: 
UPDATE: An Overview of the Egyptian Legal System
and Legal Research
By Dr. Mohamed S. E. Abdel Wahab
Dr. Mohamed S. E. Abdel Wahab (MCIArb.), Licence en Droit -LLB (CAI), LL.M (CAI), MPhil (MAN), Ph.D (MAN), CIArb Dip. International Commercial Arbitration (Balliol College, Oxford University) is an Assistant Professor of Law at the Faculty of Law, Cairo University, Egypt, and Assistant Director of the English Section at the Faculty of Law (Cairo University). He has taught part-time on the LL.M, LL.B, and BA programs at Manchester and Manchester Metropolitan Universities in England. Dr. Abdel Wahab holds a number of visiting positions in Egypt and abroad where he teaches English Contract law, Introduction to Anglo-American Law, Comparative Law, International Arbitration and Conflict of Laws. Dr. Abdel Wahab is currently a Fellow of the National Centre for Technology and Dispute Resolution at the University of Massachusetts, Amherst, USA. Dr. Abdel Wahab is an Adjunct Professor of Law and International Commercial Arbitration (Indiana University, USA), and Faculty Coordinator for the Indiana University LL.M Program in Business and Comparative Law in Egypt.
Dr. Abdel Wahab is also a Founding Partner of Zulficar & Partners which has been formed in June 2009 by a group of 7 partners and their working groups who have exited Shalakany Law Office. Dr. Abdel Wahab serves as the head of the Firm’s Arbitration and Project Finance/PPP Groups. Dr. Abdel Wahab is also the vice-president of the Cairo branch of the Chartered Institute of Arbitrators since 2005, and serves as a Legal Advisor to the Board of Directors of the Cairo Regional Centre for International Commercial Arbitration, and Counselor for International Legal Affairs and International Contracts to the Information Technology Industry Development Agency of the Ministry of Communications and Information Technology in Egypt. Dr. Abdel Wahab served as a legal counsel in a number of international commercial arbitration disputes, and regularly sits as an arbitrator in Ad-hoc and Institutional Arbitral Proceedings involving disputes across the commercial and investment spectrums. He is a member of the United Nations Expert Group on Online Dispute Resolution, and is affiliated with the Computer Crime Research Centre in Ukraine. Dr. Abdel Wahab is also considered a leading international and regional expert on Online Dispute Resolution and one of Egypt’s leading practitioners in Information Technology Law, International Commercial Arbitration, and Project Finance. Dr. Abdel Wahab holds over forty five prizes for academic achievement, and has published numerous articles in learned international journals. He is a regular speaker in national and international conferences on Online Dispute Resolution, Globalization, International Commercial Arbitration, Private International Law, ADR and Ecommerce and IT Law.
Published November/December 2008
Table of Contents
1. Introduction
3.1 The President
3.2 Cabinet
3.3 Ministries
4. The
Legislative Power: Parliament
4.2 Jurisdiction
4.3 Bodies
4.4 Committees
5.2 Term of Membership and Activities
6.1
Court System
6.2 The Supreme Constitutional Court
6.4 Court of Appeal
6.6 Family Court
6.8 Egyptian State Lawsuits
Authority
6.10
Administrative
Courts (State Council)
9
Enforcement of
Judgments and Appeal
10
Enforcement of
Arbitral Awards
15 Governorates
17
Inter-Governmental
Organizations
18 Law
Faculties (Public Universities)
20 Legal
Guides
The Arab Republic of
Egypt lies in the northeastern part of Africa. Whilst most of the country is
located in Africa, the easternmost part, the Sinai Peninsula, is considered
part of Asia and is the only land bridge between the two continents.
Egypt is divided into two unequal parts by the Nile River, and its terrain is
mostly desert except for the Valley and Delta of the Nile, the most extensive
oasis on earth and one of the main centers of habitation in Egypt. While Cairo
is the largest city and the capital of Egypt, Alexandria, the second largest
city, remains the principal port of Egypt on the Mediterranean.
With an area of more than
one million square kilometers (1,001,450 sq. km.), Egypt prides itself in
having extensive borders: to the west is Libya, to the south is Sudan, to the
northeast are Israel and the Gaza strip, to the north is Mediterranean Sea, and
to the east is the Red Sea.
Egypt is the sixteenth
most populous country in the world with a population of 80,300,000 people,
according to the 2007 US State Department estimate. Unsurprisingly, most of the
population is concentrated near the banks of the Nile River which amounts to
about 40,000 sq km, leaving about 961,450 square kilometers uninhabited. This
is due to the fact that the land near the banks of the Nile is the only arable
agricultural land in Egypt. However, there are ongoing efforts toward expansion
of urban development and populating the desert in order to reduce the heavy
concentration of the population along the Nile.
Egypt has been a
coherent political entity since 3200 B.C. and was one of the first
civilizations to develop irrigated agriculture, urban life, and large-scale
political structures.
On the muddy banks of
the Nile, the oldest political and administrative systems were established along
with Egypt’s first central state. These systems have come a long way, and are
now used in the modern institutions and administrative systems, and have also
been used in the formulation of the constitution, parliament, responsible
government and judicial authority since the 19th century. At the
present time, Egypt is making history again by creating a new phase of economic
development and reform, ascertaining political and democratic authority and
practices, enhancing freedoms and adhering to the rule of law, and respecting
human rights.
The Egyptian legal
system is built on the combination of Islamic (Shariah) law and
Napoleonic Code, which was first introduced during Napoleon Bonaparte’s
occupation of Egypt and the subsequent education and training of Egyptian
jurists in France.
The Egyptian legal
system, being considered as a civil law system, is based upon a
well-established system of codified laws. Egypt’s supreme law is its
written constitution. With respect to transactions between natural persons or
legal entities, the most important legislation is the Egyptian Civil Code of
1948 (the “ECC”), which remains the main source of legal rules applicable to
contracts. Much of the ECC is based upon the French Civil Code and, to a lesser
extent, upon various other European codes and upon Islamic (Shariah)
law, especially in the context of personal status.
Despite the
non-existence of an established system of legally (de jure) binding
precedents, previous judicial decisions do have persuasive authority. Courts
are morally and practically bound (de facto binding effect) by the principles
and precedents of the Court of Cassation for civil, commercial, and criminal
matters, and the Supreme Administrative Court for administrative and other
public law matters.
It is worth noting that
the classical dichotomy of public and private law has resulted in the
crystallization of a separate set of legal rules applicable to transactions
involving the State (or any of its institutions, subsidiaries, or state-owned
enterprises) acting as a sovereign power. This entailed the establishment of the
Egyptian Council of State (Conseil d'Etat), which consists of
administrative courts vested with the power to decide over administrative
disputes pertaining to administrative contracts and administrative decrees
issued by government officials. These courts apply administrative legal rules,
which are not entirely codified; hence, because often no applicable legislative
rules exist, the scope of judicial discretion is ample in light of the
established precedents laid by the supreme courts.
The President of Egypt
is the Head of the State, and he is also, under the Egyptian Constitution,
the Supreme Commander of the Armed Forces and Head of the Executive Authority
(the Egyptian Cabinet).
Requirements
to Hold Office
Article 75 of the Egyptian Constitution
clearly states that a President of Egypt must meet certain requirements. First,
he must be an Egyptian national, born to Egyptian parents and enjoy both
political and civil rights. Moreover, his age should not be less than 40
calendar years.
Term(s) of Office
According to the Constitution, after being elected by the qualified special majority
of the Parliament, the President serves six consecutive calendar years from the
date the results of the plebiscite are announced. Once his term ends, he may be
re-elected for other successive terms, as the Constitution does not state any limit to the number of terms a
president may serve.
Powers
Under the system
created by the 1980 constitutional amendments, the President, being the head of
the Executive Authority, names the Prime Minister, who chooses the Ministers
and manages the day-to-day affairs including the economy.
As the chief executive
body of Egypt, the Cabinet consists of the Prime
Minister and the cabinet ministers. In addition to its management of daily
affairs and setting strategies for development and reform in all areas, it has
a role in shaping the agenda of the houses of Parliament by proposing Laws to
Parliament, as well as amendments during parliamentary meetings. It may also
make use of procedures to speed up parliamentary deliberations.
Articles (135) and
(156) of the Constitution
clearly define the legal capacity of the Cabinet
as follows:
Traditionally, the Cabinet consists of:
Ministry
of Justice
Ministry
of Tourism 
Ministry of Health and Population
The Parliament of Egypt
is located in Cairo. As the legislative authority, it has the power to enact
laws, approve general policy of the State, the general plan for economic and
social development and the general budget of the State, supervise the work of
the government, ratify international conventions, and to vote to impeach the
President of the Republic or replace the government and its Prime Minister in a
vote of no-confidence.
The Parliament is a
bicameral legislature. The present-day Constitution
states the Parliament’s two chambers be the following:
Every year, the
Parliament meets for one nine-month session, but under special conditions the
President may call another session. It is argued that the Parliament’s powers
have increased since 1980’s Amendments to the Constitution.
The People’s Assembly was founded in 1971 as
a result of the adoption of the new Constitution.
It is considered to be the lower house of the two, though it has a greater
number of deputies, 454 deputies to be precise. 444 of them are directly
elected, while the remaining ten are appointed by the President. Farmers and
Workers make up half of the assembly, as the Constitution
requires that there be many seats open for them, specifically, one for each
two- seat constituency. The Assembly sits for a five years term but can be
dissolved earlier by the President.
Competences of the People’s Assembly are as follows:
Legislation
It is the main duty of
the Assembly; it includes the right of the President or any Parliamentarian to
propose draft laws which are then imputed to an ad hoc committee (an informal
committee) of the Assembly to be examined and reported thereon.
The convocation, or
formal gathering, of the People’s
Assembly is valid only when a majority of the members attend. Once a
majority has been achieved, then the voting process begins on draft laws; decisions
are made on the basis of majority rule.
The President’s power
is demonstrated again, by his support for and/or objection to some laws. He can
send back the draft law if he disagrees with it, even if it was approved by the
People’s Assembly. He has a time
period of thirty days to return the draft law after he informs the House.
In a case in which the
draft law is not returned in the assigned time, it is endorsed as a law and
promulgated. But if it is returned within the time period, then the People’s Assembly may endorse it for the
second time by a majority vote of two-thirds. In that case, it is also considered
a law and promulgated.
In some exceptional
cases the Constitution
gives the President the right to issue decisions or decrees which have the
force of law, but which need no authorization from the People’s Assembly.
On a different note,
legislation (statutes) constitutes the main source of legal rules. Codified
statutory rules rank below the Constitution
and international conventions. However, they rank higher than executive
regulations, decrees, internal regulations, custom, and general principles of
law. According to the 1980 amendment of the Constitution,
Islamic Law (Sharia) became the principal source of legislative rules.[1] Such wording
simply implies that any new law that is being enacted or considered for
enactment should not be in contravention of any prevailing principles of
Islamic Law (Sharia). Nevertheless, whilst all statutes regulating
personal status issues (such as inheritance, marriage, divorce, alimony, etc.)
are derived from Islamic norms, penal law rules as codified in the Penal Code
are entirely western, secular rules. It is argued that the 1980 amendment
operates only with respect to post-1980 legislation and does not have a
retroactive effect. Accordingly, any legal rules which are inconsistent with
general principles of Islamic Law (Sharia), that have been enacted prior
to 1980 remain in full force and effect (such as penal law rules), unless
abolished or replaced by new laws.
It is worth noting that
Egypt has enacted a number of new statutes to respond to contemporary standards
of global economic and business reform including: Investment Law, Anti-Money
Laundering Law, Intellectual Property Rights Law, Competition Law, Consumer
Protection Law, Electronic Signatures Law, Banking Law, Taxation Law, etc.[2]
Approval of Plan and
Budget
The People’s Assembly has one of the most
important capacities in the State, which is to approve of the General State
budget, as the Constitution
specifically states that the general plan of economic and social development
should be approved by the People’s
Assembly. Moreover, the law specifies that it also plans the drafting and
presentation of the General State Budget.
Drafting the Budget is
a serious matter and must be presented to the Assembly at least two months
prior to the beginning of the fiscal year in order to be voted upon. The
process of voting on the budget is taken on bracket by bracket, and it becomes
official once it receives majority approval.
The approval of the People’s Assembly is necessary before
any monetary transaction may occur.
The final account of
the State Budget should be presented to the People’s Assembly to be voted on chapter
by chapter, then issued by law.
On a different note,
with respect to taxation, the Constitution
states taxes or duties may not be levied, charged, amended or abrogated except
by virtue of a statute. Accordingly, individuals or legal entities are not
obliged to pay any taxes or duties except those provided under the law.
Monitoring
The Constitution
upholds the concept of separation of powers, and hence balances the powers of
the three main authorities (Executive, Parliament, and the Judiciary). Within
this scheme, the Parliament monitors the actions of Executive Authority through
many mechanisms and instruments, and in order to fulfill such monitoring role,
members of the People’s Assembly
enjoy parliamentary immunity.
The President of the
Republic is vulnerable to criminal accusation by the People’s Assembly upon proposition by at
least one third of Assembly members. The same percentage may issue the
indictment bill.
Moreover, each and
every member of the People’s Assembly
has the right to question and cross-examine the Prime Minister or one of his
Deputies in any matter within their competence (this right is enshrined in the Constitution),
and the questions of the members must be answered.
The Constitution
also stresses that ministers shall be accountable before the People’s Assembly for the State Policy.
Just like any ordinary person, each minister shall be held accountable for his
actions, which are stated in his portfolio. Thus, ministers could be subject to
a vote of confidence, which could result in their dismissal or
disqualification.
Though the People’s Assembly cannot disqualify the
Prime Minister, they can dismiss or disqualify a deputy of the Prime Minister,
a Minister, or a Deputy Minister. However, this motion cannot be presented
exceptt after a cross-examination and upon recommendation of at least ten
Assembly members.
It is necessary for the
People’s Assembly to have specialized
factions which study and bring forth issues which are looked into by the
Assembly, or the issues related to the Assembly. These factions are seven in
number and are as follows:
There are 18
specialized committees of the People’s
Assembly helping exercise its legislative and monitoring duties:
The Arabic word ‘shura'
means consultation; in English it is roughly translated as "The Consultative
Council." Other than being a Consultative Council, it is also the Upper
house of Egyptian Parliament and is composed of 264 members. 174 of the members
are directly elected and the other 88 are appointed by the President of
Republic, and hence maybe replaced at his discretion. The Shura's
legislative power is fairly limited in comparison to the People’s Assembly, and usually in
debates on certain matters the People’s
Assembly has the upper hand and the prevailing view.
In accordance with the
Law, any candidate wishing to be elected to the Shura Council should meet the following
conditions:
Members of the Shura Council member are elected by a majority
of valid votes cast in the elections.
The term membership of
the Shura Council is six years.
However, renewed election and appointment of 50% of the total number of members
is required every three years, and it is always possible to re-elect or
re-appoint those members whose membership has expired.
The Constitution
has provided many guarantees whereby the Council is able to carry out its tasks
and activities.
The most prominent are:
As previously stated,
pursuant to Article (1) of Law No.120 of the Year 1980 as amended by Laws No.10
of the Year 1989 and 8 of the Year 1995, the Shura
Council must be made up of 264 members. Two thirds of the council is
elected by a direct ballot, and half of the Council must be farmers or workers;
the remaining third (88) is appointed by the President of the Republic.
As explained earlier,
the powers of the Shura Council are not
as extensive or effective as those of the People’s
Assembly. Its jurisdiction, as provided by Articles (194) and (195) of the Constitution,
covers the studying and proposing
of what is deemed necessary to preserve the principles of the July 23rd,
1952 revolution and the May 15th, 1971 Corrective Revolution. These
principles are to consolidate national unity and social peace, to protect the
Alliance of the people’s working force and socialist gains, as well as the
basic constituents of the society, its supreme values, its rights, public
freedoms and duties, and strengthening the scope of the democratic system.
Article (195) of the Constitution
provides for the Council to be consulted on the following:
As the third
independent authority of the State, the Egyptian Judiciary is comprised of
secular and religious courts, administrative and non-administrative courts, a Supreme
Constitutional Court, penal courts, civil and commercial courts, personal
status and family courts, national security courts, labour courts, military
courts, as well as other specialized courts or circuits.
The Egyptian Court system is
composed of a number of tiers: the Courts of First Instance, Court of Appeal,
and the Court of Cassation are at the apex of the judiciary. The classical
dichotomy of public and private law has resulted in the establishment of the
Council of State (Conseil d'Etat), which consists of administrative
courts vested with the power to decide over administrative disputes pertaining
to administrative contracts and administrative decrees issued by government
officials and ministries. The Supreme Constitutional Court was established in
1969 and has exclusive jurisdiction to decide questions regarding the
constitutionality of laws and regulations, as well as negative and positive
conflict of jurisdiction.
Generally, the Egyptian
judicial system is based on French legal concepts and methods. Judges are
familiar with civil law systems’ concepts, and despite the huge case backlog
and time-consuming proceedings, the principles of due process and judicial
review are inherently cherished and respected. Accessibility to justice is an
indispensable principle of the Egyptian legal system. Judges are generally
independent from the State and enjoy judicial immunity; hence they cannot be
dismissed by the Executive Authority. However, due to the huge amount of cases
before the courts, there exists a heavy case backlog, which adversely affects
the efficiency of the court system and the judiciary as a whole. Apart from the
heavy case backlog which might cause some delay and inconvenience, judges are
competent, able, and impartial, which ensures equality of the parties and
justice. Furthermore, fees to administer judicial proceedings are not very
high, and judicial aid through appointing lawyers as representatives for those
who are unable to afford a lawyer is generally available.
The Supreme
Constitutional Court is an independent body in the Arab Republic of Egypt. It
is currently located in the Cairo suburb of Maadi.
The Court is undeniably
the highest judicial power in Egypt. By virtue Article (25) of the Supreme
Constitutional Court’s Law No.48 of the Year 1979, this Court is empowered to:
In 1931, the Court of
Cassation was established as a tool to provide exclusive and uniform
interpretation and application of the law. The court of Cassation is at the
apex of the judicial hierarchy in Egypt and is based in Cairo.
The Court of
Cassation’s jurisdiction simply includes consideration of challenges brought to
it by either adversary or by public prosecution; it also includes the
examination of lawsuits that arose from a judge’s action. When such a dilemma
occurs, the courts assume the role of a court of merit rather than a court of
law.
Another function of the
court is to give rulings on requests of reparations for all violated verdicts.
The Court issues annual collections on approved judicial principles in the
title “Rulings and Principles of the Court of Cassation”.
There exist around
seven Courts of Appeal in Egypt, all located in major cities. These are second
degree courts that review the awards of the courts of first instance. Their
review covers questions of fact as well as questions of law. Judges of
sufficient experience and seniority sit as judges in the Courts of Appeal.
Appeals from rulings
rendered by the Courts of First Instance should be made within specific time
frames, otherwise an appeal will be rejected, as such time-limits are
mandatory.
Judgments rendered by a
Court of Appeal are only open to challenge before the Court of Cassation, and
usually on points of law or lack or inconsistency of reasoning.
The Courts of First
Instance are first degree courts, which have the ability to consider lawsuits
filed before them only if they fall under their jurisdiction; their rulings
are, generally, subject to appeal.
Judges sitting in
Courts of First Instance are relatively young and rank below the judges of the
Courts of Appeal and the Court of Cassation in terms of experience and
seniority.
This court was founded in
2004 to provide a specialized judicial tool for family disputes. This court
aims at providing psychological peace and comfort for the children caught in
the middle of disputes relating to tutelage, divorce, alimony and custody. Such
courts also aim to sustain amicable settlements for family problems through
specialized and professional guidance agencies.
The enactment of Law
No.120 of 2008 created specialized Economic Courts. The underlying philosophy
of the new Law is to create a specialized judiciary that retains original
competence over economic matters in both criminal and civil proceedings, and
offers expedited commercial and investment justice.
The new Law does not
create a new order of courts, but establishes new circuits within the hierarchy
of ordinary non-administrative courts, specifically at the level of Courts of
Appeal.
The new Law gives
Economic Courts jurisdiction over criminal, as well as civil and commercial,
economic matters. Such newly created Circuits are intended to provide a “one
stop shop” for investors and disputants engaged in economic activities.
Appeal is available
under this new Law for cases involving amounts of L.E. 5,000,000 or less. Cases
in excess of this sum are tried directly in appellate circuits. Review by the
Court of Cassation is available for the latter larger cases, but not the
former. Nevertheless, review by the Court of Cassation is available in all
criminal matters.
The Egyptian State
Lawsuits Authority is an Egyptian judicial institution that was established in
1874, nine years before the Egyptian national courts were established in 1883.
Despite being legally
stigmatized as an independent judicial institution, the Authority does not
perform a truly judicial function; its role is confined to representing the
State before national and international courts and arbitral tribunals.
The law states that the
Egyptian Lawsuits Authority has the power to plead on behalf of the State. The
Egyptian Lawsuits Authority it is divided into seven parts, each capable of
representing the state in the areas of its jurisdiction. Each department is
headed by a vice president, and only the Department of Foreign Disputes is
headed by the President.
The Public Prosecution
has two major functions, which are: (a) to file criminal actions when acting as
public prosecutors before a criminal court; and (b) to hold the right to
initiate actions even if the plaintiff has relinquished his right to do so.
Public prosecutors investigate
crimes, visit crime scenes, question the accused, issue search warrants, and order
the imprisonment of the accused for a period of fifteen days prior to trial or
prosecution.
Moreover, joining the
public prosecution is the path to becoming a judge in the Court of First
Instance, the Court of Appeal, and the Court of Cassation. Nevertheless, some
members of the Public Prosecution remain within the latter and get promoted to
District Attorneys, Attorneys General, and potentially qualify for the post of
the Head of the Public Prosecution.
As previously
mentioned, any administrative disputes in which an administrative body is party
is a matter handled by the Administrative Court and falls under its
jurisdiction.
Administrative Courts
have a separate structure, where the Supreme Administrative Court sits at the
apex of such structure. There are also departments for opinions and legislation
which advise public entities on diverse aspects of public law such as
administrative contracts, tenders, ministerial decrees, etc.
In any governmental
authority or agency there exists an in-house member of the State Council (in
addition to a department for legal affairs) whose opinion should be sought with
respect to any administrative law matter.
With respect to
jurisdiction, it is necessary to distinguish between national jurisdiction in
pure domestic cases and international jurisdiction regarding disputes involving
a foreign element. A brief overview of both seems to be in order.
National or domestic jurisdiction is shared between
two main judicial bodies:
(a) General courts; and (b) Administrative courts
(State Council).
Whilst courts of general jurisdiction are concerned with the settlement
of civil, criminal, commercial and personal status matters, administrative
courts are concerned with the settlement of administrative or public law
matters governed by the jus imperii.
The criteria for
establishing general jurisdiction could be based on the value of the dispute,
nature of the dispute, or territorial jurisdiction of the court.
With
respect to the value of the dispute, general jurisdiction is divided
between:
(1) Trial
courts: dealing with disputes of not more than L.E. 10,000 (ten thousand
Egyptian pounds).
(2)
Higher courts (such as the Court of First Instance): dealing with disputes of
not less than L.E. 10,000 (ten thousand Egyptian pounds).
With respect to
territorial competence, courts of general jurisdiction are divided according to
cities and suburbs. For example, there are Giza courts, Cairo courts,
Alexandria courts, Mansoura courts, etc. Within each city there might be a
number of courts, such as the North Giza Court of First Instance and the South
Giza Court of First Instance.
As for the Court of
Appeals, there is one in Cairo, one in Alexandria, one in Tanta, one in
Ismaileya, one in Suez, one in Mansoura, and one in Kena.
As for the Court of
Cassation there is only one in whole country and it is located in Cairo.
With respect to
international jurisdiction, Egyptian courts assume jurisdiction regarding
international commercial disputes involving a foreign element on the basis of
any of the following criteria:
(a) Cases in which the
defendant is Egyptian, unless the dispute pertains to immovables located in a
foreign State; (b) Cases in which the defendant, despite being a foreign
national, is either domiciled or resident in Egypt, unless the dispute pertains
to immovables located in a foreign State; (c) Cases involving property
(movables or immovables) located in Egypt even though the defendant is a
foreign national who is not domiciled or resident in Egypt; (d) Cases
pertaining to an obligation created, performed, or required to have been
performed in Egypt; (e) Cases pertaining to a bankruptcy or insolvency declared
in Egypt; (f) Cases in which the defendant voluntarily submits to the
jurisdiction of Egyptian courts (full effect to the principle of party
autonomy); (g) Claims, counterclaims, defences, incidental questions, and other
issues which are closely connected to cases filed before Egyptian courts; (h)
Cases involving interim and provisional measures to be executed in Egypt.
The above-mentioned
principles represent the diverse criteria for establishing jurisdiction of
Egyptian courts both on national and international levels.
With respect to the
effect of choice of law and exclusive jurisdiction clauses in international
contracts, it should be noted that Egyptian law, like most legal systems,
upholds the principle of party autonomy to the maximum possible extent. Thus,
parties to a contract are free to agree on an applicable law and exclusive
jurisdiction, and their agreement will be upheld by courts insofar as their
agreement does not violate public policy considerations or fundamental
mandatory norms.
Alongside court
litigation, arbitration has established itself as a prominent method for
resolving business, commercial, and investment disputes. A new Arbitration Law
No.27 of the Year 1994 was enacted which governs both domestic and
international arbitration. Courts are increasingly mitigating any form of
hostility towards arbitration as an out-of-court dispute resolution system.
Judges have generally accepted and supported arbitral proceedings and an
arbitral award, by virtue of the new Arbitration Law, is never reviewed on the
merits.
Thus, if the parties to
a contract agree on an arbitration clause or agreement in disputes capable of
settlement by arbitration (the criteria for arbitrability under Egyptian Law
being the possibility of settlement), Egyptian courts will decline jurisdiction
to review the subject matter of the dispute. However, an arbitral award
rendered may only be subject to nullity proceedings in Egypt if: (a) the Seat
of Arbitration is in Egypt or (b) the parties have agreed, if the Seat is in a
different State, that the law applicable to the proceedings is the Egyptian
Arbitration Law No.27/1994. Such nullity action may be brought for a number of
exclusive grounds, though most are procedural.
As a general rule,
enforcement of judgments and awards is possible when an award is final, which
is the case for awards rendered by the court of Appeal or final arbitral
awards. However, judgments and awards rendered by the Court of First Instance
may also be enforceable by depositing a security.
Enforcement of the
judgment may entail seizure of property or assets as follows: (a) conservatory
seizure over movables or immovables (this is an interim or provisional measure
of protection that may be ordered by the court to protect the interest of
creditors); (b) seizure with a view to sell the seized property or assets
(applicable to both movable and immovable); and (c) garnishment effected under
the hands of third parties and seizure of employment wages. However, pursuant
to Egyptian law, certain rights, assets or property may not be seized such as:
industrial property rights, supplementary rights in rem such as
mortgages and concessions etc…, rights of servitude, current accounts, funds or
assets needed for public utilities, saving funds, and investment certificates.
On a different note,
creditors may also induce voluntary enforcement of judgments by threatening to
institute bankruptcy or liquidation proceedings against the debtor. Judgments
rendered by the Court of First Instance are subject to appeal by the losing or
respondent party, and judgments rendered by the Court of Appeal are equally
subject to challenge before the Court of Cassation, whose review of the
judgment does not hinder or impede enforcement per se.
With respect to the
right of appeal, the party who lost his case before the Court of First Instance
is entitled to appeal the judgment before the Court of Appeal, provided that
the prescribed period of appeal is observed, which is usually 40 days as a
general principle, unless a specific provision indicates otherwise.
Egyptian courts will
generally recognize and enforce foreign judgments if the following conditions
are satisfied: (a) Egyptian courts do not have jurisdiction over the dispute,
and the foreign court which rendered the judgment enjoys jurisdiction pursuant
to its rules on international jurisdiction; (b) the parties have been notified
of the proceedings and validly represented before the competent court; (c) the
judgment or award is final and binding pursuant to the rules prevailing under
the law of the foreign court; and (d) the foreign judgment is not in conflict
with a prior award or judgment rendered by Egyptian courts and is not in
contravention of the prevailing public policy considerations.
If the foreign award or
judgment satisfies the above-mentioned conditions, a request for enforcement is
submitted to the court whose jurisdiction encompasses the place of enforcement.
Such request is submitted in accordance with the general rules for filing
cases, and the competent Egyptian court will then render its exequatur
without reviewing the foreign judgment on its merits.
The prescription period
with respect to enforcement requests and actual enforcement is 15 years in
accordance with the general rules on prescription under the Civil Code.
With respect to
enforcement of foreign arbitral awards, a request for enforcement should be
submitted to the competent court, which, in the case of international
commercial arbitration, is the Court of Appeal. The request should be
accompanied by the original text of the award or a signed copy thereof, a copy
of the arbitration agreement, and an Arabic translation of the award ratified
by an authorized entity if the award is rendered in a foreign language, and a
copy of the minutes verifying submission of the award in the registry of the
competent court.
Furthermore, a request
for enforcement of an arbitral award will not be accepted unless the period for
filing a nullity action has lapsed in cases where a nullity action is possible.[3]
The conditions for
enforcement of arbitral awards are more relaxed than those of foreign judgments,
due to the provisions of the Egyptian Arbitration Law No.27/1994 and the impact
of the New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (1958), to which Egypt is a signatory. The conditions of
enforcement are: (a) the inexistence of a prior Egyptian award on the same
issue; (b) absence of any contravention to Egyptian public policy
considerations; and (c) valid notification of the arbitral award.
At the stage of
recognition or enforcement, arbitral awards, like foreign judgments, are not
reviewed on their merits.
Egyptian Codes
(Statutes) are published in Arabic in the Official
Gazette (a special journal dedicated to publishing Statutes only) available
in Arabic in book format. Prime Minister's and Minister's Decrees are published
in the Egyptian Gazette, which is available in Arabic in book format. However,
an electronic version of all such statutes, decrees, and regulations should be
available in Arabic on the Tashreaat
website.
LADIS or Tashreaat publish all laws, decrees, etc.
This is in addition to court rulings and some legal articles, most of
which are in Arabic, but some of which are in English. Tashreaat also has specialized pages for
human rights, IPRs, and Constitutions of Arab countries. They offer legal
opinions on diverse aspects of law, and they publish a monthly legal bulletin.
Unlike common law
countries, Egypt does not have dedicated periodicals or reports where
cases and court judgments are published. Moreover, not all court
rulings are published. However, the Court of
Cassation Judgments, State Council Judgments, and Constitutional
Court Judgments are published in book format in what we call "Collection
of Awards." These are organized in chronological order by
Judicial Years. Nowadays soft copies of such rulings are available on CDs
and some databases such as Tashreaat. However, databases are
not entirely complete, so a manual search through the "Collection of
Awards" is still important.
It is worth noting that
the Supreme Constitutional Court
does have a website available in Arabic, English and French, where you can view
some useful information and documents, and even search for Awards rendered by
the Court.
Egypt’s information portal, the Information and
Decision Support Center for the Cabinet (IDSC), provides information on a wide
variety of things. The website provides studies, reports, laws,
statistics, working papers, and periodicals (daily, weekly, monthly, quarterly,
and annually). This is available free of charge. However, not all
information is available in English. This website is not dedicated to legal
information; it provides economic, scientific, industrial, commercial,
social, historical, geographical, and political information. It also offers
interactive services.
The Middle East Library for Economic Services
is
the website of the Middle East Library.
The website of the Legal Arab Information Network is another
example of a subscription-based database that contains information on Arab
laws, agreements, cases, research, etc.
Egypt, according to its
Constitution,
has a multiparty system; however, in recent years the National Democratic Party
has been particularly powerful. Opposition parties do exist, but they are not
as strong or powerful as the National Democratic Party.
Law No.40 of the Year
1977 regulates the formation of political parties in Egypt; the main objective
of this Law is to prohibit the formation of religious-based political parties
in order to maintain a secular political environment. In recent years, there
has been growing political pressure and trends towards the formation of new
parties that could effectively contribute to the socio-political agenda of
Egypt.
Egypt is divided into 29
governorates (muhafazah), sorted by the transliterated Arabic name:
Most governorates have
a population density of more than 1000 per km².
·
Cairo University
·
Ain Shams University
·
Alexandria University
·
El Mansoura University
·
Zaqaziq University
·
El Menoufia University
·
Benha University
·
Helwan University
·
Tanta University
·
Assiut University
·
Suez Canal University
·
Beni Suef University
[1] Prior to the 1980 amendment, Islamic Law (Sharia)
was merely a source, amongst other sources, for legislative
rules.
[2] An up-to-date comprehensive information on Laws and
Regulations pertinent to economic, commercial, and business activities in Egypt
could be found at: (1) The Egyptian
Investment Portal (Economic Laws), (2) The
Egyptian Investment Portal (other Laws and Regulations) where over 40
statutes could be downloaded or viewed online, and (3) The American Chamber of Commerce in Egypt
has a very comprehensive website that provides up-to-date information on doing
business in Egypt with useful information on all relevant statutes.
[3] That period is 90 days calculated from the date of
notifying the award to the losing party.