What´s equity? what is fair and reasonable. Two spheres:
a) Equity intra legem.- Under article 38 (1) (c) ICJ Statute is understood to be:
- a general principle of IL and thus may be considered as a material source of law.
- A way of infusing elements of reasonableness and individualised justice whenever law leaves a margin of discretion to a court in decicing a case. This is equity which operates within the boundaries of law .
b) Equity contra legem.- Under article 38(2) of the Statute of the ICJ, equity means that a decision may be made ex aequo et bono, i.e. the court should decide the case not on legal considerations, but solely on what is fair and reasonable in the circumstances of the case (equity contra legem).