverage of International Courts and Tribunals

This book is concerned with equity in international law. However, it does not pur-
port to cover all of international law. It focuses on public international law and
confines itself to equity in the practice of four types of international courts or tri-
bunals: (1) the International Court of Justice and its forerunner the Permanent
Court of International Justice; (2) adjudicative bodies under Part XV of the United

45 Alfred Denning, ‘The Need for a New Equity’ (1952) 5(1) Current Legal Problems 1, 8.
 Scope of the Book 9

Nations Convention on the Law of the Sea (UNCLOS), notably the International
Tribunal for the Law of the Sea (ITLOS); (3) claims commissions and interstate ar-
bitration tribunals; and (4) investment arbitration tribunals, chiefly tribunals op-
erating under the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States (ICSID Convention). The book has selected
these courts and tribunals because they are broadly based on the same model
and display appreciable commonalities in their approach to equity. Adjudicative
bodies under (2) chiefly hew to the model of the ICJ. Without denying the differ-
ences between international courts and arbitral tribunals, similarities to the same
model are observed, at least in part, in interstate arbitration tribunals and invest-
ment tribunals constituted under the ICSID Convention.46 For instance, the stat-
utes of these courts and tribunals provide for adjudication ex aequo et bono if the
parties so agree47 or, in the case of claims commissions and some early interstate
tribunals, decision-​making in accordance with ‘absolute equity’.48 Interstate arbi-
tral tribunals and in recent times arbitration tribunals have famously decided on
the basis of an ex aequo et bono mandate, even if the ICJ, the PJIJ, and ITLOS have
not.
The book leaves outside its scope a number of other adjudicative bodies –​
and sub-​fields of international law –​that are worthy of study but that do not
follow the same model. These include international criminal tribunals, regional
human rights courts, the adjudicative organs of the World Trade Organization
(WTO), and regional economic integration courts, such as the Court of
Justice of the European Union (CJEU) and the Court of Justice of the Andean
Community. Because of their subject-​matter, international criminal courts and
regional human rights’ courts engage in different kinds of equitable consid-
erations. These courts are focused on the individual. To be sure, some paral-
lels exist between human rights courts and investment tribunals: for instance,
both operate on the basis of international instruments that guarantee the pro-
tection of property to non-​state parties. However, their rationale is different.

46 Although the nature of investment arbitration as a public, private (ie commercial), or hybrid mode

of dispute settlement is debated, according to Aron Broches, General Counsel of the World Bank from
1951 to 1979 and ‘principal architect’ of the ICSID Convention (Christoph Schreuer and others, The
ICSID Convention: A Commentary (2nd edn, CUP 2009) 2), the Convention should be distinguished
from commercial arbitration; ‘[t]‌he parallel if any lay with the International Court of Justice’, see ICSID,
History of the Convention (vol 2 pt 1, 1968) 414, 423.
47 Eg ICJ Statute art 38(2); PCIJ Statute art 38(4); UNCLOS art 293(2); ICSID Convention art 42(3).

On ex aequo et bono, see ch 7.

48 Eg Jay Treaty art 7; Spain-​United States Friendship, commerce and navigation (FCN) treaty (1795)

art XXI; Convention between the United States, Germany, and Great Britain relating to Settlement of
Samoan Claims (1899) art 1. This is also the case of Venezuelan mixed-​claims commissions established
under the Washington Protocols, see ch 3, section II Mixed Claims Commissions and Early Arbitration
Tribunals.
10 Introduction

While human rights’ treaties are in a sense anthropocentric, the purpose of in-
vestment protections is to promote and protect foreign investment. That these
courts are excluded from the book is in no way to deny the tremendous contri-
butions their jurisprudence has made to equity and equitable considerations.
Notably, the need for equity was to some extent quenched by the emergence of
human rights law;49 and we owe much of our current understanding of pro-
portionality to the development of this concept in the jurisprudence of the
European Court of Human Rights. Proportionality is discussed in this book
as a manifestation of equity. To an important extent equitable considerations
before human rights courts, criminal courts, and even before WTO panels and
the Appellate Body revolve around procedural equity, notably the notions of
fair trial50 and due process.51 This book is properly interested in substantive
equity, although some notions of procedural equity are touched upon52 when
they cannot be clearly distinguished from substantive equity or for the sake of
completeness of a particular discussion.53 Equity in the WTO itself has been
the focus of a recent study.54 Finally, regional economic integration courts have
been excluded because of their sui generis nature: although creatures of inter-
national law, these courts function essentially as domestic courts safeguarding
an autonomous legal order.55

49 Thomas Cottier, ‘Equity in International Law’ in Thomas Cottier, Shaheeza Lalani, and Clarence

Siziba (eds), Intergenerational Equity (Brill Nijhoff 2019) 18.

50 Eg David Weissbrodt and Rüdiger Wolfrum (eds), The Right to a Fair Trial (Springer 1997); Piero

Leanza and Ondrej Pridal, The Right to a Fair Trial (Kluwer Law International 2014); Ryan Goss,
Criminal Fair Trial Rights (Hart Publishing 2014); Catherine Namakula, Language and the Right to Fair
Hearing in International Criminal Trials (Springer 2016).
51 Eg Anastasios Gourgourinis, Equity and Equitable Principles in the World Trade Organization

(Routledge 2016) 94–​134; John Gaffney, ‘Due Process in the World Trade Organization’ (1999) 14(4)
AU ILR 1173; Andrew Mitchell, ‘Due Process in WTO Disputes’ in Rufus Yerxa and Bruce Wilson
(eds), Key Issues in WTO Dispute Settlement (WTO/​CUP 2005).
52 Eg in chs 2, 4, 8.
53 The distinction between substantive and procedural equity is not easy to draw. Eg in Jan Mayen

(Weeramantry) (n 29) [25]–​[27], Judge Weeramantry viewed the fact that the Court takes a host of
factors into account in delimiting maritime boundaries as an element of procedural fairness, and so
procedural equity.
54 Gourgourinis, Equity (n 51).
55 Eg Catharine Titi, ‘Opinion 1/​17 and the Future of Investment Dispute Settlement: Implications

for the Design of a Multilateral Investment Court’ in Lisa Sachs, Lise Johnson, and Jesse Coleman
(eds), Yearbook on International Investment Law & Policy 2019 (OUP 2021); Ramses Wessel and
Steven Blockmans (eds), Between Autonomy and Dependence (Asser 2013); Jenö Czuczai, ‘The
Autonomy of the EU Legal Order and the Law-​Making Activities of International Organizations’ (2012)
31(1) YB of European Law 452; Bruno de Witte, ‘European Union Law: How Autonomous is its Legal
Order?’ (2010) 65(1) Zeitschrift für öffentliches Recht 141; Gráinne de Búrca, ‘The European Court
of Justice and the International Legal Order After Kadi’ (2010) 51(1) Harvard ILJ 1; Karen Alter and
Laurence Helfer, Transplanting International Courts: The Law and Politics of the Andean Tribunal of
Justice (OUP 2017) 106–​108.
 Outline of the Book 11

Limiting the coverage of the book in this manner inevitably narrows the
generality of its conclusions but it has the merit of permitting an in-​depth
examination of equity as to the selected courts and tribunals and respective
fields of international law. Occasional references will be made to the excluded
courts but the latter will not be the focus of specific study.

III. Outline of the Book

The book is structured in the following manner. It consists of three parts

and comprises ten chapters. Following this introduction, Part I entitled
‘Preliminary Matters’ introduces the topic of equity and places it in context.
Chapter 2 canvasses the origins of equity. Our understanding of the modern
concept of equity can be traced as far back as ancient Greece, and the writ-
ings of Aristotle. Subsequently, equity was relayed to Roman law, where it was
for the most part associated with the ius honorarium developed by the praetor
and other lesser magistrates. Later it formed part of canon law and pervaded
progressively legal systems around the world. This chapter considers equity’s
Greek and Roman law origins tracing a journey from Aristotle to Cicero,
bridging these early years to the Middle Ages and the late modern period, and
equity in English law. It completes the overview of the historical foundations of
equity with later developments until the end of the 19th century. The purpose
of the chapter is to show equity’s continuity in time and across legal systems,
which serves as a stepping stone to the argument presented later in the book
that equity is a source of international law. The chapter chronicles equity’s ten-
dency to harden into strict law and explains that the distinct ways in which we
make sense of equity owe something to its historical evolution in our respective
legal systems. Ultimately, the chapter highlights equity’s trajectory from muni-
cipal legal systems to international law.
Chapter 3 delves into equity before international courts and tribunals and
studies the jurisprudential evolution of the concept. Equity was introduced in
international decision-​making through claims commissions and early arbitra-
tion tribunals, whereupon it started to be incorporated in the jurisprudence of
international courts. Today, equity in international law is often associated with
judgments involving maritime boundary delimitation. Recourse to equitable
considerations in this field evolved over time, hardening into something very
much approaching a method of equitable delimitation. However, iconic a status
though the treatment of equity in the delimitation of maritime boundaries may
have reached, equity is relevant to all of international law. In effect, some of the
12 Introduction

most interesting applications of equity have been made by interstate tribunals

deciding other types of disputes. The chapter reviews ‘classic’ pronouncements
on equity by international courts and tribunals and appraises this jurispruden-
tial narrative that conditions how we perceive equity in international law.
Part II surveys ‘Equity in General’. Chapter 4 explores the rationale and
ethical foundations of equity in international law and suggests that the over-
arching purpose of equity is to do justice. The chapter considers in turn eq-
uity as corrective, distributive, and supplementary justice. Under the heading
of corrective justice, it canvasses equity as individualised justice and as justice
that tempers the rigour of law. Distributive justice is conceptualised in rela-
tion to the allocation of resources and the sharing of benefits and burdens, the
common heritage of mankind, intergenerational equity, and equitable rep-
resentation in the composition of international bodies. The chapter further
studies the role of equity as supplementary justice, when legal rules are absent.
The analysis exposes certain roles of equity as justice, notably equity as a cor-
rective and as individualised justice, that inform the entire book and it reveals
justice as the backbone and rationale for the broader need for equity.
The traditional typology of equity is critically addressed in Chapter 5.
Following an initial inquiry into the distinction between equity infra legem,
praeter legem, and contra legem, the chapter turns to its limitations. It argues
that, while this taxonomy offers a conceptual framework that can help us com-
prehend three roles that equity can assume, it remains a heuristic construct;
strict divisions between different kinds of equity are unsustainable. In addition,
the traditional breakdown of equity fails to account properly for the relation-
ship between contra legem equity and law. Against this background, the chapter
reviews a classic example of contra legem equity in Antigone and revisits the
concept. It concludes that the most important flaw of the tripartite typology is
that it does not account for the fact that equity may never truly function contra
legem, since equity is an element of law.
Chapter 6 documents the complex relationship between equity and inter-
national law building on the findings of the preceding chapter and analyses
equity as a source of law. The thrust of its argument is that equity is a source of
international law, which means that international adjudicators have the power
to apply it. The chapter critically examines the position that equity may be per-
ceived as distinct from international law. While conceding that the felicitous
conjunction of law and equity is uniquely challenging, it suggests that equity
can only be conceived as forming part of the law. To better frame this argu-
ment, the chapter outlines the different functions of equity as a principle and
as a rule. This lays the groundwork for the discussion of equity as a source of
 Outline of the Book 13

international law. The chapter commences this part of the analysis by consid-
ering equity expressly embedded in conventional law, notably in the law of the
sea, in international water law, in international investment law, in environ-
mental law, in international cultural heritage law, and in international space
law. Subsequently, the chapter canvasses customary international law, general
principles of law, and general principles of international law. It posits that eq-
uity is a source of international law, even when it is not laid down in treaty law.
It is a general principle of international law of a customary law nature, having
metamorphosed from a general principle of law through its repeated applica-
tion by international courts and tribunals and reliance upon it by states in judi-
cial and arbitral proceedings.
Part III of the book addresses ‘Specific Aspects of Equity’. Chapter 7 opens
the discussion with a study of the ex aequo et bono mandate found in a number
of court statutes and arbitration rules, such as in Article 38(2) of the Statute of
the ICJ and Article 42(3) of the ICSID Convention. The chapter reviews the un-
willingness of disputing parties to submit to ex aequo et bono jurisdiction and
the scepticism displayed by courts about using it. It contrasts this wariness with
investment arbitration, which claims the few known decisions to have been
rendered ex aequo et bono in contemporary public international law. Next,
the chapter surveys the types of dispute for which ex aequo et bono decision-​
making is appropriate, such as cases where the international legal framework is
incomplete or uncertain. Finally, the chapter refutes the contention that juris-
diction ex aequo et bono is incompatible with the judicial function. Overall, the
chapter argues that the power to decide ex aequo et bono must not be conflated
with equity that an international court or tribunal can apply anyway without
the parties’ agreement and stresses that ex aequo et bono adjudication is legal
adjudication. The experience with ex aequo et bono decisions testifies to tribu-
nals’ reluctance to depart from positive law, although the uncertainty inherent
in this type of decision-​making and the fact that it invites digressions from the
legal rights of one of the parties make it likely that it will remain marginal.
Chapter 8 analyses variations on equity and related concepts that originate
in equity, including objections grounded in equity. In particular, the chapter
studies equality, reasonableness, estoppel, acquiescence, good faith, unjust en-
richment, the clean hands doctrine, abuse of rights, and proportionality. It sug-
gests that some of these concepts, such as the clean hands doctrine and abuse
of rights, can be seen as permissible applications of contra legem equity without
the parties’ agreement –​with the caveat that equity cannot truly exist contra
legem. The chapter reveals the extent to which equity is inherent in the rea-
soning of the international adjudicator and pervades international law.
14 Introduction

The following chapter (Chapter 9) analyses recourse to equity when adju-

dicators determine compensation and decide on costs. Just as equitable con-
siderations can inform a court or tribunal’s decision in the early phases of the
adjudicatory process, so equity may have a role to play in fixing the amount of
compensation, in allocating costs, and in deciding whether to grant security
for costs, although its significance in this area is generally overlooked. The
chapter commences by tracking equity in the reasoning of international courts
and tribunals leading to the award of compensation. It continues with deci-
sions relating to costs in investment arbitration. In particular, the chapter re-
views equity in decisions on the apportionment of costs between the disputing
parties and on security for costs, a provisional measure in whose application
equitable considerations are noticeably prominent. Chapter 10 concludes the
book and summarises its main findings.
 PART I
PRE L IMINA RY M AT T E R S
 2
Origins of Equity

I. Introduction

Our understanding of the modern concept of equity can be traced at least as

far back as ancient Greece, although some accounts identify the presence of in-
choate or rudimentary equitable principles in ancient Egypt and in the civilisa-
tions of the Tigris-​Euphrates basin since the 21st century BCE.1 Unlike early
law, which was concerned with general human confrontations and was inflex-
ible, as society’s focus began to shift to the individual, rules of law acquired some
flexibility, which rendered them malleable in circumstances that digressed from
the general rule.2 So it was that equity started to permeate the law.
In Greece, equity was expressed by the term epieikeia (ἐπιείκεια),3 which
properly translates as clemency and includes an element of moderation.4 The
function of equity as we understand it today was articulated by Aristotle.5 The
Romans talked of aequitas, which for the most part was associated with the ius
honorarium developed by the praetor and other lesser magistrates.6 Aequitas
in Roman law sometimes translates as ‘equality’,7 while clemency is given by

1 Neil Snyder, ‘Natural Law and Equity’ in Ralph Newman (ed), Equity in the World’s Legal Systems

(Bruylant 1973) 34–​35. See further Georg Schwarzenberger, ‘Equity in International Law’ (1972) YB
World Affairs 346, 348–​350, for a discussion of equity in Hittite state practice in the 14th and 13th cen-
turies BCE.
2 Ralph Newman, ‘Introduction’ in Newman, Equity in the World’s Legal Systems (n 1) 17.
3 Raymond Marcin, ‘Epieikeia; Equitable Lawmaking in the Construction of Statutes’ (1978) 10

Connecticut LRev 377, 382–​383, explaining that the term epieikeia entered Anglo-​American jur-
isprudence, and by inference the English language, owing to medieval translators’ predilection for
transliteration.
4 John Tasioulas, ‘The Paradox of Equity’ (1996) 55(3) CLJ 456, 462; Stephen DeVine,

‘Polyconnotational Equity and the Role of Epieikeia in International Law’ (1989) 24 Texas ILJ 149, 225.
5 See ch 1 text to n 12.
6 Willem Zwalve and Egbert Koops, ‘Introduction: The Equity Phenomenon’ in Egbert Koops and

Willem Zwalve (eds), Law & Equity: Approaches in Roman Law and Common Law (Martinus Nijhoff
2014) 19; William Buckland and Arnold McNair, Roman Law and Common Law (2nd edn, revised by
FH Lawson, CUP 1952) 3; George Mousourakis, A Legal History of Rome (Routledge 2007) 66.
7 Eg Henry Sumner Maine, Ancient Law (16th edn, John Murray 1897) 58–​61; María José Falcón y

Tella, Equity and Law (Peter Muckley tr, Martinus Nijhoff 2008) 22–​23. It was said that Roman law ‘dis-
cerned the idea of equality’ in equity, North Sea Continental Shelf (Separate Opinion Ammoun) [1969]
ICJ Rep 101 [10], citing Giorgio del Vecchio. For the etymology of aequitas, see Antonio Guardino,
Pagine di diritto romano IV (Jovene 1993) 200–​203.

The Function of Equity in International Law. Catharine Titi, Oxford University Press. © Aikaterini Titi 2021.
DOI: 10.1093/​oso/​9780198868002.003.0002
18 Origins of Equity

the term clementia.8 In the Middle Ages, the development of equity stalled, re-
volving especially around the reception of Aristotle in contemporaneous texts,
including religious writings. Evolutions in the English Court of Chancery to-
wards the end of this period breathed new life into the concept, an evolution
that echoed the earlier development of Roman aequitas.9
If equity in international law must be plainly distinguished from its histor-
ical origins, the latter, including notably Roman aequitas and English equity,
which leave the sphere of philosophy or theology and markedly enter the law,
constitute evidence of state practice on equity. They point to the presence of
equitable considerations in municipal legal systems since antiquity. What this
means for equity as a source of international law, we will see in Chapter 6. The
origins of equity are so varied and rich that this chapter merely foregrounds
some important historical foundations of equity, giving a snapshot of various
stages of the evolution of the concept. While a full historical study is outside
the scope of the book, this narrative serves to highlight the continuity of eq-
uity over time and across legal systems but also the way it metamorphoses and
influences the way we think about law. Beginning with Greece and Rome, the
chapter turns to the Middle Ages and the late modern period, English law, and
finally equity in more recent times.

II. Greek and Roman Law Origins:

From Aristotle to Cicero

In Greece, equity is traceable to Homer’s epic rhapsodies The Iliad and Odyssey
and, a handful of centuries later, to the poetic writings of Sophocles and
Hesiod, the rhetoric of Demosthenes, Gorgias, Isocrates, and Lysias, the his-
torical writings of Thucydides, and the philosophy of Plato, among others.10
But nowhere is equity so indomitably argued as in the writings of Aristotle.11

8 Seneca, De Clementia; cf the respective use of the term clemency (lenitas or clementia) and aequitas

in Cicero, Epistulae ad Quintum Fratrem, Book I, I:21 (lenitas), I:25 (clementia), and I:45 (aequitas).
9 Charles Brice, ‘Roman Aequitas and English Equity’ (1913–​ 1914) 102 Georgetown LJ 16;
Francesco Francioni, ‘Equity in International Law’ (2013) MaxPlanckEPIL, para 1; Edward Re, ‘The
Roman Contribution to the Common Law’ (1961) 29 Fordham LRev 447; for a comparison of the two
systems, see Falcón y Tella (n 7) 56–​58; cf William Buckland, Equity in Roman Law (U London Press
1911); Alan Watson, ‘Roman Law and English Law’ (1990) 36(2) Loyola LRev 247.
10 Darien Shanske, ‘Four Theses: Preliminary to an Appeal to Equity’ (2005) 57(6) Stanford LRev

2053, 2056–​2057; Falcón y Tella (n 7) 15; Eric Havelock, The Greek Concept of Justice (HUP 1978)
254–​255.
11 It is no wonder then that much ink has been spilled on Aristotelian equity. See eg Shanske, ‘Four

Theses’ (n 10); Darien Shanske, ‘Revitalizing Aristotle’s Doctrine of Equity’ (2008) 4 Journal of Law,
Culture and the Humanities 352; Falcón y Tella (n 7) 12–​22; Anton-​Hermann Chroust, ‘Aristotle’s
Conception of Equity (Epieikeia)’ (1942) 18(2) Notre Dame LRev 119; John Triantaphyllopoulos,
 Greek and Roman Law 19

There is widespread agreement that our modern perception of equity has its
origins in Aristotle.12 Aristotle canvassed equity or the equitable (τὸ ἐπιεικὲς,
to epieikes) extensively. In his Nicomachean Ethics, he wrote:

[E]‌quity, though just, is not legal justice but a rectification of legal justice. This
is because all law is universal yet some cases cannot correctly fall into uni-
versal statements. When then it is necessary to use universal statements but it
is not possible to do so correctly, the law takes account of the majority of cases
yet it also recognises the possibility of error. . . . So when the law makes a uni-
versal statement and a particular case arises that falls outside this statement,
it is appropriate to correct the legislator’s omission or error due to the gener-
ality of the statement by acting as the legislator would have acted if he were
present and had known. Therefore, the equitable is just and, in some respects,
it is better than just; not in general but because of the mistakes that arise due
to the general character of the law. And this is the nature of the equitable, a
correction of the law, where the law is flawed due to its universal character.13

Aristotle repeats this idea that the law is couched in general terms and cannot
foresee all individual cases in other writings.14 Equity then is interposed be-
tween a strict application of the law and the individual case.15 In Rhetoric,
Aristotle provides the following example. The law prescribed that, if a man
bearing a ring lifted his arm to strike, he should be punished.16 By such terms
the law targeted those presumed to bear arms against the city-​state,17 therefore
equity would prevent the punishment from being meted out literally to any
man lifting a ring-​bearing arm when such a gesture was unrelated to an attack
on the city-​state.18 In Rhetoric, Aristotle further canvasses equity as applied by

‘Aristotle’s Equity’ in Alfredo Mordechai Rabello (ed), Aequitas and Equity (Sacher Institute 1997); John
Triantaphyllopoulos, ‘Aristotle’s Equity and the Doctrine of the Mean’ (1989) 1 Syllecta Classica 43;
Roger Shiner, ‘Aristotle’s Theory of Equity’ (1994) 27 Loyola of Los Angeles LRev 1245; Alan Beever,
‘Aristotle on Equity, Law and Justice’ (2004) 10(1) Legal Theory 33; Francesco D’Agostino, Epieikeia: il
tema dell’equità nell’antichità greca (Giuffrè 1973); Matthew Berry, ‘More Just than Justice: Aristotle’s
Account of Equity in the Nicomachean Ethics’ (unpublished, on file with the author).

12 Mark Weston Janis, ‘The Ambiguity of Equity in International Law’ (1983) 9(1) Brooklyn JIL 7, 7;

Shanske, ‘Four Theses’ (n 10) 2056, 2059ff.

13 Aristotle, Nicomachean Ethics, Book V, ch 10, 1137b, 3ff (author’s translation, based in part on the

translation by H Rackham, Loeb Classical Library 1926).

14 Eg Aristotle, Politics, Book II, ch 8, 1269a, 10; Aristotle, Rhetoric, Book I, ch 13, 13–​14; cf Aristotle,

Topica, Book VI, 141a, 15.

15 See ch 4, section II A Equity as Individualised Justice.
16 Aristotle, Rhetoric, Book I, ch 13, 14.
17 Falcón y Tella (n 7) 21.
18 Aristotle, Rhetoric, Book I, ch 13, 14.
20 Origins of Equity

the adjudicator.19 He draws a distinction between the arbitrator and the judge
and considers that, in contrast with judges who look only to the law, arbitrators
take account of equity;20 if arbitrators are appointed, equity will prevail.21 The
idea that arbitrators are better suited than judges to apply equity is recurrent
even in contemporary scholarship.22
More broadly, Aristotle distinguishes between what is unfair and what is
unlawful and suggests that while what is unlawful may not always be unfair,
what is unfair is always unlawful.23 Otherwise stated, what is inequitable
cannot be lawful. To refer to what is unfair Aristotle uses the term ‘ἄνισον’
(anison), which in effect means ‘unequal’ or ‘imbalanced’. He explains that
what is lawful and equal is just, and what is unlawful and unequal is unjust.24
While Aristotle associates equality with justice, he also identifies the need
for proportionality.25 It has been said that the Greeks preferred to apply the
law broadly, even risking an injustice (dura lex sed lex, as the Romans would
put it),26 rather than encroach on its generality.27 Equity in Aristotle aims to
correct such injustice.28
From the Greek philosophical and rhetorical tradition, equity carried
over in Roman law.29 In the Late Republic, equity figured prominently in the
writings and oratory of Marcus Tullius Cicero30 and is routinely associated

19 ibid Book I, ch 13, 19.

20 ibid.
21 ibid.
22 Eg Yoram Dinstein, ‘The Interaction of International Law and Justice’ (1986) 16 IYHR 9, 39.
23 Aristotle, Nicomachean Ethics, Book V, ch 2, 1130b.
24 ibid Book V, ch 1, 1129a.
25 ibid Book V, ch 3, 1131a.
26 cf the attitude of Socrates, accepting his death sentence although unjust, eg Plato, Apology, 35c;

Plato, Crito, 54c. See further RE Allen, Socrates and Legal Obligation (U Minnesota Press 1981) 22 (‘In
equity Socrates was innocent’); Rex Martin, ‘Socrates on Disobedience to Law’ (1970) 24(1) Review of
Metaphysics 21; Frances Olsen, ‘Socrates on Legal Obligation’ (1984) 18 Georgia LRev 929; Chris Isaac,
‘Socrates and the Public Laws of Athens’ (1994) 4 Aporia 45; Brett Benson, ‘Rule of Law in Plato’s Crito
and Apology’ (1998) 8 Aporia 1; Anthony D’Amato, ‘Obligation to Obey the Law: A Study of the Death
of Socrates’ (2010) Northwestern U School of Law Faculty Working Papers No 111.
27 Falcón y Tella (n 7) 20.
28 See ch 4, section II Equity as Corrective Justice.
29 Hermagoras of Temnos, a Greek rhetorician of the Rhodian School and a teacher of rhetoric in

Rome, is often associated with this process. The Hermagorean tradition opposed the letter of the law
to equity. Matthijs Wibier, ‘Cicero’s Reception in the Juristic Tradition’ in Paul Du Plessis (ed), Cicero’s
Law: Rethinking Roman Law of the Late Republic (Edinburgh University Press 2016) 118; Martin
Bloomer, ‘Roman Declamation’ in William Dominik and Jon Hall (eds), A Companion to Roman
Rhetoric (Wiley-​Blackwell 2007) 300; John Vaughn, ‘Law and Rhetoric in the Causa Curiana’ (1985)
4(2) Classical Antiquity 208, 208; Albrecht Dihle, The Theory of Will in Classical Antiquity (U California
Press 1982) 138; Miklós Könczöl, ‘Law, Fact and Narratives in Ancient Rhetoric’ (2008) Intl Journal for
the Semiotics of Law 21, 29, 32; Brice (n 9) 19.
30 Eg Cicero, De Inventione, Book I, xi 14; Cicero, De Oratore, Book I, xxxviii 173; Cicero, De Officiis,

Book I, 33.
 Greek and Roman Law 21

with him,31 although the Ciceronian tradition is not the beginning of

Roman equity.32 Discussing summum ius, summa inuria, Cicero instanced
a truce called between Sparta and Argos for thirty ‘days’. The Spartan king
Cleomenes ambushed the Argives by ‘night’, killing some and taking others
as prisoners. When his disgruntled enemies confronted him with the re-
proach that he had breached his oath, he riposted that he had never agreed
not to attack by night, since the truce stipulated ‘days’.33 Cicero’s approach
to equity evolved later in his life. Until about the age of sixty, Cicero viewed
equity as separate from law and justice; from about that time he accorded
greater importance to philosophy, which led him to perceive equity, law, and
justice as one.34
Equity was expressed in Roman praetorian law, that is, the ius praetorium
or ius honorarium.35 The praetor (urbanus) as a source of equity must be
understood more as a lawmaker than as a judge.36 Upon taking office, the
praetor issued an edict introducing the actions and remedies he would ac-
cept and announcing the principles that would guide his actions.37 Formally,
praetorian edicts were valid for one year but they tended to be renewed from
one year to the next with new praetors typically adding to the actions and
remedies established by their predecessors.38 Praetorian law was intended
to soften the rigidity of the ius civile, which was a combination of statutory
and customary law.39 In the formulary procedure –​so named because of
the formula, a document containing a description of the dispute and the
praetor’s instructions to the judge assigned to hear the case –​the praetor was
able to offer three principal kinds of remedies for cases not covered by the
ius civile.40 The actio in factum was based on the facts of a particular case; the

31 Eg Jill Harries, ‘Cicero and the defining of the Ius Civile’ in Gillian Clark and Tessa Rajak (eds),

Philosophy and Power in the Graeco-​Roman World (OUP 2002) 59ff; Falcón y Tella (n 7) 32–​34; Shanske,
‘Four Theses’ (n 10) 2060–​2061; William Buckland, A Text-​Book of Roman Law from Augustus to
Justinian (3rd edn, revised by Peter Stein, CUP 1963) 55.
32 Wibier (n 29) 118; Bloomer (n 29) 300.
33 Cicero, De Officiis, Book I, 33. In reality, the truce was for seven days. The incident is reported in

Plutarch, Apophthegmata Laconica, Of Cleomenes the Son of Anaxandridas, 45. Cicero’s and Plutarch’s
versions of the story do not coincide perfectly.
34 See in general Georges Ciulei, ‘Les rapports de l’équité avec le droit et la justice dans l’œuvre de

Cicéron’ (1968) 48 Revue historique de droit français et étranger (Quatrième série) 639, 639–​647.
35 Buckland, Equity (n 9).
36 Zwalve and Koops (n 6) 19; Buckland, Equity (n 9) 5; cf Buckland and McNair (n 6) 3.
37 Zwalve and Koops (n 6) 19; Peter Stein, ‘Equitable Principles in Roman Law’ in Newman, Equity in

the World’s Legal Systems (n 1) 76; Mousourakis (n 6) 13.

38 Zwalve and Koops (n 6) 19; Stein (n 37) 76; Mousourakis (n 6) 13–​14; Buckland and McNair (n 6) 3.
39 Zwalve and Koops (n 6) 19; Stein (n 37) 76.
40 Mousourakis (n 6) 65–​66. See further William Turpin, ‘Formula, Cognitio and Proceedings Extra

Ordinem’ (1999) 46(3) Revue internationale des droits de l’antiquité 499, 506ff.
22 Origins of Equity

actio utilis was used to provide remedies analogous to already existing rem-
edies; the actio fictitia provided for an action on the basis of a counterfac-
tual.41 Roman equity is tethered to such intercalary remedies. Yet, as in the
case of modern equity, Roman equity did not set aside the ius civile, rather it
bypassed it.42
As time wore on, the independent role of praetorian law diminished until
it fell into abeyance during the reign of Emperor Hadrian with the Julian co-
dification.43 The codification ended the division between the ius civile and
the ius honorarium.44 The equitable principles that underlay the praetorian
edicts were subsumed in the codification,45 which became known as the
‘perpetual edict’ (edictum perpetuum).46 The tradition of equity lived on in
the writings of Roman jurists and only later, in the middle of the 3rd century
CE, is Roman equity said to have ceased to develop.47
Modern international law owes a debt of gratitude to Roman equity.
A number of Roman equitable remedies are part of the international law acquis
today. The equitable Roman remedy of the interdict48 (corresponding to the
English Chancery’s injunction)49 is reflected in the ability of current inter-
national courts and tribunals to issue provisional measures.50 The equitable
remedy of restitutio in integrum51 is part of the contemporary law on state
responsibility.52 These remedies are so well-​rooted in the international law
mainstream that we no longer necessarily perceive them as manifestations of
equity. The impact of Roman equitable rights, such as laches,53 acquiescence,

41 Mousourakis (n 6) 66; Zwalve and Koops (n 6) 19; Saskia Roselaar, ‘Cicero and the Italians’ in Du

Plessis (n 29) 147; Craig Anderson, Roman Law (Dundee University Press 2009) 103–​106.
42 Buckland and McNair (n 6) 4.
43 Mousourakis (n 6) 127.
44 Kaius Touri, ‘Hadrian’s Perpetual Edict’ (2006) 27 Journal of Legal History 219, 227; Thomas

Glyn Watkin, An Historical Introduction to Modern Civil Law (first published Ashgate 1999, Routledge
2017) 42.
45 Mousourakis (n 6) 127.
46 Touri (n 44); Watkin (n 44) 42.
47 Brice (n 9) 23.
48 Buckland, Equity (n 9) 25–​31.
49 ibid; George Spence, The Equitable Jurisdiction of the Court of Chancery (vol I, Lea/​Blanchard 1846)

673, referring to the Chancellor’s ‘praetorian jurisdiction’.

50 Eg Statute of the International Court of Justice (ICJ) art 41; Statute of the International Tribunal for

the Law of the Sea (ITLOS) art 25; Convention on the Settlement of Investment Disputes between States
and Nationals of Other States (ICSID Convention) art 47; ICSID Convention Arbitration Rules rule
39; Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL)
(2010/​2013) art 26; Cameron Miles, Provisional Measures before International Courts and Tribunals
(CUP 2017).
51 Buckland, Equity (n 9) 31–​37.
52 Attila Tanzi, ‘Restitution’ (2013) MaxPlanckEPIL, para 4; Borzu Sabahi, Compensation and

Restitution in Investor-​State Arbitration (OUP 2011) ch 2.

53 Buckland, Equity (n 9) 56–​60.
 Middle Ages to Late Modern Period 23

and estoppel must also be recalled. Acquiescence and estoppel are examined
in Chapter 8.

III. From the Middle Ages to the

Late Modern Period

The historical evolution of equity beyond antiquity and until modern times
largely revolves around the reception of Aristotle in later writings, including
religious texts. In the Middle Ages, Roman and canon law scholars known as
‘the glossators’54 contributed to an understanding of equity as a method of in-
terpretation, prioritising the letter of the law over its telos.55 Their successors,
the post-​glossators,56 reversed this practice by placing emphasis on the telos
of the law over its letter.57 The reception of Aristotelian equity in canon law
occurred especially with the work of the theologian Thomas Aquinas in the
13th century.58 Aquinas anchored equity in a natural divine law that limits
what laws a legislator may adopt.59 This equity, dubbed ‘canonical equity’ and
linked to compassion and benevolence,60 was seen as a ‘humanitarian virtue’
(‘misericordia’, ‘humanitas’, ‘pietas’, and ‘caritas’ are some of the terms men-
tioned).61 In this context, equity remained very much a moral value rather than
an element in the interpretation of law.62
In later years, equity became linked to the writings of a number of scholars.
Francisco Suarez and his De Legibus, ac Deo Leislatore, published in 1612, dis-
cussed equity as applicable in customary international law.63 Hugo Grotius and
his De Jure Belli ac Pacis, published in 1625, canvassed at length Aristotelian
equity.64 Samuel Pufendorf, and his Elementorum Jurisprudentiae, pub-
lished in 1672, also elaborated on Aristotelian equity situating it squarely in

54 Magnus Ryan, ‘Glossators and Post-​glossators’ in Peter Cane and Joanne Conaghan (eds), The New

Oxford Companion to Law (OUP 2008).

55 Falcón y Tella (n 7) 41.
56 The distinction between glossators and post-​glossators, also referred to as ‘commentators’, is some-

what arbitrary. The term ‘post-​glossators’ refers to law teachers from about the 1260s, Ryan (n 54).
57 Falcón y Tella (n 7) 41.
58 Marcin (n 3) 389–​392; Stephen DeVine, ‘The Concept of Epieikeia in the Chancellor of England’s

Enforcement of the Feoffment to Uses before 1535’ (1987) 21 U British Columbia LRev 323, 332–​334;
Shanske, ‘Four Theses’ (n 10) 2061–​2062.
59 Shanske, ‘Four Theses’ (n 10) 2062.
60 Falcón y Tella (n 7) 37.
61 ibid 34–​35.
62 ibid 34–​41.
63 DeVine, ‘Polyconnotational Equity’ (n 4) 224–​231.
64 Hugo Grotius, On the Law of War and Peace (AC Campbell tr, Jazzybee Verlag 2016), Book II, ch

16, para XXVI. For an analysis, see DeVine, ‘Polyconnotational Equity’ (n 4) 233–​236.
24 Origins of Equity

international law and arguing that the judge has a duty to apply it.65 Samuel
Rachel, another 17th-​century scholar, and his De Jure Naturae et Gentium,
published in 1676, considered equity as applicable in international law, since
the generality of international law means that it cannot cover every factual ma-
trix, which may lead to harsh outcomes in particular cases.66 Emer de Vattel
and his Le droit des gens ou principes de la loi naturelle, published in 1758, re-
garded equity as inherent in the power of government to mitigate the effects of
the rigorous application of law for reasons of public welfare.67
While the period stretching from the Middle Ages to the 18th century does
not reveal a grand evolution of the legal concept of equity, still medieval and
early modern antecedents are not devoid of interest. The legacy of the gloss-
ators and post-​glossators –​a corollary of their infatuation with Roman law and
Justinian’s Digest –​are the ‘codified and all-​encompassing’ civil law systems of
the Continent.68 The rigidity of these code systems was softened as equity was
instantly, ‘albeit mysteriously’, incorporated in them.69 To this day, in civil law
systems equitable principles are received into the general norms, as opposed
to forming a separate body of law as in the Anglo-​Saxon legal tradition –​they
are ‘universal constants of the legal norms’.70 Legal scholars’ engagement with
equity in this period testifies to the continued pertinence of the concept to law
and marks its importance to international law.

IV. Equity in English Law

If the evolution of the legal concept of equity seemingly slowed down in the
Middle Ages, English equity was an exception to this rule. With roots in
Roman law,71 English equity originated in the English Court of Chancery,
which began as the royal secretariat.72 As a member of the King’s Council and
head of this bureau, the Chancellor was from the beginning involved in the ad-
ministration of justice, since to commence an action in the common law courts
it was necessary to obtain a royal writ issued by this office.73 From the middle
65 DeVine, ‘Polyconnotational Equity’ (n 4) 236–​239.
66 ibid 231–​232.
67 ibid 239–​240.
68 Christopher Rossi, Equity and International Law (Transnational 1993) 38.
69 ibid.
70 Ralph Newman, ‘Equity in Comparative Law’ (1968) 17 ICLQ 807, 832.
71 See n 9.
72 John Baker, An Introduction to English Legal History (5th edn, OUP 2019) 107; DeVine, ‘The

Concept of Epieikeia’ (n 58) 326.

73 Baker (n 72) 107; Howard Oleck, ‘Historical Nature of Equity Jurisprudence’ (1951) 20(1) Fordham

LRev 23, 35; DeVine, ‘The Concept of Epieikeia’ (n 58) 334.

 English Law 25

of the 13th century, in an attempt to rein him in, a limitation was placed on his
power: the Chancellor could no longer award new writs for the common law
courts without the consent of the king and Council.74 Yet the Chancellor was
in a position to throw his weight about. The result was that instead of seeking
consent to issue new writs, he began to keep the petitioners’ requests within
his chancery.75 Gradually, the king’s ‘equitable role in the administration of
justice’ was delegated to the Chancellor,76 who was now regarded as the keeper
of the king’s conscience.77 The petitions (known as ‘bills’),78 which had initially
been addressed to the king, started to be conveyed directly to the Chancellor.79
Since the medieval Chancellor was an ecclesiastic,80 English equity introduced
in the common law has been dubbed ‘an ecclesiastically tinted Aristotelian
corrective’.81
The first courts of equity were established in the mid-​14th century.82 By
that time, the common law had lost its flexibility, owing to strictly formulated
procedural and substantive rules that had hardened through stare decisis83
and it became necessary to soften its ‘hard edges’.84 So it was that equity de-
veloped as an alternative jurisdiction85 to furnish relief to those who did not
have an adequate remedy at common law.86 In this respect, the propinquity of

74 Oleck (n 73) 37; Falcón y Tella (n 7) 59.

75 Oleck (n 73) 37.
76 DeVine, ‘The Concept of Epieikeia’ (n 58) 326, 334; Michael Levenstein, Maxims of Equity (Algora

2013) 43; Joseph Parkes, A History of the Court of Chancery (Longman 1828) 28.
77 Conscience has been described as ‘the hallmark of the medieval Chancery’, so that what we call eq-

uity courts were ‘courts of conscience’, Dennis Klinck, Conscience, Equity and the Court of Chancery in
Early Modern England (Ashgate 2010) vii, 13; AWB Simpson, A History of the Common Law of Contract
(OUP 1975) 398 (‘If one had inquired of a late-​fifteenth-​century lawyer the appropriate title for a
book on what went on before the court of Chancery, he would without doubt have said “Conscience”,
not “Equity” ’). See further Baker (n 72) 111–​112, 114–​116; Mike Macnair, ‘Equity and Conscience’
(2007) 27(4) OJLS 659; Sharon Dobbins, ‘Equity: The Court of Conscience or the King’s Command, the
Dialogues of St German and Hobbes Compared’ (1991) 9 Journal of Law & Religion 113; WT Barbour,
The History of Contract in Early English Equity (Clarendon Press 1914) 82–​84; Falcón y Tella (n 7) 59;
Oleck (n 73) 35.
78 Baker (n 72) 106; Falcón y Tella (n 7) 59; Parkes (n 76) 28. However, in early procedure an action

could also be started informally, by word of mouth, Baker (n 72) 111.

79 Frederic William Maitland, Equity: The Forms of Action at Common Law (CUP 1909) 5.
80 DeVine, ‘The Concept of Epieikeia’ (n 58) 338; Gwilym Dodd, ‘Reason, Conscience and Equity’

(2014) 99(2) History 213.

81 DeVine, ‘The Concept of Epieikeia’ (n 58) 323, 338. See further Barbour (n 77) 158, 167–​178.
82 Gary McDowell, Equity and the Constitution (U Chicago Press 1982) 24; Joseph Hendel, ‘Equity in

the American Courts and in the World Court’ (1996) 6(3) Indiana International & Comparative LRev
637, 640–​641; Brice (n 9) 16.
83 Hendel (n 82) 641; WS Holdsworth, ‘The Relation of Equity Administered by the Common Law

Judges to the Equity Administered by the Chancellor’ (1916) 26(1) Yale LJ 1, 3; Oleck (n 73) 36; Henry
Campbell Black (ed), Black’s Law Dictionary (6th edn, West 1990) 540; Bryan Garner (ed), Black’s Law
Dictionary (10th edn, Thomson Reuters 2014) 656.
84 McDowell (n 82) 24.
85 Black (n 83) 540. See also Garner (n 83) 656.
86 Robert Bone, ‘Mapping the Boundaries of a Dispute’ (1989) 89 Columbia LRev 1, 22, 24; Hendel

(n 82) 641; Oleck (n 73) 36.

26 Origins of Equity

English equity to its Roman law antecedent is patently obvious. Unconstrained

by guiding precedent and the formalities of the common law, equity provided
a more malleable framework and relied on natural justice.87 Later, it became
necessary to adopt a consistent approach in order to treat like cases alike and
thus respect equality, itself an attribute of equity, and routine procedures were
established to deal with the thousands of petitions received as equity courts
became popular.88 Precedents started to develop and equity too became a
rules-​oriented system gradually losing its elasticity.89 With time, equity jur-
isprudence became a ‘body of equitable law, as complex, doctrinal, and rule-​
haunted as the common law ever was’.90
English equity carried over into the law of the United States, albeit with
modifications. In the United States, jurisdiction over actions at equity and at
common law started to be vested in the same court in 1846.91 The distinction
between the two was abandoned in favour of a single ‘civil action’ covering
both.92 In England, the separation between common law courts and equity
courts was abolished with the Judicature Acts of 1873–​1875.93 Other common
law jurisdictions passed similar legislation, which led to the progressive amal-
gamation of procedures at common law and equity around the world.94
English equity has been described as ‘surely [echoing] a universal notion of
equity, which in some form or other is found in all developed legal systems’.95
Having said that, the centuries-​old separation of equity from the common law
lies at the origin of a lingering conviction among some common lawyers that
equity is somehow distinct from law and that it is its hierarchical inferior.96 On
that view, equity is an extraordinary relief to be resorted to when no other ad-
equate remedy is available at law.97 This perception has somehow carried over
into international law98 and it is refuted in Chapter 6.99

87 Bone (n 86) 22; Hendel (n 82) 641; Joseph Story, Commentaries on Equity Jurisprudence (4th edn,

vol I, Maxwell 1846) 23.

88 Baker (n 72) 118–​119.
89 Bone (n 86) 22–​24; Baker (n 72) 119; Hendel (n 82) 641–​642; Brice (n 9) 23.
90 H Jefferson Powell, ‘ “Cardozo’s Foot”: The Chancellor’s Conscience and Constructive Trusts’

(1993) 56(3) Law and Contemporary Problems 7, 8.

91 Oleck (n 73) 42. See further Hendel (n 82) 643.
92 Oleck (n 73) 42; Hendel (n 82) 643.
93 DM Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (CUP 1890)

293–​294; Baker (n 72) 123; Oleck (n 73) 40; Miles (n 50) 24.
94 In some cases, this happened tardily. In New South Wales, actions at common law and equity were

separate until 1972, Miles (n 50) 24.

95 Robert Jennings, ‘Equity and Equitable Principles’ (1986) XLII ASDI 27, 27.
96 Rossi (n 68) 32.
97 ibid.
98 ibid 32–​33.
99 See ch 6, section II Equity and Law.
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in Making This Cupboard for It

The boy should have a place in the home for his sports togs and
equipment, and a cupboard like that shown can be made easily for
the purpose. Its size will depend on the quantity of articles to be
stored. A good size is 12 by 30 in., by 5 ft. high. Plain boards are
used, and for the door they are fastened together with cleats and
screws. The drawer is convenient but not essential.—J. D. Hough,
Toledo, Ohio.
 Wire Compacts Bristles in Polish or Stencil
Brushes

The bristles of brushes used for applying shoe polish and for
painting through stencils often curl so much that the brush becomes
almost useless. In order to overcome this I bound the bristles with
several turns of wire and soldered them into place as shown. When
desirable, part of the wire may be removed by cutting it at the solder.
—Hugo Kretschmar, West Nyack, N. Y.
 Old Table Used as Wall Workbench
Good use was made of an old table, one leg of which was broken,
by removing two of the legs at one side and fitting the table against a
wall. A wide board was set on the back edge of the table, against the
wall, and provided a rack for tools. A drawer was fitted into the front
of the table, and a small iron vise was clamped at one end. The
arrangement provided a convenient bench for home shop work.
 Lettering Photo Prints without Marking Negative
Instead of scratching titles on photographic negatives, which often
produces a poor result, a good method is to write the title on the
sensitive paper with black ink before printing. Care must be taken
not to scratch the paper. The toning and fixing baths wash away the
ink, leaving the script or lettering white. The negative is thus
unmarred.
Rope Pad Prevents Slamming of Door
 An antislam pad, made of a piece of rope and fixed to the knobs of
doors, is in general use in a large hospital. The device is made by
forming loops on the end of a short section of rope, as shown, and
fitting them over the door knob. This also prevents the closing of the
door so that a patient may be heard in calling an attendant.—C. M.
Hall, St. Louis, Missouri.

¶Curtain rollers should be arranged so that the direction of pull on

the tacked edge of the curtain is away from the end.
 Box to Protect Extra Spark Plugs

The Spark Plugs are Fitted Compactly in the Case and are Protected from
Damage

Damage often results to spark plugs which are thrown in the tool
box of an automobile, and the use of a small case for the extra spark
plugs is desirable. Partitions may be fitted into an old box of suitable
size, or a case may be specially made. That shown was designed to
provide for six spark plugs in a minimum of space. It was made of ¹⁄₄-
in. wood, and of a length so that the spark plugs could be slipped in
the recesses only by turning the faces of adjoining plugs together. A
hinged cover keeps them firmly in place.—E. R. Mason, Danville, Ill.
 Homemade Spring Wagon Seat

Two ⁷⁄₈-in. boards, 12 in. wide, between which two 12-in. pieces of
2 by 4-in. wood are bolted, provide a strong spring seat for a wagon.
The boards are cut to a suitable length, and the 2 by 4-in. pieces are
set near the middle, and about 8 in. apart. This gives a spring seat at
each end of the device.
 Cushioned Chair Made of a Barrel
A strong barrel may be made into a comfortable chair by cutting it
halfway through at the middle and shaping the remaining upper
portion into an arm and back rest. Holes are bored at the seat level
and at the back, and wires woven through them to form a backing for
excelsior-stuffed cushions.
 Bicycle Fitted Up to Resemble Motorcycle

Comparison of the “Before and After” Illustrations Shows Strikingly the

Resemblance to a Motorcycle

The boy who cannot own a motorcycle but who has a bicycle, may
remodel it to resemble a power-driven machine by fitting it up with
equipment, much of which can be made in the home workshop. The
illustration shows how an ordinary bicycle was improved by several
practical fittings. The lower end of the mudguard of the rear wheel
was extended to form a clip, for the homemade stand A. Brackets
were made of strap iron to support the bundle carrier B, the basket of
which was made of wood. The tank C, 3 by 3 by 21 in., with two
compartments and doors, contains batteries and tools. It is fastened
to the frame by means of two bolted straps. The bracket D was
made of strap iron, to support the electric headlight E. The
handlebars were extended, as shown at F, and the horn G was
provided. The seat post was lengthened by welding a piece to it, and
reversed, as at H. A tail light, J, and a pump, K, held by straps, were
provided, and the front mudguard was fitted with a leather piece, L,
shaped as shown in the front view.—P. P. Avery, Garfield, N. J.
 Toy Submarine Made of Shade Roller

This Submarine’s “Engine” is Wound by Means of the Propeller

The submarine shown really goes, and was made of a bit of tin,
some lead, a few brads, and an old window-shade roller, with a good
spring. The spring is the submarine engine. Saw off the roller 3 in.
beyond the inner end of the spring, and shape it like the bow of a
submarine. Flatten a piece of lead, and fasten it to the bottom of the
boat for a keel. Experiment until the keel is of the right weight, and in
the proper place, permitting the boat to move evenly, just below the
surface of the water. For the propeller, cut a 2-in. tin disk as shown,
and bend the blades into shape. In the center make a hole to admit
the end of the spring, to which it is then soldered. Wind up the
“engine” by turning the propeller. The shade-roller spring can also be
used for other toy craft.—E. P. Sullivan, Arlington, Massachusetts.

¶Rub powdered graphite on rubber and asbestos gaskets so that

they may be removed easily when desired.