In order to avoid a situation of non-lique, (i.e., no law exists or law is silent on the issue), Article 38 paragraph (2) empowers the Court “to decide a case ex aequo et bono if the parties agree thereto”.

 Ex aequo et bono means what is just and fair or according to equity and good conscience. Something to be decided ex aequo et bono is something that is to be decided by principles of what is fair and just. A decision-maker who is authorized to decide ex aequo et bono is not bound by legal rules but may take account of what is just and fair.