Investment Treaty Arbitration: Egypt

Albania (6 April 1994)

No

Yes

Yes

Yes

No

6 months

No

Yes

Algeria (3 May 2000)

Yes

Yes

Yes

Yes

Inconclusive

6 months

Yes

Yes

Argentina (3 December 1993)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Armenia (1 March 2006)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Australia (5 September 2002)

Yes

Yes

Yes

Yes

No

Yes (not specified)

Yes

Yes

Austria (29 April 2002)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Azerbaijan (signed on 24 October 2002, but not in force)1

Bahrain (11 January 1999)

Yes

Yes

Yes

Yes

Yes

Yes (not specified)

No

Yes

Belarus (18 January 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Belgium–Luxembourg (old BIT – 20 September 1978) Terminated on 24 May 2002

Yes

Yes

Yes

Yes

No

No

No

Yes

Belgium–Luxembourg (24 May 2002)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Bosnia and Herzegovina (29 October 2001)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Botswana (signed on 2 July 2003, but not in force)2

Bulgaria (8 June 2000)3

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Burundi (signed on 13 May 2012, but not in force)4

Cameroon (signed on 24 October 2000, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Canada (3 November 1997)

Yes

Yes

Yes

Yes

No

6 months

No

Yes5

Central African Republic (signed on 7 February 2000, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Chad (signed on 14 March 1998, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Chile (signed on 5 August 1999, but not in force)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

China (1 April 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes6

Comoros (27 February 2000)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Democratic Republic of Congo (signed on 18 December 1998, but not in force)

Yes

Yes

Yes

No

No

6 months

Yes

Yes

Croatia (2 May 1999)

Yes

Yes

No

Yes

No

6 months

Yes7

Yes

Cyprus (11 May 1999)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Czech Republic (4 June 1994)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Denmark (29 October 2000)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Djibouti (signed on 21 July 1998, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Ethiopia (27 May 2010)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Finland (old BIT – 22 January 1982) Terminated on 5 February 2005

Yes

Yes

No

Yes

No

Yes (not specified)

Yes

Yes

Finland (5 February 2005)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

France (1 October 1975)

Yes

Yes

No

Yes

Inconclusive

3 months

No

Yes

Gabon (signed on 22 December 1997, but not in force)

Yes

Yes

Yes

Yes

Yes

12 months

Yes

Yes

Georgia (signed on 3 June 1999, but not in force)

No

Yes

No

Yes

No

6 months

Yes8

Yes

Germany (old BIT – 5 July 1974) Terminated on 22 November 2009

Yes

Yes

Yes

Yes

No

Yes (not specified)

Yes

Yes

Germany (22 November 2009)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Ghana (signed on 11 March 1998, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Greece (old BIT – 3 February 1977) Terminated

Yes

Yes

Yes

Yes

No

Yes (not specified)

Yes

Yes9

Greece (6 April 1995)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Guinea (signed on 6 March 1998, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Hungary (21 August 1997)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Iceland (15 June 2009)

Yes

Yes

Yes

Yes

No

Yes (not specified)

Yes

Yes

India (22 November 2000) Terminated on 29 March 2016

Yes

Yes

No

Yes

No

6 months

Yes

Yes10

Indonesia (29 November 1994) Terminated on 30 November 2014

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Islamic Republic of Iran (signed on 25 May 1977, but not in force)11

No

Yes

Yes

Yes

Yes

2 months

No

Yes

Italy (old BIT – 30 October 1981) Terminated

Yes

Yes

Yes

Yes

No

Yes (not specified)

Yes12

Yes

Italy (1 May 1994)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Jamaica (signed on 10 February 1999, but not in force)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Japan (14 January 1978)

No

Yes

Yes

Yes

No

No

No

Yes

Jordan (11 April 1998)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Kazakhstan (8 August 1996)

Yes

Yes

No

Yes

No

No

No

Yes

Kuwait (old BIT – 9 August 1966) Terminated on 26 April 2002

Yes

Yes

Yes

No

No

Yes (not specified)

No

Yes

Kuwait (26 April 2002)

Yes

Yes

Yes

Yes

No

6 months

Yes13

Yes

Latvia (3 June 1998)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Lebanon (2 June 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Libya (4 July 1991)

No

Yes

Inconclusive

Yes

No

Yes (not specified)

Yes

Yes

Macedonia (signed on 22 November 1999, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Malawi (7 September 1999)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Malaysia (3 February 2000)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Mali (7 July 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Malta (17 July 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mauritius (17 October 2014)

Yes

Yes

Yes

Yes

No

12 months

Yes

Yes

Mongolia (25 January 2005)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Morocco (old BIT) (7 September 1978) Terminated on 1 July 1998

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Morocco (1 July 1998)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Mozambique (signed on 8 December 1998, but not in force)14

Netherlands (old BIT – 1 January 1978) Terminated on 1 March 1998

Yes

Yes

Yes

Yes

No

Yes (reasonable time)

No

Yes

Netherlands (1 March 1998)

Yes

Yes

Yes

Yes

No

No

No

Yes

Niger (signed on 4 March 1998, but not in force)

Yes

Yes

Yes

No

No

No

No

No

Nigeria (signed on 20 June 2000, but not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

North Korea (12 January 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Oman (old BIT – 9 October 1985) Terminated on 3 March 2000

Yes

Yes

Yes

No

No

No

No

Yes

Oman (3 March 2000)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Palestine Liberation Organization (19 June 1999)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Pakistan (signed on 16 April 2000, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Poland (17 January 1998)

Yes

Yes

No

Yes

No

6 months

No

Yes

Portugal (23 December 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Qatar (old BIT – 20 August 1990) Terminated

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Qatar (14 July 2006)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Romania (old BIT – 10 May 1976) Terminated

No

Yes

No

Yes

Yes

No

Yes

Yes15

Romania (3 April 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Russian Federation (12 June 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Senegal (signed on 5 March 1998, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Serbia-Montenegro (old BIT – 20 March 1979) Terminated on 20 March 200616

Serbia–Montenegro (20 March 2006)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Seychelles (signed on 22 January 2002, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Singapore (20 March 2002)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Slovakia (1 January 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Slovenia (7 February 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Somalia (16 April 1983)

Yes

Yes

Yes

Yes

No

No

No

Yes

South Africa (signed on 28 October 1998, but not in force)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

South Korea (25 May 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Spain (26 April 1994)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Sri Lanka (10 March 1998)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Sudan (old BIT – 14 March 1978) Terminated

Yes

No

Yes

Yes

No

Yes (not specified)

No

Yes

Sudan (1 April 2003)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Swaziland (Eswatini) (signed on 18 July 2000, but not in force)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Sweden (29 January 1979)

Yes

Yes

No

Yes

No

No

No

Yes

Switzerland (old BIT – 4 June 1974) Terminated on 15 May 2012

Yes

Yes

No

Yes

No

Yes (not specified)

Yes

Yes

Switzerland (15 May 2012)

Yes

Yes

Yes

Yes

Yes

6 months17

Yes

Yes

Syria (5 October 1998)

Yes

Yes

No

No

No

No

Yes

Yes

Tanzania (signed on 30 April 1997, but not in force)18

Thailand (27 February 2002)

Yes

Yes

Yes (legal protection)

Yes

No

6 months

Yes

Yes

Tunisia (2 January 1991)

Yes

Yes

Yes

No

No

No

Yes

Yes

Turkey (31 July 2002)

Yes

Yes

No

Yes

Inconclusive

6 months

No

Yes

Turkmenistan (28 February 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

United Arab Emirates (old BIT – 2 March 1998) Terminated

No

Yes

No

No

No

No

No

Yes

United Arab Emirates (11 January 1999)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Uganda (signed on 4 November 1995, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United Kingdom and North Ireland (24 February 1976)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes19

Ukraine (10 October 1993)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

United States (27 June 1992)

No

Yes

Yes

Yes

No

6 months

Yes

Yes

Uzbekistan (08 February 1994)20

No

Yes

Yes

No

No

Yes (not specified)

Yes

Yes

Vietnam (4 March 2002)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Yemen (old BIT – 3 March 1990) Terminated

No

No

No

No

No

No

No

No

Yemen (10 April 1998)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Zambia (signed on 28 April 2000, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Zimbabwe (signed on 2 June 1999, but not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

The Agreement for The Encouragement and Protection of Investment Between The OPEC Fund for International Development and The Arab Republic of Egypt (6 July 2001)

Yes

Yes

Yes

Yes

Yes

Yes (Not Specified)

No

Yes

The Unified Agreement for The Investment of Arab Capital in The Arab States (7 September 1981; entered into force on 22 February 1988)21

No

Yes

Yes

Yes

No

No

Yes

Yes22

The Agreement On The Promotion, Protection And Guarantee Of Investments among Member States of The Organization of Islamic Cooperation23 (23 September 1986)

No

Yes

Yes

Yes

No

No

Yes

Yes24

The Agreement On Investment and Free Movement of Arab Capital Among Arab Countries (29 August 1970)25

Amended by Resolution 648 of 3 December 1973

No

Yes

No

Yes

No

No

No

No

Definition of ‘companies/enterprises’ as investors

The definition of ‘companies/enterprises as investors’ usually comprises different forms of legal entities (juridical persons). Depending on the wording of each BIT, the definition may refer to legal entities such as companies, corporations, public enterprises, foundations, firms, organisations and business associations as long as they are incorporated, constituted, established or duly organised in accordance with Egyptian laws. Sometimes having the entity’s headquarters or economic activities in Egypt is an additional requirement for the qualification of a protected investor.

The contracting state as investor

Some BITs entered into by Egypt include the government of one of the contracting states in the definition of the protected investor (eg, Italy, Kuwait, the Netherlands, Qatar, UAE and Zambia).

Requirement of ‘real economic activity’

In some cases, BITs require, in addition to the usual requirements for an investor to qualify, that the legal entity is pursuing ‘real’ or ‘actual’ economic activities in the territory of the host state (eg, Bosnia and Herzegovina, Chile, Croatia, Ethiopia, Georgia and Morocco).

Permanent resident

Some of the BITs signed by Egypt extend their protection to the investments made by a natural person who is a permanent resident in its territory (eg, Australia, Denmark, Jordan, Malaysia) others extend the protection only to juridical persons with permanent residency in Egypt (eg, the Czech Republic, Ghana, Latvia, Sri Lanka and Zambia). A third category encompasses both natural and juridical persons having permanent residence in Egypt (eg, Canada).

Eligible assets

The definition is usually broad and includes ‘every kind of assets’ or similar language. In addition, among oft-named examples of assets, we find movable and immovable property, other property rights (mortgage, liens and pledges), shares in and stock of companies, loans, intellectual and industrial property rights, claims to money or to any performance having financial values and business concessions.

Explicit exclusion

Explicit exclusions of a certain type of investment from the scope of protection are rather rare in the BITs entered into by Egypt. A good example would be the BIT with Zambia provides that investment does not include claims to money that arises solely from a commercial contract for the sale of goods or services between nationals of the two contracting states or from the extension of credit in connection with a commercial transaction.

Indirect investments

In some cases, BITs extend their protection to indirect contributions or investment (eg, Belgium–Luxembourg Economic Union, Central African Republic and Kuwait), or to assets owned or controlled indirectly (eg, the Netherlands).

Requirement for investment to be ‘in compliance with national law’

Many BITs entered into by Egypt limit the scope of their protection to otherwise qualifying investments to investments made in compliance of the contracting state’s legislation (eg, Algeria, Argentina, Australia, Belarus, Czech Republic, Ethiopia, Indonesia, Italy, Finland, France, Hungary, Oman, Romania, Syria, Turkey and UAE).

Retroactive effect

In some cases, BITs extend their protection to investments made prior to the date of their entry into force (eg, Belarus, Chile, France, Jordan, the Netherlands and Romania).

Specification of the standard of treatment

Though in most BITs entered into by Egypt, the FET standard is provided in general and concise terms (eg, Czech Republic, Indonesia, Finland and Ukraine), in some cases, BITs have added specific language (eg, the BITs entered into with France and Chile provide that the fair and equitable protection ensures that the investor is not hindered by any obstacles in the exercise of the recognised rights). Additionally, the BIT signed with Canada contains a reference to international law regarding the FET standard.26 Other BITs use a different wording such as the BIT entered into with Russia, which ensures the ‘just’ and equitable treatment instead of ‘fair’.

Other BITs refer to the standard of the FET in the preamble, such as the BIT entered into with the Netherlands and Turkey.

In some other cases, the BITs contain language that deals with the FET standard together with or in light of other standards such as full protection and security (eg, the BIT entered into with Comoros,27 the Czech Republic, Hungary, Morocco, Qatar and Ukraine) and MFN (eg, Spain).

Compensation at market value/moment of valuation

The protection against expropriation is guaranteed in almost all BITs entered into by Egypt.

Most BITs provide for the payment of an adequate compensation in the case of expropriation of the investment.

Depending on the exact wording of the BIT, compensation usually amounts to the real market or economic value of the expropriated investment (assets, rights or interests) immediately before expropriation was initiated, announced or became public knowledge (eg, using comparable or similar language, Belarus, Oman Greece, Indonesia, Czech Republic, Pakistan, Portugal, Qatar, Syria, Turkey and UAE).

Other BITs are a bit nuanced or more specific, for example, the date of the evaluation of the compensation in the BIT concluded with Morocco is determined to be the day before the expropriation was taken, while the BIT concluded with France provided for valuation on the same day the expropriation was committed. The BIT concluded with China provided that the compensation shall be ‘equivalent to the value of the expropriated investments at the time when expropriated is proclaimed’.

In some cases, the BITs provide for the payment of interests in addition to the compensation (eg, Comoros and Malta). Sometimes the BIT emphasises that interest shall be paid at a commercial rate (eg, Canada Jordan, the Netherlands and UAE) or in accordance with the rate announced by the Central Bank of the country concerned (eg, Qatar).

Indirect expropriation

Many of the BITs entered into by Egypt extend the guarantees against expropriation to indirect or creeping expropriatory measures or measures tantamount to expropriation or having a similar effect (eg, France, the Netherlands, United Arab Emirates, the United Kingdom, United States and Yemen).

Limitations/exceptions

Most BITs exclude certain agreements entered into by Egypt from the scope of the ‘most favoured nation’ (MFN) or ‘national’ clause such as the BIT entered into with Kuwait, Turkey and Jordan that, each depending on their exact wording, exclude agreements relating to any existing or future customs unions, regional economic organisation or similar international agreements as well as those to taxation, whether wholly or mainly. Other BITs assert the same exclusions and add to them, for example, in the BIT agreements entered into with Morocco regarding any governmental aids offered by the country to its own nationals in the context of national developments activities or programmes are excluded. The BIT concluded with Austria adds an exclusion relating to any regulation to facilitate the frontier traffic. In other BITs, the exclusion is either limited to agreements relating to customs unions, common markets and free trade zones without mentioning taxation agreements (eg, France) or completely omitted (eg, the United Kingdom).

As for the USA–Egypt BIT, the wording is slightly different providing for ‘limited exceptions for the standard of national treatment’ that each contracting state is entitled to apply regarding the matters specifically listed in an Annex to the BIT.

The scope

Some BITs combine the MFN clause with the national treatment obligation (eg, Chile, Georgia, Japan, United States). Depending on its exact wording, the comparator used in the BIT will fix the scope of the MFN/national treatment standard. Some BITs identify the investor as a comparator: comparator for the application of the MFN and ‘national treatment’ standards can be discerned: depending on each BIT’s exact wording, the treatment shall not be less favourable than that which is accorded to investments by its own investors (nationals or companies) or third state investors or than the treatment accorded to said investors themselves. Some BITs include in the scope of the protection both the investors and the investments (eg, Albania, Austria, Belarus, Central African, the Czech Republic, Japan and Romania). Other BITs guarantee the standard of treatment not only to the investment itself but also to its returns (eg, Georgia, Ukraine).

In some BITs, the scope of the MFN and national treatment standards is extended to ‘associated activities’ of the concerned investment or the activities involved in making the investment (eg, USA, Russian Federation, Germany and Turkey).

Extent of obligation/Language used

The scope of the obligation to provide protection and security to qualified investment will largely depend on the variations in the language used to describe the obligation in each BIT.

In some BITs, it is provided that the host state shall provide ‘full protection and security’ to qualifying investments (eg, Armenia, Canada, Central Africa, Denmark, Greece, United Kingdom, United Arab Emirates, Ukraine).

In other BITs, the term ‘full’ is omitted (eg, Australia, Ethiopia, Pakistan) or replaced with the term ‘adequate’ (eg, Sri Lanka, Zambia) or ‘constant protection and security’ (eg, Belgium–Luxembourg Economic Union, China). Sometimes the terms used are more specific, such as in the BIT concluded with Belarus, which provides for full ‘legal’ protection and security. Other times the standard is explicitly limited to the physical protection and security of the investment (eg, the Netherlands). In other instances, only 'full protection' is guaranteed (eg, Italy).

Limitation

Other than the limitations dictated by the scope as above-mentioned, in a limited number of BITs, the obligation to provide protection and security is subject to the host state’s national laws (eg, Australia).

Existence

Many BITs signed by the Arab Republic of Egypt contain a provision that may be interpreted as an umbrella clause (eg, Armenia, Finland, Germany, Morocco, Switzerland and South Africa).

Scope/Language used

Subject to the interpretation of a competent tribunal, the language used in potential umbrella clauses is usually not limited to contracts or contractual obligations; but also, obligates the state to observe ‘obligations entered into’ (eg, Armenia, Austria, Greece, South Africa and Turkmenistan), assumed’ (eg, Germany, Romania, Switzerland), with respect to 'claims for money, or to any performance having economic value associated with an investment' (eg, Italy), or relating to 'rights to engage in economic and commercial activities authorised by law or by virtue of a contract' (eg, Spain). The term ‘commitments’ is sometimes used to replace obligations (eg, Singapore).

Armed conflict/revolution/state of emergency

Depending on each BIT’s exact wording, most BITs signed by Egypt provide for indemnification or compensation for any measures by the contracting state owing to war, armed conflict, revolution, a state of national emergency, revolt, riot, insurrection civil disturbance or other similar events (eg, using similar or identical language Belgium–Luxembourg Economic Union, Jordan, Sri Lanka, UAE and Zambia). Some BITs do not include such a protection (eg, France).

Effective means of asserting claims

Primarily present in Egypt's BIT with the US, it provides for 'effective means of asserting claims and enforcing rights with respect to investment agreements, investments authorizations and properties', in conjuction with an MFN clause. 

In many Egyptian BITs, a clear carve-out is included “with respect to the protection of [a Contracting Party’s] essential security interests” (eg, Switzerland, US, Iceland, Finland, Singapore, India and Germany).

In some Egyptian BITs, a general carve-out is included 'without relaxing health, safety, environmental standards of general application, and prevention and combating of transnational organized crimes' (eg, Mauritius, Finland, Singapore, Canada and Germany).

In some Egyptian BITs, a carve-out concerning financial measures is included whereby: '[a] Contracting Party shall not be prevented from taking prudential measures with respect to financial services, including measures for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by an enterprise providing financial services. or to ensure the integrity and stability of its financial system' (eg, Jamaica, Canada).

Whether investors are given a choice among multiple arbitration options

The great majority of Egyptian BITs provide for ICSID arbitration. Among these, some provide exclusively for ICSID arbitration (eg, France, Japan, Singapore, Sweden and the United Kingdom), while others give the investor a choice between ICSID arbitration and other arbitration venues (eg, Austria, Belarus, Ethiopia, Oman, the Netherlands, Spain, Canada, Turkey, Denmark and Italy).

The arbitration options, in most cases, include ad hoc arbitration under the UNCITRAL rules or ICC or CRCICA arbitration.

Exhaustion of local remedies

Few BITs provide for a requirement of exhaustion of the local remedies as a condition for initiating arbitration proceedings (eg, Finland (old BIT), Pakistan and Sweden).

Existence of the fork-in-the-road clause

The majority of BITs do not include a fork-in-the-road (FIR) clause (eg, Australia, Germany, Italy, Japan, Kuwait, Portugal, Sweden, United Kingdom, the Netherlands and the Russian Federation).

Some BITs contain a FIR clause (eg, Argentina, Canada, China, the United States of America, Qatar and Turkey).

By virtue of article 6 of ESLA Law No. 75 of the year 1963 (Concerning the Organization of the State Lawsuits Authority (ESLA)), a notice of dispute should be addressed to ESLA. Within the ESLA, a specialist department, the department of foreign disputes, manages investment disputes and international arbitrations on behalf of Egypt.

ESLA’s address is at:

42 Gameat El Dowal El Arabiya St
Mohandeseen
Cairo
Egypt

Tel: +20 2 37617046 Fax: +20 2 37621417

P.O. Box: 12311

In practice, foreign investors also copy the notice of dispute the Egyptian Ambassador in the country of the foreign investor.

Pursuant to article 6 of Law No. 75 of the year 1963 (Concerning the Organization of the State Lawsuits Authority), ESLA represents the Arab Republic of Egypt in all disputes before any and all judicial bodies, including in international and investment arbitration proceedings. Within the ESLA, a specialist department, the department of foreign disputes, manages investment disputes and international arbitrations on behalf of Egypt.

Additionally, the Prime Minister issued Decree No. 1062 of 2019 to establish a ministerial committee to study existing investor-state arbitration cases and advise the government on how to best defend or settle such disputes. The committee was initially titled the Higher Commission for Studying and Opining on International Arbitration Cases that was later renamed by virtue of Decree No. 2592 of 2020 to be the Commission to the Higher Commission for Arbitration and International Disputes, which expanded its role from just studying and expressing an opinion on arbitration cases to carrying out a review of all state contracts and arbitration agreements before execution. The decree also states that the commission is responsible for appointing international consulting firms, arbitrators and law firms that will represent Egypt along side ESLA in arbitration disputes. 

Usual practice shows that Egypt often hires either a local or a foreign counsel alongside ESLA when representing the Arab Republic of Egypt in investment treaty arbitrations.

Often, external counsel is instructed for specific cases. The appointment of external counsel, it is understood, goes through an internal selection process.

The Arab Republic of Egypt signed the ICSID Convention on 11 February 1972 (following accession by Presidential Decree Law No. 90 of the year 1971), and the Convention entered into force in Egypt on 2 June 1972 (by virtue of the Minister of Foreign Affairs Decree No. 41 of 1972 of 1 July 1972).

The Arab Republic of Egypt ratified the New York Convention on 9 March 1959. The Convention entered into force in Egypt on 8 June 1959 by virtue of the Presidential Decree No. 171 of  1959 and the Decree of the Minister of Foreign Affairs No. 19 of 1959.

NB: Egypt was one of the very early signatories to the New York Convention.

There is no legislation explicitly implementing the New York Convention. However, the Egyptian Arbitration Law (EAL) No. 27 of 1994 provides for the explicit primacy of international conventions, while the law’s explanatory note refers to the New York Convention. Furthermore, the Court of Cassation affirmed that the provisions of the New York Convention entered into by Egypt have automatically become an intrinsic part of the state’s domestic laws, even if the said provisions prove to be in contradiction with the provisions of the EAL (see appeal No. 10350 for the Judicial Year No. 65).

A non-ICSID investment arbitration seated in Egypt would be subject to the EAL (Arbitration Law No. 27 of the year 1994), in accordance with the territorial scope of the latter (article 1 of the EAL). Consequently, absent a provision in the applicable treaty explicitly dictating rules relating to enforcement, any potential annulment proceedings of the award rendered in Egypt would also be regulated by the EAL.

Considering the pool of ICSID cases that concluded with an award on the merits that was adverse to the Arab Republic of Egypt, the Arab Republic of Egypt has settled some of these cases post-award (ie, consented to pay part of the money award voluntarily). In some cases, settlement and correlative suspension (and ultimately termination) of the proceedings occurred in course of the arbitration. In other cases, the investor has had to seek enforcement in courts.

The ‘Arab Spring’ or more specifically the Egyptian Revolution of 2011, opened a floodgate of cases against the Egyptian government that was still in a fragile state. This predicament could have easily tempted Egyptian policymakers to follow the example of other states (such as Bolivia, Ecuador and Venezuela) by deciding to withdraw from its international commitments (ie, the ICSID Convention or the BITs entered into by Egypt). However, that was not the case. Egypt has been and continues to be praised for its stance in that particular moment in time even if, arguably, the outcome was detrimental to its economy as the claims put forth amounted to billions of dollars. Egypt managed to create a reputation within the international community that it is a state that does not disengage from its obligations when the latter prove to be against its best interests.

To mitigate the financial burden of international arbitration, Egypt exerted noticeable efforts to accommodate the investors’ claims while avoiding costly and time-consuming proceedings. Indeed, Egypt successfully concluded 14 settlements in the period between 1992–2020. Interestingly, 11 of the settlements were concluded during the period between 2014 and 2020, this concentration of successful settlement is largely due to the establishment of the Committee for the Settlement of Investment Contracts Disputes, created as an alternative to litigation or arbitration proceedings, or both.29

In 2010, Egypt signed a new BIT with Switzerland, replacing the old one (signed on 25 July 1973). The new BIT provides for modern investor–state dispute settlement through arbitration, which was not there in the old BIT. In 2012, Egypt signed another BIT with Burundi, which was followed by a BIT signed with Mauritius in 2014.

Although, in the aftermath of the Revolution, Egyptian courts (in particular, the administrative courts) have, in some cases, stated (though not necessarily in dispositive parts of their decisions), and in a pre-emptive fashion, that the investor (against whom the decision was rendered) would have no recourse or right to start ICSID or international arbitration, for example, because the transaction is purportedly tainted with corruption, this is not the rule but only an exception confirming the rule. The vast majority of local courts support and are respectful of investment treaty arbitration, especially in the recent years. An administrative court decision issued on 6 July 2008, refused to re-examine a dispute that was settled by an ICSID award and affirmed the res judicata effect of such award, despite the fact that the award was issued in favour of the investor and ordered the Egyptian government to pay compensation to a Greek investor (see judgment No. 12663 of the Judicial Year 59).

In terms of enforcement, non-ICSID investment awards are subject to the New York Convention entered into force in Egypt in 8 June 1959. In that regard, on 1 March 1999, the Egyptian Court of Cassation explicitly supported and underlined the eminence of the New York Convention within the Egyptian legal system. The Court of Cassation affirmed that, according to article 301 of Law 13 of 1968 promulgating the Egyptian Code for Civil and Commercial Procedures, the provisions of the New York Convention entered into by Egypt have automatically become an intrinsic part of the state’s domestic laws, even if the provisions prove to be in contradiction with the provisions of the EAL. Consequently, the Court of Cassation confirmed a lower court’s refusal to apply article 43 of the EAL when ruling on the recognition of a foreign arbitral award based on the fact that the provision or a similar provision to that same effect are not included in the New York Convention (see appeal No. 10350 for the Judicial Year No. 65). Moreover, on 10 January 2005, the Egyptian Court of Cassation reiterated the decision and deemed the Convention to be applicable even if its provisions are in contradiction with the CCCP or any other Egyptian laws, in deciding on the enforcement of a foreign arbitral award (see appeal No. 966 for the Judicial Year 73). It can hence be concluded that the enforcement of the awards is shielded from the application of more stringent Egyptian national laws, whenever the provisions of the EAL are less stringent and benefit from the enforcement proceedings of the New York Convention, which are highly respected in Egyptian case law.

Yes

Yes

National Treatment

No

No

Extensive BIT network

Egypt has signed more than 100 BITs (which, when ratified, also form part of Egyptian law). They provide the main framework of protection for Egyptian investors investing abroad.

Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt (ICSID Case No. ARB/84/3), Award of 20 May 1992 (state consent was based on national law).

Wena Hotels Limited v Arab Republic of Egypt (ICSID Case No. ARB/98/4), Award of 8 December 2000.

Middle East Cement Shipping and Handling Co SA v Arab Republic of Egypt (ICSID Case No. ARB/99/6), Award of 12 April 2002.

Joy Mining Machinery Limited v Arab Republic of Egypt (ICSID Case No. ARB/03/11), Award of 6 August 2004.

Champion Trading Company and Ameritrade International, Inc v Arab Republic of Egypt (ICSID Case No. ARB/02/9), Award of 27 October 2006. 

Ahmonseto, Inc and others v Arab Republic of Egypt (ICSID Case No. ARB/02/15), Award of 18 June 2007.

Helnan International Hotels A/S v Arab Republic of Egypt (ICSID Case No. ARB/05/19), Award of 3 July 2008.

Jan de Nul NV and Dredging International NV v Arab Republic of Egypt (ICSID Case No. ARB/04/13), Award of 6 November 2008.

Waguih Elie George Siag and Clorinda Vecchi v Arab Republic of Egypt (ICSID Case No. ARB/05/15), Award of 10 July 2009.

Malicorp Limited v Arab Republic of Egypt (ICSID Case No. ARB/08/18), Award of 7 February 2011.

National Gas SAE v Arab Republic of Egypt (ICSID Case No. ARB/11/7), Award of 3 April 2014.

H&H Enterprises Investments, Inc v Arab Republic of Egypt (ICSID Case No. ARB/09/15), Award of 6 May 2014.

Veolia Propreté v Arab Republic of Egypt (ICSID Case No. ARB/12/15), Award of 25 May 2018.

Unión Fenosa Gas, SA v Arab Republic of Egypt (ICSID Case No. ARB/14/4), Award of 31 August 2018.

Almasryia for Operating & Maintaining Touristic Construction Co. L.L.C. v State of Kuwait (ICSID Case No. ARB/18/2), Award of 1 November 2019 (Egyptian investor involving Egypt's BIT).

Champion Holding Company & Others v Arab Republic of Egypt (Case No. ARB/16/2), Award of 28 February 2020.

Global Telecom Holding S.A.E. v Canada (ICSID Case No. ARB/16/16), Award of 27 March 2020 (Egyptian investor involving Egypt's BIT).

Cementos La Union SA and Aridos Jativa S.L.U v Arab Republic of Egypt (ICSID Case No. ARB/13/29), Award of 30 October 2020. 

Robert Rogers, Ronald Rogers and Dream House v Arab Republic of Egypt (PCA Case No. 2019-27), Award of 16 March 2021.

MetroJet (Kogalymavia) Limited v Arab Republic of Egypt, (PCA Case No. 2018-43), Award on jurisdiction and admissibility, dated 18 March 2021.

Prens Turizm Kuyumculuk Tasimacilik ve Dis Ticaret Limited v Arab Republic of Egypt, PCA Case No. 2018-44, Award on jurisdiction and admissibility, dated 18 March 2021.

Al Jazeera Media Network v Arab Republic of Egypt (ICSID Case No. ARB/16/1), registered 20 January 2016.

Future Pipe International BV v Arab Republic of Egypt (ICSID Case No. ARB/17/31), registered 24 August 2017.

Tantalum International Ltd and Emerge Gaming Ltd v Arab Republic of Egypt (ICSID Case No. ARB/18/22), registered 28 June 2018.

International Holding Project Group and others v Arab Republic of Egypt (ICSID Case No. ARB/18/31), registered 19 September 2018.

Yosef Maiman, Merhav (MNF), Merhav-Ampal Group, Merhav-Ampal Energy Holdings v Arab Republic of Egypt (PCA Case No. 2012/26).

Nile Douma Holding v Arab Republic of Egypt, UNCITRAL.

Mohamed Abdel Raouf Bahgat v Arab Republic of Egypt (PCA Case No. 2012-07).

Prens Turizm Kuyumculuk Tasimacilik ve Dis Ticaret Limited v Arab Republic of Egypt (PCA) 2017.

MetroJet (Kogalymavia) Limited v Arab Republic of Egypt (PCA Case No. 2018-44), 2017.

Hashem Al Mehdar v Arab Republic of Egypt, Ad Hoc proceedings, 2018.

Ayat Nizar Raja Sumrain and others v State of Kuwait (ICSID Case No. ARB/19/20), registered on 30 June 2019 (Egyptian investor involving Egypt's BIT).

CTIP Oil & Gas International Limited v Arab Republic of Egypt (ICSID Case No. ARB/19/27), registered 17 September 2019.

Gesenu S.p.A. v Arab Republic of Egypt (ICSID Case No. ARB/20/45), registered 30 October 2020.

Cementos La Union SA and Aridos Jativa S.L.U v Arab Republic of Egypt (ICSID Case No. ARB/13/29), Annulment registered on 5 March 2021.

Qalaa Holdings and ASEC Cement v. People's Democratic Republic of Algeria, Ad Hoc proceedings, administering institution -PCA, registered on 2021.

HeidelbergCement AG and others v Arab Republic of Egypt (ICSID Case No. ARB/21/50), registered on 18 October 2021.

Mohamed Abdel Raouf Bahgat v Arab Republic of Egypt (II), Ad Hoc proceedings, introduced on 13 August 2021.

Manufacturers Hanover Trust Company v Arab Republic of Egypt and General Authority for Investment and Free Zones (ICSID Case No. ARB/89/1), discontinued 24 June 1993.

Hussain Sajwani, Damac Park Avenue for Real Estate Development SAE, and Damac Gamsha Bay for Development SAE v Arab Republic of Egypt (ICSID Case No. ARB/11/16), discontinued 10 September 2014.

OTH v. Algeria-Orascom Telecom Holding S.A.E v People’s Democratic Republic of Algeria (PCA Case No. 2012-20) (Egyptian investor involving Egypt's BIT), Award on agreed terms of settlement of 12 March 2015.

Ossama Al Sharif v Arab Republic of Egypt (ICSID Case No. ARB/13/4), discontinued 27 May 2015.

Ossama Al Sharif v Arab Republic of Egypt (ICSID Case No. ARB/13/3), discontinued 2 June 2015.

Ossama Al Sharif v Arab Republic of Egypt (ICSID Case No. ARB/13/5), discontinued 3 June 2015.

Indorama International Finance Limited v Arab Republic of Egypt (ICSID Case No. ARB/11/32), discontinued 2 July 2015.

ASA International SPA v Arab Republic of Egypt (ICSID Case No. ARB/13/23), discontinued 3 August 2016.

Bawabet Al Kuwait Holding Company v Arab Republic of Egypt (ICSID Case No. ARB/11/06), discontinued on 11 November 2016.

ArcelorMittal SA v Arab Republic of Egypt (ICSID Case No. ARB/15/47), discontinued on 5 December 2016.

Utsch M.O.V.E.R.S. International GmbH, Erich Utsch Aktiengesellschaft, and Mr.Helmut Jungbluth v Arab Republic of Egypt (ICSID Case No. ARB/13/37), discontinued on 18 April 2017.

LP Egypt Holdings I, LLC, Fund III Egypt, LLC and OMLP Egypt Holdings I, LLC v Arab Republic of Egypt (ICSID Case No. ARB/16/37), discontinued on 11 July 2018.

Ampal-American Israel Corporation and Others v Arab Republic of Egypt (ICSID Case No. ARB/12/11), discontinued on 28 May 2020.

Petroceltic Holdings Limited and Petroceltic Resources Limited v Egypt (ICSID Case No. ARB/19/7), discontinued 15 September 2020.

Qatar Airways Group Q.C.S.C. v Arab Republic of Egypt, 2020.

Ayat Nizar Raja Sumrain and others . State of Kuwait (ICSID Case No. ARB/19/20), discontinued 11 February 2022.

Vicat S.A. v Arab Republic of Egypt (ICSID Case No. ARB/21/35), discontinued 14 April 2022.

KGL International for Ports, Warehousing, and Transport K.S.C.C. v. Arab Republic of Egypt (ICSID Case No. ARB/21/21), discontinued 28 April 2022.

Business Climate Review of Egypt Investment Policies and Public-Private Partnerships, The Organisation for Economic Co-Operation and Development, 2014.

Mohamed S. Abdel Wahab, 'Investment Arbitration: The Chronicles of Egypt: A Perilous Path to Pass', in Michael O’Reilly (ed), Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (© Chartered Institute of Arbitrators (CIArb); Sweet & Maxwell 2017, Volume 83 Issue 1) pp. 52-70.

Antonio R. Parra, 'The Experience of Egypt at the International Centre for Settlement of Investment Disputes', in Nassib Ziadé (ed), Festschrift Ahmed Sadek El-Kosheri (© Kluwer Law International; Kluwer Law International 2015) pp. 337-344.

Ashraf M. A. Elfakharani, Rohana Abdul Rahman, Bilateral Investment Treaties and the Increase in Egyptian Appearances before International Arbitration Tribunals (published at https://www.euppublishing.com/doi/10.3366/ajicl.2021.0349)

Karim Abou Youssef, 'The Quest for Cosmopolitan Law and Arbitration in the Arab World – Where Do We Stand Now?', in Nassib Ziadé (ed), Festschrift Ahmed Sadek El-Kosheri, (© Kluwer Law International; Kluwer Law International 2015) pp. 193 - 210.

2021 Investment Climate Statements: Egypt, US Department of State.

The United States-Egypt Bilateral Investment Treaty: A Prototype for Future Negotiation, 16 Cornell Int'l L.J. 305 (1983).

(https://heinonline.org/HOL/LandingPage?handle=hein.journals/cintl16&div=17&id=&page=)

Robert T. Greig, Claudia Annacker, et al., 'How Bilateral Investment Treaties Can Protect Foreign Investors in the Arab World or Arab Investors Abroad', Journal of International Arbitration (© Kluwer Law International; Kluwer Law International 2008, Volume 25 Issue 2) pp. 257-273.

Federico Bonaglia and Andrea Goldstein, Egypt and The Investment Development Path Insights from Two Case Studies, International Journal of Emerging Markets, Vol. 1 No. 2, 2006 pp. 107-127, OECD Development Centre, Paris, France.

Reem Anwar Ahmed Raslan, International Investment Agreements and National Governance: The Case of Egypt, Arab Law Quarterly, 16 March 2020.

https://brill.com/view/journals/alq/aop/article-10.1163-15730255-BJA10005/article-10.1163-15730255-BJA10005.xml

Sabah Ahmd Farag, “International Arbitration in Investment Disputes” Case Study of Egypt, Review of Economics and Political Science, Emerald Publishing Limited, 29 September 2019.

Mohammed Mossallam, Egypt’s Foreign Direct Investment Regime Evolution and Limitations in Routledge Handbook on Contemporary Egypt, 1st edition, Published in 2021.

https://www.taylorfrancis.com/chapters/edit/10.4324/9780429058370-20/egypt-foreign-direct-investment-regime-mohammed-mossallam

Karim A. Youssef, The Impact of the Arab Spring on International Commercial and Treaty Arbitration in Egypt and the MENA Region, (2017) 83 Arbitration, Issue 1, 2017 Chartered Institute of Arbitrators.

Hanafy, Shima'a (2015): Patterns of Foreign Direct Investment in Egypt: Descriptive Insights from A Novel Panel Dataset at the Governorate Level, MAGKS Joint Discussion Paper Series in Economics, No. 12-2015, Philipps-University Marburg, Faculty of Business Administration and Economics, Marburg.

Hamed El-Kady, Egypt's Bilateral Investment Treaties: A Straitjacket in a New Era of Foreign Investment Re-regulations?, Article from: TDM 3 (2012), in Investor-State Disputes - International Investment Law