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?
Article 43 of Law No. 27/1994 (the Egyptian Arbitration Act (EAA)) sets forth a limited list of the requirements applicable to the form of an 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. A written document is the only means of presenting the execution of an 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 the award (Cairo Court of Appeal, 8th Commercial Circuit No. 28/124 JY, 20 November 2007 (Award Annulment)).
Moreover, under Article 43 of the EAA, an arbitral award must include the names of the parties and their respective addresses as well as the names, addresses and nationalities of the arbitrators.
A summary of the parties’ claims, statements and exhibits must also be included in the award. According to a decision of the Egyptian Court of Cassation, a copy of the arbitration agreement is no longer required to be included in the arbitral award (Egyptian Court of Cassation, Decision No. 414/71 JY, 8 January 2009).
An arbitral award must be reasoned. In other words, the award must set forth the basic reasoning of the arbitral panel on the central issues raised during the arbitration process. An exception is made 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 containing the decision.
Ideally, the signature of each member of the arbitration tribunal is required on all pages of the award. Signing the last page only may suffice if the operative part of the judgment is connected to the reasons. However, if a party can establish that the signature (or signatures) provided on the last page only is necessarily related to a lack of deliberation, the award may be subject to nullification (Egyptian Court of Cassation, Decision No. 1394/86JY, 13 June 2017).
An arbitral award can be validly issued with the signatures of the majority of the panel members. If this is the case, the reason for the omission of signatures of certain arbitrators must be given. However, the award may only be nullified if the concerned party successfully proves that the reason for the omission of signatures is indeed the absence of deliberation (Egyptian Court of Cassation, Decision No. 4457/77JY, 9 November 2010).
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 latter shall prevail, as long as it does not violate Egyptian mandatory rules. 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 why an arbitrator has not signed the award, the award shall not be set aside because this rule does not violate mandatory rules (Egyptian Court of Cassation, Decision No. 414/71JY, 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? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)?
Article 49 of the EAA grants the arbitral tribunal the power to clarify or interpret any ambiguity in the arbitral award at the request of either party. This request must be made within 30 days of receiving the arbitral award. The party intending to make a clarification request must first notify the other party to the arbitration before submitting the request to the arbitral tribunal. The clarification award must be in writing and must be issued within 30 days of receipt of the clarification request. If necessary, the tribunal may extend that period by another 30 days. The clarification award shall be supplementary to the original award and subject to the same rules.
According to Article 50 of the EAA, the arbitral tribunal has the power to correct any exclusively material errors, whether typographical or in computation. The correction may be undertaken by the arbitral tribunal on its own initiative or at the request of either party. The tribunal must issue a written correction, ex officio, within 30 days of the issuance of the award or on receipt of a request from either party; it may extend this period by another 30 days if it is deemed necessary. The decision must be signed by the tribunal’s chairman and the co-arbitrators and notified to the parties within 30 days of its issuance.
However, the correction 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 on any issues that have been omitted from the award. The party requesting a complementary award must serve a notice thereof to the other party.
Retractation is not available as an option for the arbitration tribunal. However, the award may be subject to a setting-aside procedure for fraud or other reasons.
Appeals from an award
3 May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?
Article 52/1 of the EEA expressly excludes arbitral awards from being challenged through the means of recourse provided for national court rulings. Hence, an award cannot be the subject of appeal, cassation or a petition for reconsideration. However, Article 52 of the EAA provides for an action to set aside final arbitral awards while observing the jurisdictional considerations, pursuant to the grounds listed in Article 53 of the EAA.
As to the difference between an appeal and an application to set aside, an appeal to 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, a review of 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 factual findings of the arbitrators but is a limited review of the existence of one of the listed grounds of annulment. Hence, an error in judicando that results in the potential unfairness of the arbitral award without affecting its validity under any one of the listed grounds cannot give rise to a setting-aside judgment. However, it must be noted that gross or manifest unfairness can be considered a ground to set aside an arbitral award (Cairo Court of Appeal, First Commercial Circuit, No. 39/130 JY, 3 June 2020). An error of law or an error relating to its application or interpretation, without more, cannot give rise to setting-aside proceedings.
Applicable procedural law for setting aside of arbitral awards
4 Is there a time limit for applying for the setting aside of an arbitral award?
According to Article 54 of the EAA, an application for the setting aside of an arbitral award must be filed within 90 days of the date of the notification of the arbitral award to the party against whom it was made.
5 What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?
Only final arbitral awards are subject to setting-aside procedures. Therefore, partial awards and interim measures issued by an arbitral tribunal cannot be set aside separately from the final award as they are not final decisions (Egyptian Court of Cassation, Decision No. 648/73 JY, 13 December 2005).
The EAA is silent on the setting aside of interim measures; however, some jurists are of the opinion that Article 212 of the CCCP is applied as the general rule governing cases before national courts that permits nullification of interim measures.
6 Which court has jurisdiction over an application for the setting aside of an arbitral award?
According to Article 54 of the EAA, the Cairo Court of Appeal has jurisdiction over an application for the setting aside of an award rendered in international commercial arbitrations. However, in cases not concerning international commercial arbitration, jurisdiction lies with the court of appeal having competence over the court of first instance that would have initially had jurisdiction to adjudicate the dispute.
In national administrative disputes, jurisdiction lies with the Supreme Administrative Courts (Egyptian Supreme Administrative Court, Decision No. 1408/50 JY, 28 March 2017).
Form of application and required documentation
7 What documentation is required when applying for the setting aside of an arbitral award?
The EAA is silent in this regard. However, the procedures for the setting aside of an arbitral award are similar to those for filing a lawsuit before national courts (Egyptian Court of Cassation, Decisions No. 661 and No. 662/72 JY, 1 August 2005). According to Article 63 of the CCCP, the plaintiff must file its claim before the competent court through a memorandum of claim, which must include the following:
- the plaintiff’s name, profession, domicile and its representative’s information;
- the defendant’s name, profession, domicile and its representative’s information;
- the date of the submission of the claim;
- the name of the court before which the claim is filed;
- the case’s factual assertions, claims, evidence and proofs, and details of the relief sought;
- the plaintiff’s chosen domicile in the city in which the competent court is located, if its domicile is in a different city; and
- the documents attached to the claim.
In addition to the above-mentioned information, the application must include the grounds for setting aside the arbitral award. An error in any of the required information or its omission from the submission (CCCP, Article 63) does not necessarily lead to the setting aside of the award unless it misleads or confuses the other party with regard to the award in question (Cairo Court of Appeal, Commercial Circuit 91, 27 March 2005 in Appeal No. 51/121 JY). Furthermore, a certified copy of the arbitral award and notification thereof must be presented, otherwise the court can dismiss the annulment claim.
Translation of required documentation
8 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 the application for the setting aside of an arbitral award? If yes, in what form must the translation be?
The official language of the court is Arabic, and it is necessary to submit an Arabic translation of any document that is drafted in another language. A certified translation is not required unless a party disputes the presented translation (Egyptian Court of Cassation, Decision No. 19354/85 JY, 13 June 2017).
Other practical requirements
9 What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
There are no limitations on the length of the submissions and of the documentation filed by the parties. However, any documents in foreign languages must be translated into Arabic.
Form of the setting-aside proceedings
10 What are the different steps of the proceedings?
The party filing the set-aside procedures shall provide a lawyer admitted before Egyptian courts with a valid power of attorney issued by the party or its legal representative. The retained lawyer will then file a statement of claim with the registrar of the competent court.
After the case is recorded and given a reference number, a first hearing session will be scheduled. During the period between the initial filing of the application and the first scheduled hearing session, a certified copy of the statement of claim shall be served to the defendant via a court bailiff. (Note that the serving process of a party residing abroad is lengthier compared to domestic notification.)
If the claimant was unable to serve the statement of claim to the respondent before the scheduled session, the court will grant an adjournment to finalise the notification procedures.
Several hearing sessions would normally take place before the court issues its final ruling. The ruling of the competent court is subject to challenge before the Court of Cassation.
11 Do setting-aside proceedings have suspensive effect? May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction?
According to Article 57 of the EAA, setting-aside proceedings do not automatically entail a suspensive effect.
Nevertheless, the court has the power to order a suspension if the applicant includes a request for suspension in the setting-aside application. The court shall rule on the request for suspension of the enforcement within 60 days of the date of the first scheduled hearing. If suspension is ordered, the court may require the provision of a given guarantee or financial security. When the court orders suspension of enforcement, it must rule on the action for annulment within six months of the date when the suspension order was rendered.
Grounds for setting aside an arbitral award
12 What are the grounds on which an arbitral award may be set aside?
According to Article 53(1) of the EAA, an arbitral award may be annulled on the following grounds:
- the absence or the invalidity of the arbitration agreement;
- the lack of legal capacity of either party – whether fully or partially – to enter into an arbitration agreement at the time of its conclusion;
- violation of a party’s right to a due process, including the inability of either party to present their case as a result of not being given proper notice of the appointment of an arbitrator or of the arbitral proceedings or for other reasons beyond its control;
- if the arbitral award failed to apply the law agreed by the parties to the subject matter of the dispute;
- if the constitution of the arbitral tribunal or the appointment of arbitrators is in violation of the law or the parties’ agreement;
- if the arbitral award dealt with matters that fall outside the scope of the arbitration agreement or exceeded the agreement. However, if matters falling within the scope of the arbitration can be separated from the part of the award that contains matters not included within the scope of the arbitration, the nullity affects exclusively the latter parts only; and
- if the award is vitiated or a procedure affecting the judgment was vitiated in a manner that affects the verdict (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 on which it has been based, or 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 agreed between the parties). The same applies to a situation in which a flagrant contradiction of the reasoning of the tribunal can be detected.
In addition to the above, Article 53(2) grants the court adjudicating the action for annulment the power to set aside an arbitral award that violates Egyptian public policy by operation of law. A violation may occur, for example, if the subject matter of the arbitration agreement is inarbitrable (i.e., criminal responsibility).
Decision on the setting-aside application
13 What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?
The effect of an award being nullified is that the award becomes wholly or partially void, depending on the setting-aside claim. Any set-aside parts of the award become void and without effect (see, e.g., Egyptian Court of Cassation, Decision No. 1503/49 JY, 30 December 1980).
Additionally, any explanatory award issued in relation to the arbitral award also becomes void as, according to Article 49/3 of the EAA, an explanatory award made by an arbitral tribunal shall form an integral part complementing the arbitral award.
However, if annulment of the award was the result of the nullification of the arbitration agreement itself, the parties must enter into another arbitration agreement before the dispute can be subject to arbitration again.
If either party is not satisfied with the setting-aside decision, a challenge may be filed to the Court of Cassation on alleged errors of law.
Effects of decisions rendered in other jurisdictions
14 Will courts take into consideration decisions rendered in the same matter in other jurisdictions or give effect to them?
With respect to arbitral awards issued in Egypt and subject to the EAA, the competent Egyptian court would enjoy concurrent jurisdiction over the setting-aside application. In practice, it is highly unlikely that an Egyptian court would give effect to decisions rendered in the same matter in other jurisdictions.
Applicable procedural law for recognition and enforcement of arbitral awards
Applicable legislation for recognition and enforcement
15 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 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 EAA, Article 1). 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 understood as the sole governing law. It contains provisions dealing explicitly with the enforcement of foreign arbitral awards (Articles 296 to 301). 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, e.g., Court of Cassation Decisions No. 966/73J, 10 January 2005, and No. 15912/76J, 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, e.g., Court of Cassation Decisions No. 913/73J, 23 February 2010 and No. 5000/78J, 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 Arab 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 Member States 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
16 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).
17 Is there a time limit for applying for the recognition and enforcement of an arbitral award?
According to Article 58 of the EAA, applications for the enforcement of an arbitral award shall not be admissible before expiry of the period during which the action for annulment should be filed with the court registry (90 ays).
18 Which court has jurisdiction over an application for recognition and enforcement of an arbitral award?
According to Articles 9 and 56 of the EAA, jurisdiction over the enforcement of awards to which the EAA is applicable 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 Supreme Constitutional Court Decision No. 47/31JY, 15 January 2012). Jurisdiction over the enforcement of foreign awards lies with the President of the Cairo Court of Appeal.
The competent judge 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 or she 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 applying 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 (Constitutional Court Law No. 48/1979, Article 25/3).
Jurisdictional and admissibility issues
19 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? 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. 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, the enforcement procedures of an arbitral award may only be admissible if assets within the Egyptian territory were available for attachment (in particular immovable assets) (Cairo Court of Appeal No. 10/122JY, 91th Commercial Circuit, 30 May 2005).
Form of the recognition proceedings
20 Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?
Enforcement proceedings, as per Article 56 of the EAA, are ex parte. In practice, there have been rare 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 EAA, Article 58(2)(a)).
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
21 What documentation is required to obtain recognition?
The depositing of an arbitral award is a preliminary requirement for initiating enforcement proceedings.
Article 47 of the EAA obliges the party in whose favour the arbitral award has been made, to submit at the Secretariat of the court referred to in Article 9 of the EAA the original award, or a copy thereof in the language in which it was rendered, or an Arabic translation thereof authenticated by a competent translator if it was rendered in another language. According to Article 9, the court’s secretary shall evidence the submission in minutes (procès-verbal) and each of the two parties to arbitration may request a copy of the procès-verbal.
In implementing Article 47 of the EAA, the Minster of Justice issued Decree No. 8310/2008 on 21 September 2008 (published in the Official Gazette on 7 October 2008) regarding the procedure for the submission of arbitral awards (as amended by virtue of Ministerial Decrees No. 6570/2009 published in the Official Gazette on 13 July 2009 and No. 9739/2011 issued on 5 October 2011 and published in the Official Gazette on 15 October 2011). The procedures required for the submission of an arbitral award include, inter alia, the following.
First, a court notice must be served on the opposing party notifying the latter of the arbitral award. This notice will be accompanied by a copy of the original award.
The original version of the arbitral award is deposited with the Secretariat of the relevant court referenced in Article 9 of the EAA. In this respect, a special power of attorney is issued by the party seeking enforcement to the legal counsel empowering the latter to undertake the execution procedures to deposit the award. A copy of the arbitral award is then submitted to the Ministry of Justice’s Technical Office for Arbitration. In practice, the secretariat of the court may refer the execution file to the Technical Office for Arbitration or request the party seeking enforcement to handle this issue.
Following receipt of the Technical Office’s opinion, the secretariat of the court will issue the procès-verbal recording the submission of the award. Thereafter, another court notice is served on the opposing party informing them of the receipt of the procès-verbal.
On the completion of the foregoing procedures, and following the lapse of 90 days from the date of serving the award on the opposing party, an application could be submitted to the president of the court requesting the issuance of an execution order exequatur.
According to Article 194 of the CCCP, the documentation required to obtain an enforcement order consists of two originals of the application. The judge renders the enforcement order on one of the two originals (CCCP, Article 195). The application must also include the following supporting documents:
- 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 notification served to the opposing party notifying it of the arbitral award. This notice shall be accompanied by a copy of the original award and its certified Arabic translation;
- an official certificate confirming submission of the award at the secretariat of the competent court; 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.
An application for recognition of the award can only be accepted after the lapse of 90 days from the date of serving the award on the opposing party.
If the application lacks any of the above required documents, the application would be denied; however, as a matter of practice, in some instances, the applicant would be notified and invited to complete them.
Translation of required documentation
22 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? If yes, in what form must the translation be?
Yes, in these circumstances an official and certified Arabic translation must be submitted.
Other practical requirements
23 What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
A judge’s decision to grant an exequatur must be submitted to the competent court bailiff 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 petition to appeal the decision pursuant to Article 58(3) of the EAA within 30 days of the date thereof. 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
24 Do courts recognise and enforce partial or interim awards?
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, 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 on 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 (EAA, Article 54(1)) 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 arbitral award
25 What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under Article V of the New York Convention?
According to Article 58, Paragraphs (1) and (2) of the EAA, the grounds on which enforcement may be rejected or be found inadmissible are:
- the application for enforcement was submitted before the lapse of 90 days from the date of serving the award on the opposing party (the period during which the action for setting-aside procedures shall be filed);
- the award contradicts a judgment previously rendered by the Egyptian courts on the subject matter of the dispute;
- the award violates public policy in Egypt; or
- the award was not properly notified to the opposing party.
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 arbitral award
26 What is the effect of a decision recognising an arbitral award in your jurisdiction?
Once the award is sealed by exequatur, it becomes enforceable, and allows the award creditor to initiate collection proceedings, such as to seek to apply attachments to assets of the debtor.
Originally, Article 58(3) of the EAA 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 to be 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, the continued difference between the respective rights of challenge has been 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 arbitral award
27 What challenges are available against a decision refusing recognition 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.
Recognition or enforcement proceedings pending annulment proceedings
28 What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?
According to Article 57 of the EAA, an annulment action does not automatically suspend enforcement. In practice, an enforcement judge often refrains from deciding on the application for enforcement until the annulment action has been decided.
An award debtor may seek the suspension of enforcement proceedings after the other party has obtained an exequatur through an application to the enforcement judge in his or her authority as a summary judge by virtue of Article 275 of the CCCP.
If the request for a stay or suspension of enforcement is made before the enforcement judge, the matter is discretionary, but in most cases the request is granted until the setting-aside proceedings are finalised.
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.
29 If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?
According to Article 57 of the EAA, if the court decided to suspend enforcement pending the annulment proceedings, it may order the defendant to present security.
Recognition or enforcement of an award set aside at the seat
30 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 arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?
Egyptian law does not explicitly allow the enforcement of an award that has been set aside at the seat of arbitration, nor does it explicitly bar its enforcement. There is also no precedent in which an Egyptian court has addressed the enforcement of an award that was nullified at the seat of arbitration. One commentator has posited that nullified foreign awards may indeed be enforced by Egyptian courts. This aspect has not yet been firmly settled.
Service in your jurisdiction
31 What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?
If no international treaty or a specific provision of law is applicable, service shall be made via a court bailiff pursuant to the procedures set out in Articles 6 to 19 of the CCCP and, in respect of enforcement, Articles 281 to 285. Generally, the process of serving natural persons or companies residing in Egypt is very simple and usually takes between two and five days for serving each respondent.
It is necessary to submit an Arabic translation of any document that is drafted in another language.
Service out of your jurisdiction
32 What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction?
If no international treaty or a specific provision of law is applicable, the CCCP rules apply. The process of serving a defendant residing abroad is a lengthier process as the service is required to be served by diplomatic means, which usually takes 90 days. As per Article 13(9) of the CCCP, the extrajudicial and judicial documents, and any supporting documents, are initially delivered to the Public Prosecutor, who then sends them to the Minister of Foreign Affairs to be delivered through diplomatic channels.
However, serving on a foreign company that has a branch or an agent in Egypt must be to that branch or agent as per Article 13(5) of the CCCP.
Identification of assets
33 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’s office (for identification of land and real estate ownership), the commercial register (for identification of commercial companies) and the Movable Securities Registrar.
Information available through judicial proceedings
34 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 of the CCCP, 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.
Furthermore, 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.
35 What kinds of assets can be attached within your jurisdiction?
By virtue of the CCCP, conservatory attachment is applicable on the debtor’s movable property (CCCP, Article 316). Stocks, securities, shares and bonds are also assets that can be subjected to attachment under Article 398 of CCCP.
Availability of interim measures
36 Are interim measures against assets available in your jurisdiction?
Interim measures against assets are available. For example, an award creditor may apply for conservatory attachment of 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, customary public international law constitutes an integrated part of Egyptian internal legislation (Court of Cassation Decision No. 1412/50JY, 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 against enforcement, unless the state has expressly consented to take such measures, or the property was in use by the state for purposes other than non-commercial government purposes (International Court of Justice decision, Germany v. Italy, 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
37 What is the procedure to apply interim measures against assets in your jurisdiction?
Generally, interim measures are obtained through adversarial proceedings (i.e., by filing an application 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 bailiff and is notified to the debtor within eight days (CCCP, Article 320), 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 of the date of its signature, 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
38 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 property can be obtained only through adversarial proceedings cannot be subject to conservatory attachment.
Interim measures against movable property
39 What is the procedure for interim measures against movable property within your jurisdiction?
A creditor may initiate interim measures by filing an application before the judge for interim measures. The applicant must demonstrate that his or her rights would be jeopardised by the passage of time, and that his or her right is probable prima facie. The judge will issue a decision on the same day or the day after with no requirement to notify the counterparty.
Interim measures against intangible property
40 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. 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 and profit shares that are attached by the same method of attachment of property in the possession of a third party (Article 399).
41 What is the procedure to attach assets in your jurisdiction?
Pursuant to Article 281 of the CCCP, the debtor must be served a notice in person or at his or her original residence, 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, the creditor may submit the enforcement title to the enforcement judge (CCCP, Article 279). In that event, the debtor is not required to appear before the enforcement judge.
Attachment against immovable property
42 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 mandatorily. 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 CCCP, Article 401). Upon registration of that notice, the property is considered attached (CCCP, Article 404). 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 vacate the property, otherwise enforcement shall take place. This latter notice shall also be registered (CCCP, Article 411).
Upon deciding on any objections to the forced sale, and after verifying that the enforcement title is final, the enforcement judge, at the creditor’s request, will render an order defining the sale session and starting the sale procedures (CCCP, Articles 414 to 426).
Attachment against movable property
43 What is the procedure for enforcement measures against movable property within your jurisdiction?
Attachment of movable property is made by the court bailiff via a report at the location of the property (CCCP, Article 353). The property is considered attached once stated in the minutes of the procedure (CCCP, Article 361), and the court bailiff 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, or notified to him or her the next day at the latest (CCCP, Article 362). The sale shall not take place sooner than eight days after this notification and one day after completion of the publication procedure (CCCP, Article 376).
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 (CCCP, Article 344), provided that prior notice of at least eight days was given to the debtor (CCCP, Article 285). If payment did not take place and the amount set by the enforcement judge was not deposited, the property shall be sold (CCCP, Articles 346 to 348). Additional procedures may apply to the sale of shares, which may require the involvement of a broker (see CCCP, Article 400.)
Attachment against intangible property
44 What is the procedure for enforcement measures against intangible property within your jurisdiction?
In the case of securities and shares for the bearer or that are assignable, they are attached in the same way as for interim measures against intangible property.
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 (CCCP, Articles 398 to 400).
Attachments against bank accounts
45 Is it possible in your jurisdiction to attach bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible in your jurisdiction to attach the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?
Generally, financial securities are subjected to attachment under the CCCP, by virtue of Article 359. The CCCP stipulates that if the funds of the debtor are in the possession of a third party, the creditor can apply an attachment (Article 325).
Jurisdiction of Egyptian courts to attach bank accounts is limited to the assets available on Egyptian soil, so the attachment of bank accounts opened in a branch or subsidiary of a foreign bank located in Egypt is admissible. However, the attachment of bank accounts opened in a branch or subsidiary of an Egyptian bank located abroad will not be admissible since Egyptian courts have no jurisdiction out of the Egyptian territory.
Enforcement against foreign states
46 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. Recognition and enforcement of foreign arbitral awards are subject to the New York Convention.
Availability of interim measures
47 May award creditors apply interim measures against assets owned by a sovereign state?
According to the Egyptian Court of Cassation, customary public international law constitutes an integrated part of Egyptian internal legislation (Court of Cassation Decision No. 1412/50JY, 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 non-commercial government purposes (International Court of Justice decision, Germany v. Italy, 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).
Service of documents to a foreign state
48 What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?
The applicable procedure for service of extrajudicial and judicial documents to a foreign state is governed by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965. Alternatively, service can be made through diplomatic channels, by submitting the notice to the Public Attorney’s office in Egypt. It is necessary to submit an Arabic translation of any document that is drafted in another language.
Immunity from enforcement
49 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to 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, 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 non-commercial government purposes (see International Court of Justice decision, Germany v. Italy, 3 February 2012, at Paragraph 116).
Waiver of immunity from enforcement
50 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?
Yes, it is possible for a foreign state to waive immunity from enforcement in Egypt. There are no other requirements of the effectiveness of the waiver other than those that may be provided for in the Vienna Convention on Diplomatic Relations of 1961.
Piercing the corporate veil and alter ego
51 Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?
Enforcement proceedings shall not take place on assets owned by a foreign state because of the state’s immunity against enforcement, unless the state has expressly consented to take such measures, or the property was in use by the state for purposes other than non-commercial government purposes (see International Court of Justice decision, Germany v. Italy, 3 February 2012, at Paragraph 116).
 Karim A Youssef is a managing partner at Youssef & Partners.