• Search

The Guide to Challenging and Enforcing Arbitration Awards - First Edition

Egypt

Applicable requirements as to the form of arbitral awards


Applicable legislation as to the form of awards

1     Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?

Article 43 of Law No. 27/1994 (the Egyptian Arbitration Act (EAA)) sets forth a limited list as to the requirements applicable to the form of arbitral award of which a violation results in annulment of the award.

According to Article 43, an award must be in writing. This provision echoes the requirement, during the enforcement phase, that an arbitral award be deposited with the Court Registry to obtain exequatur and a written document is the only means presenting the method of execution of the award. This requirement cannot be overridden by an agreement between the parties.

The date of issuance of the award and the place of arbitration (i.e., the city or, more generally, the country of its issuance) must be indicated in the award. According to the Cairo Court of Appeal, failure to indicate the place of issuance results in annulment of an award (Cairo Court of Appeal, 8th Commercial Circuit No. 19/124JY, dated 24 April 2013).

Moreover, under Article 43, an arbitral award must include the names of the parties and their respective addresses, and the names, addresses, nationalities and identification of the arbitrators (as to whether the arbitrator in question is a co-arbitrator or the chairman of the arbitral panel).

A copy of the arbitration agreement, and a summary of the parties’ claims, statements and exhibits, must also appear in the award.

An arbitral award must include the reasons why it has been issued and what led the arbitral tribunal to issue its decision in the manner it did. An exception is made for when the parties have agreed otherwise or when the lex arbitri does not require the arbitrators to include any reasons. The award must also include an operative part with the arbitrator’s decision.

Finally, the signatures of all members of the tribunal are required. The Court of Cassation has established that a signature placed on the last page of an award only, may suffice unless the debtor of the award can establish that the purpose of this requirement (i.e., verifying that the arbitrators have deliberated before issuing the award) has not been fulfilled (Egyptian Court of Cassation, Decision No.1394/86JY, dated 13 June 2017). The arbitral award can be validly issued with the signatures of the majority of the panel members. If this is the case, the reason why certain arbitrators did not sign the award must be given. If the dissenting opinion is not stated, however, the award may only be nullified if the debtor proves that the reason for the lack of signatures is the absence of deliberation (Egyptian Court of Cassation, Decision No. 4457/77JY, dated 9 November 2010).

It should be noted that as per Article 25 of the EAA, it is permissible for the parties to subject the arbitral proceedings to any set of institutional rules. If the agreed set of rules provides different requirements as to the form of an award, the later shall prevail, as long as it does not violate Egyptian public policy. For example, if the parties agree to apply a set of rules that does not require the award to include any reference to the reasons behind an arbitrator not signing the award, the award shall not be set aside (Egyptian Court of Cassation, Decision No. 414/71JY, dated 8 January 2009).

Applicable procedural law for recourse against an award


Applicable legislation governing recourse against an award

2     Are there provisions governing modification, clarification or correction of  an award?

Article 49 of the EAA governs an arbitral tribunal’s authority regarding clarification or interpretation if there is any ambiguity in the arbitral award. Hence, the parties are entitled to request the arbitral tribunal, within 30 days of the day the party was notified of the arbitral award, to clarify any ambiguity that may taint the operative part of the arbitral award. However, the party requesting the clarification must notify the other party of that request before submitting it to the arbitral tribunal. The clarification award must be in writing and must be issued within 30 days, which, if necessary, can be extended to 30 more days, as of the day the request was submitted to the arbitral tribunal. The clarification award shall be supplementary to the original award and subject to the same rules.

Article 50 of the EAA governs the rectification of arbitral awards. If the award is tainted by a mere material error, be it typographical or a miscalculation, the arbitral tribunal is charged with rectifying such an error. It is entitled to issue a written rectification decision, ex officio, within 30 days of the date of issuing the award, or upon the request of any of the parties. The decision must be signed by the panel chairman as well as the co-arbitrators and notified to the parties within 30 days of its issuance.

However, the rectification decision must not amount to a review of the findings of the arbitral tribunal or else it may be annulled pursuant to Articles 53 and 54 of the EAA.

Additionally, Article 51 of the EAA entitles both parties, within 30 days of receiving an arbitral award, to request the arbitral tribunal to issue a complementary award deciding upon any issues that have been omitted by the arbitral award. The party requesting said complementary award must serve a notice thereof to the other party.


Appeals from an award

3     May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?

Article 52/1 of the EEA expressly excludes arbitral awards from being challenged through the means of recourse set forth for national court rulings. Hence an award cannot be the subject of appeal, cassation or a petition for reconsideration. However, by virtue of Article 52 of the EAA, it is possible to apply for setting aside any final arbitral award (Article 22/3 EAA) that has been issued as of 22 May 1994 (the date the EEA entered into force) and provided that the place of arbitration is Egypt, pursuant to exhaustive grounds listed in Article 53 of the EAA:

  • the first ground set forth in Article 53(a) relates to the absence or the invalidity of the arbitration agreement;
  • pursuant to Article 53(b), an award may be set aside if one of the parties lacked the legal capacity to contract arbitration at the time of the conclusion of the agreement;
  • Article 53(c) provides for the annulment of the award if there has occurred a violation of a party’s right to a due process;
  • additionally, if the arbitrators apply to the subject matter of the dispute a law other than the one agreed by the parties (Article 53(d));
  • if the arbitrators exceed the limits fixed in the agreement, the award may be set aside pursuant to Article 53(f). Exceptionally, if the parts of the award tainted by nullity owing to an excess of authority can be severed from the other parts of the award, only this part shall be affected by the nullity;
  • pursuant to Article 53(e), an award may be set aside if the constitution of the arbitral tribunal or the appointment of arbitrators contravened the law or the parties’ agreement;
  • Article 53(g) provides for the situation where the form according to which the arbitral award must have been issued was not respected (e.g., if the award does not contain the names of the arbitrators who have issued it or lacks the issuance date, or the reasons upon which it has been based). The same applies to a situation in which a flagrant contradiction in the reasoning of the tribunal can be detected. Additionally, the arbitral award may be set aside if any of the arbitral proceedings were tainted by nullity as to invalidate the award (e.g., if the award has been issued without due deliberation or when the notification of arbitration has been delivered to the opponent in a different manner from that which has been agreed between the parties);
  • according to Article 53(2), the national courts can set aside ex officio an arbitral award that violates Egyptian public policy but only in the context of ongoing setting aside proceedings. A violation may occur, for example, if the subject matter of the arbitration agreement is inarbitrable, which applies for the determination of criminal responsibility.

As to the difference between an appeal and an application to set aside, an appeal on a court judgment pursuant to Article 232 of the Code of Civil and Commercial Procedure (CCCP) involves a de novo review of the dispute, that is to say points of both fact and law contained in the ruling in question shall be subject to review during the appeal proceedings. Unlike an appeal, the setting aside procedure does not allow a review of the findings of the arbitrators but is a limited review of the existence of one of the aforementioned grounds of annulment. Hence, an error in judicando that results in the potential unfairness of the arbitral award without affecting its validity cannot give rise to a setting aside judgment. An error of law or an error relating to its application or interpretation cannot be sanctioned through the setting aside proceedings.

Applicable procedural law for recognition and enforcement of  arbitral awards


Applicable legislation for recognition and enforcement

4     What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

The EAA is the applicable law for the enforcement of arbitral awards, specifically Articles 55 to 58. However, the CCCP governs certain matters in respect of which the EAA is silent, such as the identification of the court that has jurisdiction to rule on a challenge to an order to grant exequatur of awards.

The EAA applies to the enforcement of arbitral awards rendered in proceedings in which the place of arbitration is Egypt. It also would apply to awards rendered in proceedings seated abroad, to the extent that the parties have agreed to apply Egyptian law to those proceedings (see Article 1 of the EAA). The EAA applies in general terms to ‘international commercial arbitration’ as defined in Articles 2 and 3 thereof.

With respect to foreign arbitral awards, the CCCP initially was the governing law. It contained provisions dealing explicitly with the enforcement of foreign arbitral awards (Articles 296 to 299). However, since the mid 2000s, case law has started applying the EAA to the enforcement of foreign awards, based on Article III of the New York Convention, because the EAA was considered to be less stringent than the CCCP in terms of conditions for enforcement and court fees (see, for example, Court of Cassation Decision Nos. 966/73J, dated 1 January 2005, and 15912/76J, dated 6 April 2015). In other cases, Egyptian courts have continued to allow award creditors to elect to enforce under the provisions of the CCCP (see, for example, Court of Cassation Decisions Nos. 913/73J, dated 23 February 2010 and 5000/78J, dated 28 April 2015). A key difference between the two sets of rules is that recognition and enforcement under the EAA is obtained through ex parte proceedings by a judge’s order, which is enforceable immediately, whereas the enforcement procedure under the CCCP requires the order to enforce to be obtained through adversarial proceedings by filing a lawsuit before the court of first instance, making the order enforceable only upon exhausting the appeal stage.

Egypt is party to a number of treaties that facilitate recognition and enforcement of arbitral awards. International treaties include the 1958 New York Convention (ratified in 1959) and the ICSID Convention (which entered into force in Egypt in 1972).

Regional treaties include The Riyadh Arabic Convention for judicial cooperation (2014), the Convention concerning the Settlement of Arab Investments Disputes (1976), and the Convention for promotion and protection of investments among the state members of the Islamic Conference Organization (1988).  

Treaties that are relevant to the enforcement of awards include bilateral treaties for judicial cooperation, including those with Germany (1970), Tunisia (1976), Kuwait (1977), Italy (1981), France (1983), Jordan (1987), Bahrain (1989), Libya (1993), China (1995), Morocco (1997), Hungary (1999), Syria (2000), UAE (2001) and Oman (2002).


The New York Convention

5     Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

Egypt ratified the New York Convention on 9 March 1959, by virtue of Presidential Decree No. 171/1959, without reservation, and the Convention entered into force as of 7 June 1959 (New York Convention Guide 1958, Egypt, http://newyorkconvention1958.org/index.php?lvl=notice_display&id=1724).

Recognition proceedings


Competent court

6     Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?

According to Articles 9 and 56 of EAA, jurisdiction over the enforcement of awards to which the EAA applies lies with the president of the court that was originally competent to adjudicate the dispute had there not been an arbitration agreement. Jurisdiction over the enforcement of international commercial awards lies with the President of the Cairo Court of Appeal, or any other court of appeal agreed by the parties, but excluding administrative courts of appeal even if the matter pertains to an administrative contract (see Constitutional Court Decision No. 47/31J, dated 15 January 2012). Jurisdiction over the enforcement of foreign awards lies with the President of the Cairo Court of Appeal. The judge concerned does not have the jurisdiction to review the judgment as a matter of law or fact or to assess its content or the process of decision-making involved in rendering it. The judge either affirms or rejects the order. He is not an appellate or review authority.

However, as per the Minister of Justice Decree No. 8310 for 2008 (as amended), the depositing of the arbitration before the Arbitration Bureau of the Ministry of Justice is a precondition to apply for enforcement as per Articles 46 and 56 of the EAA. As per Decree No. 8310, the Arbitration Bureau exercises a minimal review and a supervisory jurisdiction over the enforcement of an award. It allows the depositing of the award only after verifying that it includes no violation of public policy or pertains to matters that cannot be settled by agreement.

Finally, the Supreme Constitutional Court of Egypt has jurisdiction to rule on whether an award may be enforced in a situation where it is alleged that contradiction exists in respect of recognition and enforcement between the award and a final decision of a court or other judicial body (Article 25/3 of Constitutional Court Law No. 48/1979).


Jurisdictional issues

7     What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

The only legal text fixing jurisdiction regarding applications for recognition and enforcement of arbitral awards is in Articles 9 and 56 of the EAA (see discussion in question 6). These Articles are indifferent as to whether the other party has assets within the borders of its jurisdiction or not.

However, as per the Cairo Court of Appeal, to request the enforcement of an arbitral award, the enforcement proceedings must have a link with the Egyptian territory, regardless of the Egyptian courts’ jurisdiction over the dispute itself. This link is deemed to exist if any of the grounds of jurisdiction listed under Articles 28 to 34 of the CCCP can be established (Appeal No. 10/122JY, 91th Commercial Circuit, dated 30 May 2005).


Form of the recognition proceedings

8     Are the recognition proceedings in your jurisdiction adversarial or ex parte?

Enforcement proceedings, as per Article 56 of the EAA, are ex parte. In practice, there have been cases in which the judge sitting for the ex parte proceeding caused an applicant to serve the award debtor, for example where it is believed that a contradictory court judgment exists and was rendered before the arbitral award (see Article 58(2)(a) of the EAA).

However, the appeal proceedings against an enforcement order issued in the ex parte proceedings are adversarial, in accordance with Article 58(3) of the EAA, and Articles 197 to 199 of the CCCP. 


Form of application and required documentation

9     What documentation is required to obtain the recognition of an arbitral award?

Under Article 194 of the CCCP, the documentation required to obtain an enforcement order consists of two originals of the application. The judge or court renders the enforcement order on one of the two originals (Article 195, CCCP). As per Article 56 of the EAA (according to Ministerial Decree No. 8310/2008 as amended), the application should also include the following supporting documents:

  • the original award or a signed copy thereof;
  • an official certified Arabic translation of the award, if rendered in a language other than Arabic;
  • a copy of the arbitration agreement;
  • an official certified Arabic translation of the arbitration agreement, if originally drafted in a language other than Arabic;
  • the original of the notification made to the defendant of enforcement with the arbitration award, which is a practical requirement so that the judge can verify whether the time limit for bringing an annulment proceeding has expired as per Article 58(1) of the EAA;
  • an official copy of the certificate of the deposit of the award at the competent court, pursuant to Article 47 of the EAA;
  • the original of the notification made to the defendant of enforcement with the certificate of deposit of the award; and
  • the original of an official special power of attorney in the name of the applicant or portioner, if the application is submitted by a person other than the creditor of the award.

The application for recognition of the award can only be accepted after expiry of the time limit for filing an action to set aside the award, if any, which is 90 days from the date of notification of the judgment to the award debtor.

If an application lacks any required documents, the application will be denied. However, in practice, in some instances, an applicant will be notified and given an opportunity to complete them. 


Translation of required documentation

10     If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?

All the required documentation, if foreign, should be authenticated by the Egyptian Consulate in the country where the document has been originally issued.

All the documentation should be in Arabic, otherwise an official, certified Arabic translation should be submitted.


Other practical requirements

11     What are the other practical requirements relating to recognition and enforcement of arbitral awards?

A judge’s decision to grant an exequatur must be submitted to the competent court officer within 30 days of the date of its issuance to seal the award with the exequatur. Otherwise the decision shall become ineffective.

If the request for exequatur is dismissed, the award creditor can file a plaint against the decision pursuant to Article 58(3) of the EAA within 30 days in accordance with the procedure set forth by Article 197 of the CCCP. In any case, a decision, whether granting or denying the exequatur, has no res judicata effect and the applicant may reapply to obtain one. The court fees are assessed in accordance with Law No. 90/1944. 


Recognition of interim or partial awards

12     Do courts recognise and enforce partial or interim awards?

Recent case law in Egypt has confirmed the possibility of recognising and enforcing an interim award issued by a tribunal seated in a foreign country (Cairo Court of Appeal, Ruling No. 39/134JY, dated 8 November 2017).

As to the enforcement of partial awards, Article 42 of the EAA entitles the arbitrators to issue partial awards disposing finally of certain claims before issuing the award, and putting an end to the dispute. Partial awards can be subject to enforcement measures provided that they decide upon an issue that can be separately subject to enforcement proceedings and that the procedure for enforcing an arbitral award is followed.

According to Article 58(1) of the EAA, an application for enforcement is inadmissible unless the time limit of 90 days defined for bringing annulment proceedings (Article 54(1) of the EAA) has expired. The only exception is interim and conservatory awards, which as per Article 24 of the EAA, can be enforced with the permission of the tribunal, or by obtaining an enforcement order as per Article 56 of the EAA, as the case may be.


Grounds for refusing recognition of an award

13     What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?

According to Article 58(1) and (2) of the EAA, the grounds on which enforcement may be rejected or be found inadmissible are:

  • the time limit for bringing an annulment challenge, which is 90 days starting from the notification of the award to the debtor, has not expired;
  • violation of the public policy of Egypt, in that the award was not properly notified to the award debtor; or
  • the award contradicts a previous judgment rendered by the Egyptian courts and dealing with the same subject of the dispute.

With respect to foreign awards, the New York Convention supersedes national legislation and, accordingly, Egyptian courts have consistently rejected objections to enforcement on grounds available under the EAA or the CCCP but that are not part of the New York Convention.


Effect of a decision recognising an award

14     What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

Once the award is sealed by exequatur, it becomes immediately enforceable, and allows the award creditor to apply attachments to the assets of the debtor. Article 58(3) of the EAA originally did not allow any challenge to the order granting enforcement, while allowing the award creditor to challenge an order denying enforcement. This part of the Article was held to be unconstitutional for discriminating between the two situations with respect to the right of challenge (Supreme Constitutional Court, No. 92/21JY, hearing held on 6 January 2001). As such, an award debtor is now entitled to challenge an order granting enforcement.

One issue remains: the time limit for challenging an order granting enforcement. Case law and a number of scholars consider the time limit to make that challenge is 10 days starting from the date of presenting the order for enforcement or from the date of notifying the order to the debtor as per Article 197 of the CCCP. However, given that Article 58(3) of the EAA allows the award creditor 30 days to challenge the order denying enforcement, such ongoing difference between the respective rights of challenge was the subject of a number of unconstitutionality pleas for discriminating between the two parties as to the time limit for challenge, but the issue has not yet been finally settled by the Constitutional Court.


Decisions refusing to recognise an award

15     What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

As per Article 58(3) of the EAA, the award creditor may challenge a decision refusing enforcement within 30 days of the date the decision was issued, before the president of the court that rendered the decision.


Stay of recognition or enforcement proceedings pending annulment proceedings

16     Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

According to Article 57 of the EAA, an annulment action does not suspend enforcement. In practice, on occasion, an enforcement judge may refrain from deciding on an application for enforcement until the annulment action has been decided.

An award debtor may seek the suspension of enforcement either through annulment proceedings or, after an order of enforcement is granted, through an interim application to the enforcement judge in his authority as a summary judge by virtue of Article 275 of the CCCP, provided that an issue can be identified regarding said enforcement. Nevertheless, the court may order said suspension if the applicant requests it in his or her application and that request is based upon serious grounds (Article 57, EEA).

If the request is made before the enforcement judge, the matter is discretionary, but in most cases the request is denied.

Additionally, an award debtor may seek from the judge of enforcement, for reasons that arose after the award was rendered, a suspension of enforcement, after the order of enforcement is granted, on an interim or a substantive basis.


Security

17     If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

According to Article 57 of the EAA, if the court decides to adjourn recognition or enforcement proceedings pending the annulment proceedings, it may order the defendant to present security, but it also may not. So, it has a discretionary power regarding that matter, however, as explained in question 16, in most cases the request for suspension is rejected.


Recognition or enforcement of an award set aside at the seat

18     Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

Egyptian law does not explicitly allow the enforcement of an award that has been set aside at the seat of arbitration. There is also no precedent for an Egyptian court enforcing an award that was nullified at the seat of arbitration. However, the grounds for non-enforcement of an award do not include that the award was previously nullified at the seat of arbitration. In other words, the legislative possibility that an award nullified at the seat may be enforced by Egyptian courts exists.

When the award is set aside at the seat after an order of enforcement is granted, the debtor may seek a cancellation of the order through the challenge procedure. If the period during which a challenge can be made has expired, the award debtor may seek the cancellation of all enforcement proceedings made thereafter through a substantive application to the enforcement judge.

Service


Service in your jurisdiction

19     What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

If no international treaty or a specific provision of law is applicable, service shall be made via a court officer pursuant to the procedures set out in the CCCP in Articles 6 to 19, and, in respect of enforcement, Articles 281 to 285.


Service out of your jurisdiction

20     What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

If no international treaty or a specific provision of law is applicable, service, as per Article 13(9) of the CCCP, shall be through delivering the documents to the Public Prosecutor, who then sends them to the Minister of Foreign Affairs to be delivered through diplomatic channels.

However, if service is to a foreign company that has a branch or agent in Egypt, service shall be to that branch or agent, as per Article 13(5) of the CCCP.

Identification of assets


Asset databases

21     Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

A number of public registers can be helpful in identifying a debtor’s assets within Egypt. They include the real estate register office (for identification of land and real estate ownership) and the commercial register (for identification of commercial companies).


Information available through judicial proceedings

22     Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

There are a number of procedures that would result in the disclosure of information about an award debtor; for example, the application for conservatory or preventive attachment on the debtor’s properties in the possession of a third party as per Articles 325 to 352 of the CCCP. This would oblige that party, as per Article 339, to disclose all such properties, including debts within 15 days of notifying the attachment to the third party, unless the debtor deposits at the court an amount either equal to the amount of the award or as may be decided by the enforcement judge.

Also, pursuant to Article 789 of the Civil Code, if the debtor has a guarantor, who is not jointly liable with the debtor, the guarantor shall guide the creditor to assets of the debtor sufficient to settle the amount of the award, if he or she wishes to plea that the creditor shall seek enforcement and discharge the award on the debtor first.

Enforcement proceedings


Availability of interim measures

23     Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

Interim measures against assets are available; for example, an award creditor may apply for conservatory attachment on the debtor’s assets by virtue of the arbitration award without the need to obtain an enforcement order and, according to some, even if the order is denied.

According to the Egyptian Court of Cassation, the customary public international law constitutes an integrated part of Egyptian internal legislation (Court of Cassation Decision No. 1412/50JY, dated 29 April 1986). These rules prevent award creditors from applying for interim measures on assets owned by a foreign state because of the state’s immunity from enforcement, unless the state has expressly consented to take such measures, or the property was in use by the state for purposes other than government non-commercial purposes (International Court of Justice decision, Germany v. Italy, dated 3 February 2012, at Paragraph 116). Note that a waiver of immunity from jurisdiction does not imply waiver of immunity in respect of the enforcement of the judgment, even if lawfully rendered (as by the International Court of Justice in Germany v. Italy, at Paragraph 113).


Procedure for interim measures

24     What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

Generally, interim measures are obtained through adversarial proceedings (i.e., by bringing a lawsuit before the judge for interim measures). The applicant shall demonstrate that his or her rights would be jeopardised by the passage of time, and that his or her right is probable prima facie.

In addition, an award creditor may apply a conservatory attachment by virtue of the award, even if not yet enforceable, given that the conservatory attachment applies only to movable property. The attachment is applied through the court bailiffs and is notified to the debtor within eight days (Article 320, CCCP), failing which it becomes invalid. If the property is in the possession of a third party, the attachment is applied by a notification to that party, including of the information required under Article 328 of the CCCP, and shall be notified to the debtor within eight days, otherwise the attachment becomes invalid. These attachments have the effect of freezing the attached property, preventing the debtor or the third party from any acts of disposition or transfer, and hence providing security for the award.


Interim measures against immovable property

25     What is the procedure for interim measures against immovable property within your jurisdiction?

Unlike monetary, movable and intangible assets, interim measures in respect of immovable properties can be obtained only through adversarial proceedings as explained in question 24, and cannot be subject to conservatory attachment.


Interim measures against movable property

26     What is the procedure for interim measures against movable property within your jurisdiction?

See questions 23 and 24 (as per Article 316, CCCP).


Interim measures against intangible property

27     What is the procedure for interim measures against intangible property within your jurisdiction?

In principle, interim measures against intangible property are mainly subject to the same rules of interim measures on movable property, including conservatory attachment, as explained in questions 23 and 24. Furthermore, the CCCP governs the provisions regarding shares and securities by which they are attached by the same measures as for movable property (Article 398) and regular revenues, in-name shares, profit shares that are attached by the same method of attachment of property in the possession of a third party (Article 399).


Attachment proceedings

28     What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

Pursuant to Article 281 of the CCCP, the debtor must be served a notice in person or at his or her original residency, including the exact amount of the debt, and be summoned to pay. At least a day after the notice is served, and upon submitting the enforcement title (which must have obtained exequatur or be exempted from that requirement by the force of the law or by a judicial decision) to the court bailiffs, assistants of the enforcement judge are obliged to proceed with the enforcement proceedings. If they do not do so, the creditor may submit the enforcement title to the enforcement judge (Article 279 of the CCCP). In that event, the debtor is not required to appear before the judge of enforcement.


Attachment against immovable property

29     What is the procedure for enforcement measures against immovable property within your jurisdiction?

Attachment against immovable property starts with a notification to the debtor and any third party who has a pledge on the property, that, if the debtor did not pay, the notice shall be entered on the Real Estate Register and the property shall be sold involuntarily. The notice shall include sufficient description of the property in accordance with the Real Estate Registration Law, and shall define the enforcement title, its date and the amount to be paid (see Article 401 of the CCCP). Upon registration of that notice, the property is considered attached (Article 404 of the CCCP). If, before registration, a third party who acquired an in rem guarantee on the property by a registered contract shall be notified to pay the debt or evacuate the property, otherwise enforcement shall take place. This latter notice shall also be registered (Article 411 of the CCCP).

Upon deciding on any objections to the forced sale, and after verifying that the enforcement title is final, the enforcement judge, upon the creditor’s request, will render an order defining the sale session and starting the sale procedures (Articles 414 to 426 of the CCCP).


Attachment against movable property

30     What is the procedure for enforcement measures against movable property within your jurisdiction?

Attachment of movable property is made by the court officer via a report at the location of the property (Article 353 of the CCCP). The property is considered attached once stated in the minutes of the procedure (Article 361 of the CCCP), and the court officer shall undertake certain publishing procedures. If the attachment takes place in the presence of the debtor or at his or her domicile, a copy of the minutes shall be delivered to him or her, otherwise it shall be notified to him or her the next day at the latest (Article 362 of the CCCP). The sale shall not take place sooner than eight days after this notification and one day after completion of the publication procedure (Article 376 of the CCCP).

If the attachment is made on a property in the possession of a third party, that third party shall pay the creditor within 15 days of disclosure by the third party of the property in his or her possession (Article 344 of the CCCP), provided that prior notice of at least eight days was given to the debtor (Article 285 if the CCCP). If payment did not take place and the amount set by the enforcement judge was not deposited, the property shall be sold as per the procedures described in question 29 (Articles 346 to 348 of the CCCP). (Additional procedures may apply to the sale of shares, which may require the involvement of a broker; see Article 400 of the CCCP.)


Attachment against intangible property

31     What is the procedure for enforcement measures against intangible property within your jurisdiction?

In the case of securities and shares for the bearer or which are assignable, they are attached in the same way as described in questions 27 and 30.

Regular revenues, in-name shares, profit shares are attached in the same way as with respect to property in the possession of a third party.

The sale of these assets is made through a broker to be designated by the enforcement judge (Articles 398 to 400, CCCP).

Enforcement against foreign states


Applicable law

32     Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

There are no specific rules that govern recognition and enforcement of arbitral awards against foreign states in Egypt.


Service of documents to a foreign state

33     What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

The applicable procedure for service of extrajudicial and judicial documents to a foreign state is governed by the Hague Service Convention of 15 November 1965. Alternatively, service can be made through diplomatic channels, by submitting the notice to the Public Attorney’s office in Egypt.


Immunity from enforcement

34     Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

There is no clear body of rules governing foreign state immunity from enforcement in Egypt. However, the Egyptian Court of Cassation has ruled that customary public international law constitutes an integrated part of Egyptian internal legislation (Court of Cassation, Decision No. 1412/50JY, dated 29 April 1986). Hence, enforcement proceedings shall not take place on assets owned by a foreign state, because of the state’s immunity from enforcement, unless the state has expressly consented to take such measures, or the property was in use by the state for purposes other than government non-commercial purposes (see International Court of Justice decision, Germany v. Italy, dated 3 February 2012, at Paragraph 116).


Waiver of immunity from enforcement

35     Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

Yes, it is possible for a foreign state to waive immunity from enforcement in Egypt. There are no specific requirements regarding the effectiveness of the waiver.


Notes

[1] Karim A Youssef is a managing partner at Youssef & Partners.