The past year has seen a continued growth in international arbitration in Egypt. Since the Egyptian revolutions, the number of investment treaty claims filed against Egypt has increased significantly. In 1972, Egypt became a contracting state to the International Centre for Settlement of Investment Disputes Convention (ICSID).1Egypt has signed 91 bilateral investment treaties, 41 of which are currently in force.2 In 2014, four new investment treaty cases were registered with ICSID against Egypt. To date, a total of 25 cases against Egypt have been registered with ICSID, a significant number of which were registered following the Egyptian revolutions: nine after the first revolution of 25 January 2011 and four cases after the second of 30 June 2013. Eight of these 13 cases remain pending. A number of cases registered after the first revolution have been suspended or discontinued. Notably, Egypt settled three separate claims filed against it by a Jordanian investor, Ossama Al Sharif.3
The Cairo Regional Centre for International Commercial Arbitration (CRCICA) is widely recognised as the predominant arbitral centre in Egypt. Established in January 1978 by a decision of the 19th Session of the Asian African Legal Consultative Committee, the CRCICA is an independent, non-profit international organisation.
The number of cases filed with the CRCICA prior to 31 March 2015 totalled 1,030. In the first quarter of 2015, 14 new cases were filed with the CRCICA. The CRCICA’s case load in the first quarter of 2015 involved disputes relating to construction, services, lease agreements, real estate, franchise and agency agreements. In 2014, the CRCICA witnessed the filing of more cases than in the previous year, and a new annual record was achieved for the number of international cases not involving an Egyptian party.4 By 31 December 2013, the total number of arbitration cases filed before the CRCICA had reached 1,016. Seventy-four new cases were registered in 2014.5 Parties from Saudi Arabia ranked the top of non-Egyptian parties referring their disputes to the Centre followed by parties from Sudan, Syria, Kuwait, Lebanon, Libya, UAE and Bahrain, while parties from the UK ranked on top of non-Arab parties, followed by parties from Switzerland, USA, British Virgin Islands, Germany, Greece, Italy, Panama and the Seychelles.6
Since it was established, the CRCICA has adopted, with minor modifications, the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL). The CRCICA amended its arbitration rules in 1998, 2000, 2002, 2007 and 2011. The 2011 rules are based on the UNCITRAL Arbitration Rules as revised in 2010, with minor modifications, and apply to arbitral proceedings commenced after 1 March 2011.
One of the key developments in 2013 was the issuance by the CRCICA of Practice Notes for the first time since its inception in 1979. These notes determine the Centre’s policies regarding its decisions under the Arbitration Rules in force since 1 March 2011. The Practice Notes have been prepared based on the decisions taken by the Centre’s Advisory Committee during its quarterly meetings in 2012 and 2013, including:7
- the decision of the CRCICA not to proceed with arbitral proceedings in accordance with article 6 of the Rules;
- the application of article 10(3) of the Rules regarding multiparty arbitrations and its correlation with article 9(2);
- notification to the parties and the arbitral tribunals of submissions made by the parties in light of article 17(4) and (5) and article 48 of the Rules;
- the termination of already suspended arbitral proceedings due to failure of payment of the costs of arbitration;
- the determination of the fees of the arbitral tribunal based on sums in dispute exceeding US$3 million in accordance with the scales set out in table 3 annexed to the Rules;
- the determination of the costs of arbitration according to article 42(5) of the Rules in the case of the arbitral tribunal’s decision to terminate the proceedings before the issuance of a final award according to article 36 of the Rules;
- partial payment of fees to the resigning arbitrators; and
- the advance partial payment of the arbitrators’ fees after the oral hearing under article 45(8) of the Rules.
Egyptian Arbitration Act
The Egyptian Arbitration Law No. 27/1994 (the Arbitration Law) was enacted based on the UNCITRAL Model Law on International Commercial Arbitration (1985). The Arbitration Law applies to arbitrations conducted in Egypt or where the parties to an international commercial arbitration conducted abroad agree to subject the arbitration to the Arbitration Law.8
The arbitration is considered to be international if the subject relates to international trade and, inter alia, if the parties to arbitration agree to resort to a permanent arbitral organisation or center having its headquarters in Egypt or abroad.9 The Arbitration Law is applicable without prejudice to the international conventions to which Egypt is a party10 and applies to all arbitrations between public or private law persons, irrespective of the nature of the legal relationship around which the dispute revolves.11
The arbitration agreement
The Arbitration Law defines an arbitration agreement as an agreement by which the parties agree to resolve by arbitration all or part of the dispute which arose or may arise between them in connection with a specific legal relationship, contractual or otherwise.12 In 2005, the Cairo Court of Appeal held that the arbitration agreement is considered to be the legal basis for arbitration and its constitution, and determines its scope, extent and the subject of the dispute. Where there is an arbitration agreement, the arbitrators derive their powers from it and the dispute will be outside the jurisdiction of the courts.13
An agreement to arbitrate may take three different forms:
- the arbitration agreement may be embodied as a clause or annex to the agreement between the parties before a dispute arises between them;
- the parties may enter into an arbitration agreement after a dispute has arisen. If so, the parties must determine in the arbitration agreement the matters or disputes subject to arbitration, otherwise, the agreement shall be null and void.14 This form of arbitration agreement is referred to as a ‘submission agreement’; or
- the arbitration agreement may be incorporated by reference.
However, the validation of such incorporation requires an explicit reference to an existing document with a valid arbitration agreement therein.15 Pursuant to article 10(3) of the Arbitration Law and Egyptian jurisprudence, the following conditions must be satisfied:
- the reference should be made to an existing document or contract that includes an arbitration clause;
- the document or contract to which the reference is made should be known to all the parties against whom such document or contract and the included arbitration clause will be invoked; and
- the reference should be explicitly made to the arbitration clause itself and to the fact that is an integral part of the contract (a general reference to the existing document or its terms is not sufficient).16
Conditions of validity of the arbitration agreement
In addition to contractual requirements such as consent, capacity and the existence of a legal relationship, the following requirements must be satisfied for there to be a valid arbitration agreement:
- the arbitration agreement must relate to matters that are amenable to compromise;17
- the arbitration agreement must be made in writing; otherwise, it shall be null and void.18 It will be written if it is included in written communication exchanged between the parties. This requirement is widely interpreted to include an arbitration agreement concluded by electronic offer and acceptance.19 The silence of agreement in this regard may be considered as acceptance of the arbitration agreement if there are continued transactions between the parties where the arbitration agreement is part thereof;20 and
- in accordance with article 702 of the Egyptian Civil Code and article 76 of Civil and Commercial Procedures Law, the arbitration agreement may not be concluded by an agent except by virtue of private and specific written delegation;21 otherwise, the arbitration clause will not be effective in relation to the principal.
Arbitration with respect to administrative contracts was a matter much debated before finally being settled by an amendment to the Arbitration Law in 1997.22 Arbitration in relation to administrative contracts is permissible provided the arbitration agreement is approved by the competent minister or by whomever assumes his or her authority with respect to public entities.23 The power to approve the arbitration agreement may not be delegated. Approval may be rendered subsequent to the conclusion of the administrative contract and does not need to be written or expressed in a specific form.24 The approval of the competent minister for the validity of an arbitration agreement is a matter of public policy.25 A recent CRCICA award held that approval may be implicit, inferred from the circumstances of the case.26
The Egyptian courts have held that the absence of ministerial approval invalidates the arbitration agreement.27 In 2010, the Cairo Court of Appeal held that ministerial approval is a legislative requirement for the validity of the arbitration clause and is addressed to both parties.28 Similarly, in 2011, the Administrative Supreme Court upheld the principle that ministerial approval of the arbitration clause is addressed to both parties.29 While some CRCICA tribunals have applied this principle, others have not. Some tribunals have held that the arbitration agreement is not invalidated due to the absence of ministerial approval because this requirement should not be applicable to international commercial arbitrations conducted with foreign investors,30 the Arbitration Law does not provide for an annulment sanction for violation of article 1, and such requirement needs to be fulfilled by the administrative entity and not the other party (ie, it is the sole responsibility of the administrative entity and it should bear the liability for not obtaining ministerial approval).31 Other tribunals have, as recently as 2011, taken the view that the arbitration agreement is void in the absence of ministerial approval.32 It is sufficient for the validity of arbitration clauses in administrative contracts that the relevant public entity expressly admits in the contract that it has ministerial approval of the arbitration agreement.33
Number of arbitrators
Parties are free to choose the number of arbitrators, provided that the number is odd; otherwise, the arbitration shall be null and void according to the public policy. The arbitral tribunal is to be formed of three arbitrators if the parties fail to reach an agreement.34 The same principle applies in the CRCICA Rules whereby the parties are free to choose the number of arbitrators. In case the parties fail to agree on the number of arbitrators, the arbitral tribunal shall be formed of three arbitrators.35
In situations where a tribunal conducts arbitration proceedings with only two arbitrators, the tribunal is referred to as a ‘truncated tribunal’. This situation typically takes place when one of the coarbitrators refuses to participate in the deliberations or resigns in the very late stages of the arbitration proceedings.36
According to the general rules of substitution of arbitrators, a substitute arbitrator shall be appointed by the same mechanism used to appoint his predecessor.37 However, the party that appointed the resigning arbitrator may take this opportunity to delay the proceedings.
In an attempt to overcome this, the CRCICA rules expressly provide that if, and at the request of a party, the CRCICA determines that, in view of the exceptional circumstances of the case, it would be justified for a party to be deprived of its right to appoint a substitute arbitrator, the CRCICA may, after giving an opportunity to the parties and the remaining arbitrators to express their views, and upon the approval of the advisory committee, either appoint a substitute arbitrator or, after the closure of the hearings, authorise the other arbitrators to proceed with the arbitration and make a decision or award.38
In 2011, the Cairo Court of Appeal held that in certain situations where the behaviour of an arbitrator is unjustified or stained with bad faith, and provided that the arbitrator has resigned or failed to undertake his mission after the conclusion of all hearings and pleadings, an award rendered by a truncated tribunal shall not be annulled.39 More recently, in 2013, the Cairo Court of Appeal held that there is nothing in the Egyptian Law that would prevent the adoption of the CRCICA Rules in this regard and the arbitrator’s refusal to participate in the deliberations with no acceptable reason and his consequential refusal to sign the award are not sufficient reasons to annul the award as provided for by article 43 of Arbitration Law No. 27/1994.40
Impartiality and independency of arbitrators
The Arbitration Law provides that an arbitrator may not be challenged unless there are serious doubts as to his neutrality or independence. The request to challenge shall be submitted in writing to the tribunal, including the reasons for challenge, within 15 days after the party becomes aware of the composition of the tribunal or the circumstances justifying the challenge.41 The CRCICA Rules provide that an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence.42 The CRCICA may, with the approval of its advisory committee, reject the appointment of an arbitrator due to the lack of legal or contractual requirements or his or her past failure to comply with certain duties under the rules. The arbitral tribunal is obliged to refer the dispute of recusal to the competent court;43 however, under the CRCICA Rules, such recusal request shall be adjudicated by a decision of a triple special impartial and independent committee to be formed by the CRCICA from members of the advisory committee.44 In case an arbitrator’s mission is terminated by recusal, discharge, abstention or for any other reason, a substitute shall be appointed according to the same procedures of choosing the arbitrator whose jurisdiction had been terminated.45
The Arbitration Law grants parties the freedom to choose the applicable procedural law that will be applied by the arbitral tribunal, including their right to subject such arbitration to the applicable rules of any institution or arbitration centre in Egypt or outside. However, if the parties fail to agree on such matter, the arbitral tribunal will be granted the freedom to select the applicable procedural law.46
It is established through judgments of the Egyptian Courts that, except for rules related to public order, arbitral tribunals are not bound by norms considered mandatory in domestic litigations.47
Pursuant to article 46 of the Arbitration Law, the tribunal has the right to suspend the arbitral proceedings if, in the course of the proceedings, a matter falling outside the scope of the arbitral tribunal’s jurisdiction is raised, or if a document submitted to it is challenged for forgery, or if criminal proceedings are undertaken regarding the alleged forgery or for any other criminal act pro-vided that such preliminary matter is essential or necessary for the tribunal in order to be able to review the arbitral dispute.48 In such case, the arbitral tribunal shall suspend the proceedings until a final judgment is rendered in this respect by the competent authority.49 This will include suspension of the time limit for making of the arbitral award.50
The role of Egyptian courts in arbitral proceedings
The Arbitration Law provides for certain instances whereby the local courts may intervene in the arbitral proceedings subject to the request of either party to the dispute. For example, the local court may order that provisional or conservatory measures be taken, whether before the commencement of arbitral proceedings or during the procedure on the basis of an application from one of the parties;51 the president of the Court referred to in article (9) of this law shall, upon request from the Arbitral Tribunal, be competent to: pass judgment against defaulting or intransigent witnesses imposing the penalties prescribed in articles 78 and 80 of the Law of Evidence in Civil and Commercial matters; and order a judicial delegation.52
The Arbitration Law grants parties the right to agree upon the time limit of arbitration proceedings. In case of absence of the parties’ agreement, arbitration proceedings are limited to 12 months from the commencement date of the proceedings. This term may be extended by an additional six months by the tribunal, unless the parties agreed otherwise.53 In this regard, if the parties agree to certain arbitration rules to be applied that provide for a different time limit or give the tribunal the authority to extend the time limit according to its discretion, such rules shall be applied. For example, if the parties agree to subject the dispute to CRCICA Rules, which do not include any time limits for arbitration proceedings, such proceedings shall not be subject to the time limit set forth in the Arbitration Law and shall not be limited to a certain time limit unless otherwise by the agreement of the parties.54 In all cases, if the proceedings exceed the determined time limit, either of the parties may have recourse to the competent court for the purpose of terminating the proceedings or determining a new time limit.55 If the arbitration proceedings exceed the determined time limit, the arbitration agreement shall be considered terminated and the arbitral tribunal shall have no jurisdiction to proceed further.56 However, the parties’ continuance in the proceedings is considered as an implied extension to the time limit.57
Setting-aside of arbitral awards
Pursuant to article 53 of the Arbitration Law, arbitral awards may be annulled for several reasons including, inter alia, absence of a valid arbitration agreement, or violation of the right of defence of one of the parties.
Article 53 further provides that the court adjudicating the nullity action should decide ipso jure the nullity if it is in conflict with Egyptian public policy. The Egyptian courts have refrained from defining public policy and this has resulted in some uncertainty.
Enforcement of arbitral awards
Pursuant to article 55 of the Arbitration Law, all arbitral awards rendered in accordance with the provisions of this law have the authority of the res judicata and shall be enforceable in conformity with its provisions.58 The enforcement of domestic arbitral awards is governed by article 56 of the Arbitration Law, which requires a request for enforcement to be submitted to the president of the competent court, along with the required documents.59 The enforcement order shall be submitted after the lapse of the 90-day period prescribed for filing the nullity action and this order will be issued after verifying that certain conditions have been met.60
The enforcement of foreign arbitral awards in Egypt is governed by the New York Convention on the Enforcement of Foreign Arbitral Awards.61 The New York Convention was signed by Egypt on 2 February 1959 and entered into force on 8 June 1959.
Under article 54(2) of the ICSID Convention, the recognition and enforcement of an award may be obtained from the competent court or other authority designated by a contracting state on presentation of a copy of the award certified by the secretary general of the ICSID. The Ministry of Justice has been designated by Egypt as the competent authority for the recognition and enforcement in Egypt of arbitral awards rendered pursuant to the ICSID Convention. Execution of the award is, in accordance with article 54(3) of the ICSID Convention, governed by the law on the execution of judgments in force in the country where execution is sought, which in Egypt is the procedures law. ICSID awards should be enforced in Egypt without prejudice to the Egyptian law provisions regarding the immunity of Egypt or any foreign state from execution (article 55 of the ICSID Convention). Article 87 of the Egyptian Civil Code provides that public assets of the Egyptian state are immune from enforcement and attachment procedures.
- Egypt signed the ICSID Convention on 11 February 1972, and the convention was entered into force on 2 June 1972. See ICSID published ‘List of Contracting States and Other Signatories of the Convention’.
- http://icsid.worldbank.org (Publications/Search Listing of Bilateral Investment Treaties/Egypt, Arab Republic of (91)). The data, which is not conclusive, is based on information provided to ICSID by governments.
- https://icsid.worldbank.org/apps/ICSIDWEB/cases/Pages/Advanced Search.aspx?gE=s&rspndnt=Arab%20Republic%20of%20Egypt.
- CRCICA Newsletter 1/2015; CRCICA Annual Report 2014, Letter from Director.
- CRCICA Annual Report 2014, p. 9.
- CRCICA Annual Report 2014, p. 10 (citing statistics from 2014).
- CRCICA Annual Report 2014, Letter from Director.
- Article 1 of Arbitration Law No. 27/1994.
- Article 3 of Arbitration Law No. 27/1994.
- Article 1 of Arbitration Law No. 27/1994. See also Court of Cassation Judgment, Challenge No. 966/73 JY, hearing dated 10 January 2005; Court of Cassation Judgment, Challenge No. 10350/65 JY, hearing dated 1 March 1999; and CRCICA Arbitration Case No. 495/2006, award dated 17 May 2007, published in Journal of Arab Arbitration, Issue No. 12, pp. 121–123.
- Article 1 of Arbitration Law No. 27/1994.
- Article 10(1) of Arbitration Law No. 27/1994.
- Cairo Court of Appeal Judgment, Circuit 91 – Commercial, case No. 95/ 120 JY, session dated 27/4/2005.
- Article 10(2) of Arbitration Law No. 27/1994.
- Article 10(3) of Arbitration Law No. 27/1994.
- Court of Cassation Judgment, Challenge No. 495/72 J, session dated 13 January 2004.
- Article 11 of Arbitration Law No. 27/1994. Public policy matters are not subject to compromise and are therefore non-arbitrable (see article 551 of the Egyptian Civil Code). Non-arbitrable matters include, inter alia, the personal status of individuals, criminal matters, bankruptcy claims, public assets and for the sole purpose of requesting interim measures (see Cairo Court of Appeal Judgment, case No. 29/117 JY, session dated 25/02/2002).
- Article 12 of Arbitration Law No. 27/1994.
- 20 Fathy Waly, Arbitration Law in Theory and Practice, 2014, p. 162.
- Professor Mahmoud El Briery, International Commercial Arbitration, Fourth Edition 2010, Dar El Nahda El Arabi’a, p. 59.
- Cairo Court of Appeal Judgment, case No. 31/128 JY, session dated 26/06/2012, referred to in the Journal of Arab Arbitration, Issue No. 19, p. 190; and CRCICA Arbitration Case No. 795/2012.
- Article 1 of Law No. 9/1997, which amended some provisions of the Arbitration Law No. 27/1994 including the permissibility to arbitration in relation to administrative contracts after the approval of the competent minister.
- Article 1 of the Arbitration Law as amended by Law No. 9/1997.
- 2 CRCICA ad hoc Arbitration Case No. 793/2012, award dated 18/07/2012, referred to in the Journal of Arab Arbitration, Issue No. 19, p. 196. See also Fathy Waly, supra note 22, p118; Professor Mahmoud Samir Al Sharkawy, International Commercial Arbitration – Legal Comparative Study, 2011, Dal El Nahda Al Arabia, p81; Abdel Aziz Abdel Mena’em Khalifa, Arbitration in Contractual and Non-Contractual Administrative Disputes, 2011, Monsha’at El Ma’aref, p. 127.
- Administrative Judiciary Court, Investment and Economics Disputes Section, 7th Section, Lawsuit No. 11492/65 JY, session dated 7 May 2011.
- CRCICA Arbitration Case No. 676/2010, award dated 21/08/2011, Journal of Arab Arbitration, Issue No. 17, pp. 263-264.
- Administrative Court judgment No. 18628/59 JY, session dated 19 February 2006; Administrative Supreme Court Judgment No. 6268/46 JY, session dated 31 May 2005; Cairo Court of Appeal Judgment No. 76/177 JY, session dated 08 May 2002 referred to in Walid Mohamed Abbas, Arbitration in Administrative Disputes of Contractual Nature, 2010, Dar El Gama’a El Gadida , pp. 217-219.
- Cairo Court of Appeal Judgment No. 111/126 JY, hearing dated 30 March 2010 referred to in Mohamed Amin El Mahdy, ‘Return to the Problematic Arbitration in Administrative Contracts Disputes’, Journal Arab Arbitration, Issue No. 19, p. 26.
- Administrative Court Judgment No. 11492/65 JY, session dated 7 May 2011.
- CRCICA Arbitration Case No. 382/2004, session dated 7 March 2006 referred to in Walid Mohamed Abbas, supra 34, pp. 221–222.
- CRCICA Arbitration Case No. 464/2006, session dated 2 July 2006; CRCICA Arbitration Case No. 553/2007, session dated 5 November 2009 referred to in Journal of Arab Arbitration, Issue No. 13, December 2009, p. 237; CRCICA Arbitration Case No. 567/2008, session dated 12 September 2009 referred to in Journal of Arab Arbitration, Issue No. 13, December 2009, p. 237; CRCICA Arbitration Case No. 495/2006, award dated 17 May 2007, referred to in Journal of Arab Arbitration, Issue No. 12, pp. 121–123.
- CRCICA Arbitration Case No. 292/2002, session dated 29 May 2003 and CRCICA Arbitration Case No. 390/2004, session dated 12 March 2005 referred to in Walid Mohamed Abbas, supra 34, pp. 222–223; CRCICA Case No. 676/2010, award dated 21 August 2011, Journal of Arab Arbitration, Issue No. 17, p. 262.
- CRCICA Arbitration Case No. 793/1201 (Ad Hoc) Award dated 18 July 2012, published in the Journal of Arab Arbitration, December 2012, Issue 19, p. 193, referred to in Fathy Waly, supra note 22, p. 138.
- Article 15 of the Arbitration Law No. 27/1994.
- Article 7(1) of CRCICA Rules.
- See, Gary B Born, International Arbitration: Law and Practice, 2012, p. 142.
- Article 21 of Arbitration Law No. 27/1994.
- Article 14(2) of CRCICA Rules.
- Cairo Court of Appeal, Circuit 7 Commercial, case No. 64/127 JY, session dated 7 September 2011, referred to in International Arbitration Journal, issue 16, October 2012, p. 585.
- Cairo Court of Appeal, Circuit 7 Commercial, case No. 32/129 JY, session dated 5/3/2013, referred to in Professor Fathy Waly, Supra, note 22, p. 359.
- Articles 18 and 19 of the Arbitration Law No. 27/1994.
- Article 13 of the CRCICA Rules.
- Article 19(1) of the Arbitration Law No. 27/1994; Court of Cassation, Challenge No. 9568/79 JY, session dated 14 March 2011.
- Article 13(6) of CRCICA Rules.
- Article 21 of the Arbitration Law No. 27/1994; article 14(1) of CRCICA Rules.
- Article 25 of the Arbitration Law No. 27/1994.
- See Court of Cassation, Challenge No. 547/51 JY, session dated 23 December 1991; Court of Cassation, Challenge No. 1259/49 JY, session dated 13 June 1983.
- See Prof Fathi Wali, Arbitration in the Domestic and International Commercial Disputes, 2014, p. 488.
- Professor Mahmoud El Briery, International Commercial Arbitration, Fourth Edition 2010, Dar El Nahda El Arabi’a p118; Court of Cassation, Challenge No. 1479/53 JY, hearing dated 19 November 1987.
- Article 46 of Arbitration Law No. 27/1994.
- Article 14 of Arbitration Law No. 27/1994.
- Article 37 of Arbitration Law No. 27/1994. More examples are set out in articles (9), (17), (19), (45), (20) and (24) of Arbitration Law.
- Article 45(1) of the Arbitration Law No. 27/1994; Cairo Court of Appeal, Circuit 91 Commercial, case No. 55/2005 JY, session dated 27 February 2005.
- Supra, note 49, pp. 516 – 517.
- Article 45(2) of the Arbitration Law No. 27/1994.
- Supra, note 49, p. 525.
- Article 8 of the Arbitration Law No. 27/1994; Court of Cassation, Challenge No. 3869/78 JY, session dated 23 April 2009.
- Article 55 of Arbitration Law No. 27/1994.
- Article 56 of Arbitration Law No. 27/1994.
- Article 58 of Arbitration Law No. 27/1994.
- Some jurists take the view that the Arbitration Law and the Egyptian Civil and Commercial Procedures Law No. 131/1948 (articles 296– 301) also apply.
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