Litigation

Last verified on Friday 14th May 2021

Litigation: Egypt

Karim A Youssef, César R Ternieden and Kamel ElShandidy

Youssef & Partners

Overview

1. Describe the general organisation of the court system for civil litigation.

Egypt

The Egyptian judiciary consists of national courts at various degrees and jurisdictions. According to successive Egyptian Constitutions, including the most recent one of 2014, the judiciary is an independent authority from the two other branches of power (the executive and the legislative branches).

According to the Egyptian Code of Civil and Commercial Procedure (CCCP), the Egyptian court system for civil litigation consists of three tiers of courts:

  • Courts of Primary Jurisdiction: This degree of courts represents the first tier of litigation in Egypt. It consists of two types: district courts, which rule on cases of value of less than EGP100,000; and the courts of first instance, which rule on cases of higher value amounts.
  • Courts of Appeal: This degree of courts represents the second tier of litigation as the appellate level in Egypt. It rules on judgments rendered by district courts and courts of first instance; this process usually involves a complete re-examination of both facts and for law.
  • The Court of Cassation: This court embodies the top of the court pyramidal hierarchy. It rules on any judgment rendered by the Court of Appeal regarding cases of amounts higher than EGP250,000. This process usually involves an examination of law only.

 

Economic courts are a new type of courts recently introduced in Egypt in 2008, within the ordinary court system. Under this system, ordinary courts must refer to the competent economic court commercial and financial disputes relating to the jurisdictional scope to address matters related to laws listed in the Economic Court Law (ECL) No. 120 of 2008, as amended in 2019. Those laws include, for instance, the laws of capital markets, investment, intellectual property, financial leases, transfer of technology, unfair competition, commercial agency, insolvency and banking laws. Although economic courts are part of the ordinary court system, they are divided into chambers of first instance and chambers of appeal.

The Egyptian civil law system does not consider the decisions and principles of the Court of Cassation to have stare decisis effect. However, those decisions and principles have a significant persuasive effect, and lower courts in the litigation hierarchy often take into consideration those decisions and principles when ruling on relevant matters.

In principle, judges are independent from the state, and they are selected by the judiciary. However, as an administrative formality, they are usually appointed by the president through a presidential act and their location of appointment and aspects of their financial remuneration are determined by the executive.

In the same vein, Egypt is a unitary state, so there are no federal courts in Egypt. The French-influenced Egyptian judiciary operates exclusively through state courts. Furthermore, the Egyptian jurisdiction does not use the jury system.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

Egypt

The CCCP, Law No. 13 of 1968 regulates the Egyptian judicial system by setting the principles to be followed by Egyptian courts to ensure proper administration of justice. The aforementioned law is primarily a procedural law and establishes the basic principles that govern civil litigation as well as commercial and criminal litigation. These principles are the following:

The independence of the judicial system: according to the Egyptian constitution judges are independent and only governed by the law and no other authority can intervene in the judicial system or justice affairs: judges must be independent, impartial and protect the legal interests of each litigant. judges (i) must not have an interest when adjudicating a lawsuit, (ii) must not have seen the lawsuit before, and (iii) must not violate the parties’ right to defend themselves.

The judicial system is free of charge: judges do not get paid from parties of disputes, they perform their work in return for a salary obtained from the state’s treasury. However, litigants pay fees for their recourse to the courts. The fees are first paid by the plaintiff but judges can then order the parties to share the cost or order the losing party to bear the totality of the fees.

The judicial system is a two degrees system: lawsuits are filed before first instance courts and in the event that a party is unsatisfied by the decision of a court of first degree the said party is entitled to appeal the concerned decision before a higher court.

The plurality of judges:  in civil litigation, to ensure the proper administration of justice first instance courts, appeal courts and courts of cassation are composed of several judges.

Hearings are public: every person has the right to attend court hearings and court decisions must be rendered in a public hearing. Based on that principle, it is allowed to publish what goes inside hearings as well as court decisions.

Judicial overview of the conduct of the parties: judges may at their own discretion intervene in litigation proceedings to rectify lawsuits or to take evidenciary action.

Notification to the other party: the obligation to notify a litigant of the actions taken by the other litigant so that he or she can defend his or her interests.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

3. Describe the general organisation of the legal profession.

Egypt

Egyptian lawyers are required to obtain a licence to practise the legal profession from the Egyptian Bar Association to be admitted before Egyptian courts. To obtain this licence, there are specific requirements that have to be fulfilled, such as holding a law degree from an Egyptian university or any recognised universities and being of Egyptian nationality alongside other procedural requirements.

There is a level of experience required for lawyers to appear before each of the three court tiers. For instance, lawyers must spend at least 17 years practising the legal profession, starting from the registry at the Egyptian Bar Association, to obtain a right of audience before the Court of Cassation. Foreign lawyers cannot be admitted before Egyptian courts without obtaining a licence from the Egyptian Bar Association.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

4. Give a brief overview of the political and social background as it relates to civil litigation.

Egypt

According to article 97 of the Egyptian Constitution, access to justice is a fundamental principle of the Egyptian legal system. The right to litigate is safeguarded and guaranteed to all.

The principal issue in litigation in Egypt is the prolonged duration of proceedings, as the Egyptian judiciary is extremely litigious. There is a huge amount of cases before Egyptian courts, which is mainly caused by the heavy backlog of cases. This creates a delay in adjudication of the cases and negatively affects the efficiency and effectiveness of the judiciary in Egypt. One of the state’s endeavours to reform and accelerate the litigation process was the establishment of economic courts in 2008, which have reduced the time in which courts review cases.

In addition to the aforementioned, the digitisation of certain aspects of litigation before Egyptian courts has been one of most the promising reform projects in the Egyptian judicial system. In fact, Law No. 146 of 2019, amending the ECL, included a clear mechanism for the digitisation of litigation procedures before economic courts; however, this mechanism has not been fully implemented yet. This reflects the state’s efforts aiming at developing the litigation process, to reduce the burdensome and the prolonged procedures for litigants. This project proved to be of crucial importance for this challenging time in Egypt, particularly, following the suspension of court proceedings amid the coronavirus outbreak.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Jurisdiction

5. What are the sources of law and rules governing international jurisdiction in civil matters?

Egypt

The sources of law and rules governing international jurisdiction in civil matters are found in the CCCP, Law No. 13 of 1968.

Articles 28 to 35 of the CCCP establish the limits of the jurisdiction of Egyptian courts.

Egyptian courts have jurisdiction over cases instigated against Egyptian nationals or foreigners having their residence or domicile in Egypt, unless the subject matter of the case is an immovable item located outside Egypt (articles 28 and 29 of the CCCP).

Moreover, article 30 of the CCCP extends the jurisdiction of Egyptian courts over cases instigated against foreigners even if they do not reside or have a domicile in Egypt if:

  • The foreigner has a chosen domicile in the Arab Republic of Egypt;
  • The case is related to moneys located in Egypt, to an obligation that arose or was performed or should have been performed in Egypt or if the case is related to a banckruptcy filed  in Egypt;
  • Any of the defendents in the case has a residence or domicile in Egypt.

As well as various other listed cases related to family law matters.

Egyptian courts also have exclusive juridiction over matters of inheritance when this inheritance is in Egypt or when the deceased was an Egyptian national (article 31 of the CCCP) and over interim measures to be executed in Egypt (article 34 of the CCCP).

Finally, Egyptian courts shall be competent to examine cases when the parties agree explicitly or implicitly to submit their case to Egyptian courts even if these courts were not initially competent to examine the case in question.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

Egypt

In accordance with the CCCP, the determination of the competent court for any matter is based on three criteria:

      • the nature of the dispute;
      • the territorial jurisdiction of the court; and
      • the value of the dispute.

In respect of the nature of the dispute, civil cases must be filed before Egyptian civil courts. As per the territorial competence, courts are divided between the cities in Egypt. In some cases, there might be a number of courts within the same city, so then they are divided on districts. Usually, a competent court is determined based on the domicile of the defendant.

With respect to the value of the dispute, Egyptian courts are divided into:

  • district courts: which rule on cases of value amounts not more than EGP 100,000, according to the latest amendments of the law in 2020; and
  • courts of first instance: which rule on cases of value amounts of more than EGP100,000. 

In this respect, the parties to a dispute can only agree on a specific forum regarding the territorial jurisdiction if there are multiple possible venues according to the CCCP.

If a party to a dispute is foreign, there are no specific considerations. Egyptian courts generally have jurisdiction to hear cases filed against a foreign person residing in Egypt except for foreigners that have been expressly granted immunity by a legislative provision or instrument. 

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

Egypt

The Egyptian jurisdiction does not commonly attract disputes that have a nexus with other jurisdictions, due to its slow process and prolonged proceedings. In certain respects, it is usually common for parties to seek interim reliefs and initiate actions in Egypt in support of actions conducted abroad, and in arbitral proceedings.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

8. How will a court treat a request to hear a dispute that is already pending before another forum?

Egypt

The CCCP is silent on this regard. As such, courts have discretionary power to act, based on the request of the parties, but not on their own initiative. Pursuant to article 112 of the CCCP, the court shall treat this request in accordance with the parties’ requests, and the circumstances of each case, the court shall take one of the following actions:

  • look into the case and resume the proceedings;
  • maintain the proceedings and refer the case to the other court; and
  • consolidate the case and resume the proceedings before the same court.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

Egypt

Pursuant to article 13 of the Egyptian Arbitration Act No. 27 of 1994, as amended (EAA), if the court proceedings were initiated concerning a matter that is subject to an arbitration agreement, the court shall declare itself incompetent and dismiss the case, provided the respondent raises this objection on jurisdiction before the parties’ engagement in the merits phase of the dispute 

On the other hand, as provided in article 14 of the EAA, the competent Egyptian court can order interim or conservatory measures upon the request of either party, whether before commencement or during the arbitral proceedings.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

10. May courts in your country review arbitral awards on jurisdiction?

Egypt

In accordance with the EAA, the arbitration awards (including an award on jurisdiction) may be reviewed only through annulment proceedings, which must be initiated on the limited grounds provided exclusively in article 53 of the EAA. The court may never review the arbitral awards as a matter of law or fact or assess its content.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

11. Are anti-suit injunctions available?

Egypt

Egyptian law does not recognise the concept of anti-suit injunctions. In practice, Egyptian courts do not normally issue anti-suit injunctions in support of an arbitration agreement, to prevent a party from commencing or resuming proceedings in a different jurisdiction or forum.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

Egypt

There is no specific legislation regarding sovereign immunity. On the contrary, article 97 of the Egyptian Constitution provides that It is prohibited to immunize any administrative act or decision from judicial review.”

In general, any party has the right to initiate legal proceedings and to enforce any judgment rendered by a competent Egyptian court or arbitration panel against Egyptian state entities, as Egyptian state entities do not enjoy sovereign immunity from civil proceedings per se.

On the other hand, the state has limited judicial immunity in relation to sovereign acts, which are not subject to judicial review but legislative review. This principle was set forth by the Egyptian judiciary. 

In principle, Egyptian governmental assets are divided between public assets and private assets. As for the public assets, which are allotted for the public interest, they are immune from seizure orders. However, the private assets, which are not allocated for the public interest, they are subject to seizure orders. In legal practice, Egyptian courts generally do not tend to take enforcement procedures against governmental assets.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Procedure

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

Egypt

In view of the CCCP, the plaintiff can initiate legal proceedings before the competent court, by registering the memorandum with a statement of claims with the court’s clerk (article 63). A copy of the memorandum must be delivered to the defendant by the court bailiff, after which the defendant must submit a memorandum with a statement of defence, at least three days prior to the first hearing (article 65). In practice, the defendant usually submits it during the hearing.

The court shall lead the proceedings and take the necessary actions in accordance with the CCCP and the established system of Egyptian courts, to ensure the proper functioning of the proceedings and representation of the parties.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

14. What are the requirements for filing a claim? What is the pleading standard?

Egypt

Pursuant to article 63 of the CCCP, the plaintiff shall 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 and the same information of its legal representative;
  • the defendant’s name, profession, domicile and its representative’s information;
  • the date of the submission of the claim;
  • the name of the court where the claim is filed and its address;
  • the case’s factual assertions, claims, evidence, and proofs, as well as a detailed relief sought;
  • the plaintiff’s chosen domicile in the city in which the said court resides, in case its domicile is in a different city; and
  • the documents attached to the claim.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

15. What are the requirements for answering claims? What is the pleading standard?

Egypt

As per article 65 of the CCCP, the defendant must submit its memorandum of defence, along with the supporting documents and evidence to the court, before which the case was filed, at least three days prior to the first hearing. In practice, the defendant usually submits its memorandum of defence during the said hearing.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

16. What are the rules regarding further briefs and submissions?

Egypt

In light of the CCCP and the legal practice in Egypt, the parties specify their requests for relief in the memorandum of claim by the plaintiff, and the memorandum of defence by the defendant. In practice, the parties have the right to amend their memoranda and submit new evidence, requests, and briefs throughout the proceedings, in accordance with the procedural timetable and the decisions of the court.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

17. To what degree are civil proceedings made public?

Egypt

According to article 101 of the CCCP, the court proceedings are public and the parties to the case shall not be anonymised in judgments. In principle, civil hearings are open to the public, except when the court decides otherwise willingly or upon one of the parties’ request, to make the proceedings private for the purpose of family privacy or public order.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Pretrial settlement and ADR

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

Egypt

A court may render interim assessments about factual or legal issues in the dispute by issuing interim and interlocutory decisions, but that are not binding on the final merits of the case.

In general, parties can conclude settlement at any time of the proceedings, either regarding the whole dispute or partially. In such a case, parties may request an endorsement from the court. On the other hand, there are no mandatory settlement conferences between parties during the litigation proceedings, as they are not part thereof. However, ADR can be upon a prior agreement between the parties, which can be enforced according to their agreement.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

Egypt

As mentioned in question 16, the parties may include any mean of ADR in their agreement as a prerequisite, before initiating any legal action before courts. 

Notwithstanding the above, the newly established Economic Courts apply a new form of ADR, which takes place before the commencement of the court proceedings. As provided in article 8 of Law No. 120 of 2008 establishing the Economic Courts, a preparatory committee shall conciliate between the parties within a period of 30 days before the commencement of the court proceedings.

The new Egyptian Investment Law No. 72/2017 [article 92] stipulates that an independent arbitration and mediation centre entitled The Egyptian Arbitration and Mediation Centre shall be established and shall have the legal personality, and it is seat shall be in Cairo.

The Centre shall pursue the settlement of the investment disputes that may arise among the investors, or among the investors and the state or one of the state’s public or private bodies, should they agree at any point to settle the dispute through arbitration of mediation before this Centre, subject to the provisions of Egyptian laws regulating the arbitration and dispute settlement.

The Centre is currently in the process of being established.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Interim relief

20. What are the forms of emergency or interim relief?

Egypt

Interim relief could be granted either by a judgment of the Court of Summary Matters or by order of the interim judge.

According to article 27 of the CCCP, any party may request for interim relief from the court of summary matters, conditioned that (i) the urgency for the need of the interim measure requested is met; (ii) the requested interim measure does not affect the underlying right.

Where, the above-mentioned conditions are met, the court of summary matter may – on its own discretion – issue a judgment ruling a provisional protection or preserve the status quo pending trial.

The CCCP does not provide for any grounds upon which an interim judge may base its decisions to grant or deny requests for interim measures.

On the other hand, and regarding interim judges, Egyptian law created another accelerated path to obtain Interim measures with less complex procedures, ie, notification of the counterparty is not required and the judge is under no obligation to provide the legal reasoning for the order granting interim measures. 

According to article 194 of CCCP, any of the parties may request an emergency or interim relief prior to the issuance of the final judgment, in the form of a petition includes the facts of the relief and the proving evidence.

In terms of jurisdiction, the request of interim relief may be submitted to an Interim Judge in the competent court or to the chairman of the adjudication tribunal that already has jurisdiction over the dispute, according to article 194 of the CCCP.

The Competent Court of the dispute may also issue an interim relief, for the protection of rights and the prevention of harms. For instance, the court may order the other party to:

  • maintain or restore the status quo;
  • take a certain action, or refrain from taking a certain action;
  • provide means of preserving assets; or
  • preserve significant evidence.

 

Concerning interim reliefs pending arbitration procedures, article 14 of the EAL states that upon request of either party to the arbitration, the court referred to in article 9 may order the taking of an interim or conservatory measure, whether before the commencement of the arbitral proceedings or during the proceedings.

The EAL also empowered the parties to arbitration to authorise the arbitral tribunal to grant interim relief upon the parties’ agreement. Article 24/1 of the EAL stipulates that the parties to arbitration may agree that the arbitral tribunal shall be entitled to order any party to take interim or conservatory measures it deems necessary.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

21. What must a petitioner show to obtain interim relief?

Egypt

According to article 194 of the CCCP, the request of one of the parties to obtain an interim relief must be in the form of a petition, which must be filed before the presiding judge or the judge of summary measures. In this request, the petitioner must explain the grounds for the said request, along with the factual assertations and the supporting documents. This request should usually reflect the danger in which the rights of the petitioner are and the urgency of such interim relief, in order to protect the petitioner’s rights from harm.

However, the request for interim relief from the court of summary matter should be made in accordance with the normal procedures of filing a lawsuit, ie, preparing the memo of claim along with the supporting documents and notifying the defendant.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Decisions

22. What types of decisions (other than interim relief) may a court render in civil matters?

Egypt

According to the CCCP, Egyptian courts generally render final judgments after the closure of the proceedings. The courts may also issue summary and interlocutory decisions to ensure the proper functioning of the proceedings. Those interlocutory decisions, such as the appointment of an expert and the document production order, are taken based on the nature of the dispute and the parties’ requests.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

Egypt

Egyptian courts may render their final judgment in the case after the closure of the proceedings, when the parties declare that they have no additional pleadings or assertations and request the court to render its final judgment. 

The court may also dismiss the case at the preliminary stage upon the plaintiff’s request. The case dismissal request must be based on one of the grounds mentioned exclusively in the CCCP. The court may also render summary decisions based upon the request of the interested party, if there is a necessity for such action. 

The court may also take interlocutory decisions during the trial to ensure the proper functioning of the proceedings and the representation of the parties.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

24. Under which circumstances will a default judgment be rendered?

Egypt

A default judgment is rendered by the competent court, if one of the parties fails to attend the court hearings, respond to the other party’s submissions or to present its defences to the claims made against it during the court proceedings.

If the plaintiff is the defaulting party, although duly notified, the defendant can ask the court to render a judgment or strike off the case. On the other hand, if the defendant is the defaulting party, the plaintiff may request the court to render its default judgment. 

Before rendering the default judgment, the court must ascertain that the defaulting party has been duly served the notification for its appearance.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

25. How long does it typically take a court of first instance to render a decision?

Egypt

The duration of a case before the court of first instance depends on several elements, which include the nature of the case, the number of the parties, the court’s case backlog, the parties’ requests, and the procedural circumstance. 

In general, the proceedings before Egyptian courts are slow and prolonged. On average, courts of first instance usually take two to three years to render a judgment.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Parties

26. How can third parties become involved in proceedings?

Egypt

The CCCP regulates the involvement of third parties in the court proceedings. Article 117 of the CCCP provides that a party in the proceedings can request the joinder of a third party, to be involved in the proceedings, before the day of the hearing, through the same procedures required for filing a lawsuit.

On the other hand, according to article 118 of the CCCP, the court may involve a third party when it sees that the involvement of this third party will be in favour of achieving justice and shall demonstrate the truth. 

Pursuant to article 126 of the CCCP, a third party may intervene in the dispute and join one of the parties to become a co-plaintiff or co-defendant. In this regard, the intervention must be through the same procedures required for filing a lawsuit, or through an oral request in the hearing by the potential party. The court shall not accept the intervention request after the closure of the proceedings. 

In principle, the failure to join a particular party in the proceedings does not preclude a litigant from later bringing the same or similar claims against that party. Moreover, judicial decisions bind the parties to the dispute exclusively and are extended to their successors in certain circumstances.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Fact-Finding and Evidence

27. Describe the rules of fact-finding in your jurisdiction.

Egypt

The CCCP allows the parties to provide their evidence when filing their statement of claim or defence and to present such evidence during the hearing. There is no requirement for a party to provide evidence that may assist the other party’s case.

The parties can request the court to order disclosure of a specific document on two conditions, which are: identifying the document in reasonable detail and showing how material and relevant it is to the case.

Article 135 of the Egyptian Evidence Law No. 25 of 1968 entitles courts to appoint one or more experts if necessary.

The court may, upon its own discretion or upon any of the parties’ request, appoint experts. However, parties can also submit expert evidence.

Experts’ reports can be challenged. Upon such a challenge, the court may refer issues back to the same experts or re-assign them to different experts.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

Egypt

Egyptian courts usually rely on the parties to present the taking of evidence and to request it. However, the court may request the taking of evidence, such as appointing experts, requesting witness statements and interrogatory of the parties. 

The CCCP allows the parties to submit evidence supporting their requests for relief when filing the memorandum of claim and the memorandum of defence. Additionally, parties present oral and documentary evidence on which they base their arguments during the proceedings. 

In principle, the burden of proof, and consequently, the burden of producing evidence, lies on the party making the assertion or claim. Thus, generally such burden is primarily on the plaintiff, or alternatively, on the defendant who can also be required to establish certain affirmative defences in its pleadings.

It is worth mentioning that the court must respect two essential principles in this regard, which are the neutrality of the judge, and the burden of proof.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

Egypt

According to the CCCP, the parties to the dispute must provide their evidence to prove the facts on which their arguments rely, at the time of filing the memorandum of claim and the memorandum of defence. The parties are also free to present new evidence during the court proceedings.

In Egypt, there is no document disclosure procedure during court proceedings. In principle, there is no requirement for a party to produce evidence that may be harmful to it or help the other party during the proceedings. However, the court may order disclosure of a specific document, upon the request of one of the parties. This document must be specified in detail, and the requesting opponent must show its importance and relevance to the dispute.

However, if a party is ordered by the court to produce a document, and failed to produce it without a reasonable excuse, the court may draw adverse inferences from the absence of the requested evidence.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

Egypt

Under Egyptian Evidence Law on Civil and Commercial Matters No. 25 for 1968 (Evidence Law), the court has discretionary power to evaluate the reliability of the witness testimony. The witness of fact shall be questioned by the court. The witness should answer the questions of the party claiming its testimony, then the questions of the other party, without any of the parties interrupting each other or the witness during the testimony (article 87 of the Evidence Law). While counsel for each of the parties may ask the witness questions; the court usually does not permit extensive examination of the witness. 

As the law is largely silent on this matter to the exception of certain aspects in criminal matters, in practice, basic witness preparation by the party submitting the testimony of the said witness before its presence in the court is not prohibited. 

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

31. Who appoints expert witnesses? What is the role of experts?

Egypt

Pursuant to the Evidence Law, the court can appoint one or three experts, either sua sponte or upon one of the parties’ requests. Similarly, the court shall approve the parties’ agreement in case they agree to appoint one or three experts. In the same context, parties can submit expert evidence, which represents, in this regard, the parties’ interests, while experts appointed by the court rely on the court.

ers within their expertise, whether in technical, medical, legal or any other field, upon the request of the court or the litigants.

The expert’s report may be challenged by one of the parties, which can cause the court to refer the matters back to the same expert or to reassign the matters to new experts

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

32. Can parties to proceedings (or a partys directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a partys failure to testify or act as a witness?

Egypt

In principle, the parties to a dispute cannot act as witnesses in the trail. In a similar vein, in the case of a legal person, only the individuals who represent the company are prevented from acting as witnesses, while other employees, directors or shareholders may act as witnesses. The court has a discretionary power to evaluate the testimony and to decide on their reliability.

Since the parties to the dispute cannot act as witnesses, the court cannot draw negative inferences.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

Egypt

According to article 19 of the Judicial Authority Law No. 46 of 1972 (Judicial Authority Law), the Arabic language is the official language of the Egyptian courts, and the only language adopted in court proceedings. Consequently, all documentation must be in Arabic or must be translated into Arabic by a licensed translator to be considered by the court.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

Egypt

In light of the Evidence Law, each party must prove the facts on which they base their arguments. As a general principle in Egyptian law, the burden of proof in court proceedings is always on the party who brings a claim before the court. The court shall depend on the evidence provided by the parties to render its judgment. Undisputed and uncontested facts do not need to be proved. 

Under Egyptian law, the standard of proof is balance of probabilities. The legal evidence includes the written evidence in the first place, then acknowledgment, testimony and prima facie in writings. The court has discretionary power to evaluate the evidence and its reliability.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Appeals

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

Egypt

In view of the CCCP, there are two degrees of litigation in Egypt, the First Instance degree and the Appellate degree. Moreover, judgments by the Court of Appeal may be reviewed before the Court of Cassation.

The Courts of Appeal represent the second degree of litigation and the appellate degree in Egypt. There are eight Courts of Appeal, which are located in major cities across Egypt. Judgments of First Instance may be appealed before the competent Court of Appeal, based on alleged errors of fact or law.

On the other hand, the Court of Cassation embodies the top of the court pyramidal hierarchy in Egypt. There is one Court of Cassation in Egypt which is located in Cairo. Judgments rendered by the Court of Appeal are subject to appeal before the Court of Cassation, based on alleged errors of law only (incorrect application of the law), provided that the value of the case is higher than E$100,000 (article 248 of the CCCP). Furthermore, final judgments, rendered by any Egyptian court, are subject to appeal before the Court of Cassation, in case they contradict a previous final judgment between the same parties (article 249 of the CCCP).

As to the appeal mechanism for cases under the Economic courts, pursuant to the ECL and its 2019 amendments, while judgements are considered to be final for cases of value of EGP500,000 or less, claims exceeding EGP500,000 are reviewed by the appellate circuit of the competent economic court.

Judgments issued by the Chambers of Appeal in the Economic Courts acting as the first instance court (which has jurisdiction over claims valued at above EGP10 million) are appealable to the Cassation Court.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

Egypt

In light of the CCCP, as mentioned above, the standard of review depends on the court to which the appeal will be filed.

As per judgments of first instance, the appeal may be filed before the competent Court of Appeal within 40 days of the final judgment. The court will rehear the entire case de novo on matters of fact and matters of law and accept new evidence, however, new claims are not allowed.

On the other hand, judgments rendered by the Court of Appeal are subject to appeal before the Court of Cassation. This appeal may be filed to the Court of Cassation within 60 days of the final judgment’s issuance. The Court of Cassation shall review the judgment of the Court of Appeal under a de novo standard as to questions of law and its application; as it will examine the application and interpretation of the law, insufficient reasoning or procedural irregularities.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

37. How long does it usually take to obtain an appellate decision?

Egypt

The duration usually depends on a number of elements, which include the nature of the dispute, the number of the parties, the court’s case backlog, the parties’ requests, the complexity of the case and the procedural circumstance. 

In general, the proceedings before Egyptian courts are slow and prolonged. On average, appellate proceedings could take up to two years to obtain an appellate decision.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Special proceedings

38. Are class actions available?

Egypt

Egyptian legislation does not regulate class actions. However, the concept of class actions can only be found in collective labour relationships. The Labour Law sets out the mechanism and the procedures for the settlement of collective labour disputes, which are usually between the employer and all the employees or group of the employees, under the collective labour agreements.

In principle, the general mechanism of damage actions in Egypt is through filing a lawsuit individually or collectively by hiring a lawyer to initiate the proceedings on their behalf. In the same vein, other third parties may decide to intervene in the case and join the proceedings.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

39. Are derivative actions available?

Egypt

Law No. 159/1981 on Joint Stock Companies, Partnerships Limited by Shares and Limited Liability Companies (Corporate Law) grants the shareholders the right to bring a derivative claim against the company’s directors in certain circumstances. Thus, each shareholder has the right to file a lawsuit against one or more of the members of the board of directors, to recover the loss incurred by the company as a result of their negligence, default, wrongdoings or failure of management in general, which caused harm to the company.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

40. Are fast-track proceedings available?

Egypt

According to Egyptian law, summary proceedings are the only fast-track proceedings in Egypt.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

41. Is it possible to conduct proceedings in a foreign language?

Egypt

Pursuant to article 19 of the Judicial Authority Law, which provides that Arabic is the official language of the courts. In the case of non-Arabic speaking litigants or witnesses, the court shall hear their statements or testimonies through an interpreter. 

Therefore, it is not possible to conduct proceedings before the Egyptian courts in a foreign language, as the Arabic language is the official language of the Egyptian judiciary and the only language adopted in court proceedings.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Role of Domestic Courts In Arbitration Matters

42. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

Egypt

The EAA applies to arbitration between private or public parties, regardless of the nature of the legal relationship from which the dispute derives, when the arbitration is conducted in Egypt, or when it is a commercial international arbitration conducted outside Egypt and the parties have agreed to apply Egyptian law. 

According to article 2 of the EAA, an arbitration is considered commercial within the scope of this Law if the dispute arose over a legal relationship of an economic nature, whether contractual or non-contractual. This comprises, for example, the supply of goods or services, commercial agencies, construction, engineering or technical know-how contracts, the granting of industrial, touristic and other licenses, technology transfer, investment and development contracts, banking, insurance and transport operations, exploration and extraction of natural wealth, energy supply, the laying of gas or oil pipelines, the building of roads and tunnels, the reclamation of agricultural land, the protection of the environment and the establishment of nuclear reactors.

According to article 3 of the EAA, an arbitration is considered international within the scope of this Law if the subject matter is a dispute related to international commerce where the parties have principal places of businesses in different states, if the subject matter of the dispute is linked to more than one country, or if the parties have agreed to resort to a permanent arbitral organisation or arbitration centre.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

43. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

Egypt

Generally, Egyptian courts do not intervene in domestic and international arbitration proceedings. However, the EAA provides that the relevant Egyptian Court of Appeal may be resorted to address matters related to issuing and executing interim or conservatory measures, deciding matters related to the constitution and challenges and termination of the arbitral tribunal, sanctioning witnesses who fail to appear and testify, ordering judicial assistance, extending the period of the proceedings or terminating proceedings.

Egyptian courts have further jurisdiction over annulment proceedings (articles 52-54 of the EAA) as well as enforcement proceedings (articles 55-58 of the EAA).

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

44. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

Egypt

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

The EAA applies to the enforcement of arbitral awards rendered in proceedings in which the place of  arbitration is Egypt. It also applies to awards rendered in proceedings seated abroad, to the extent that the parties have agreed to apply Egyptian law to those proceedings (article 1 of the EAA).

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 of the CCCP). 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 eg, 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, eg, 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 are 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.

Once the arbitral tribunal renders its award, the award is final, and the dispute may not be reviewed by or relitigated before state courts. However, the party against whom the award has been issued may request an annulment of the Award under articles 52-54 of the EAA.

Article 53 of the EAA provides that an arbitral award may be annulled if:

  • the award was based on an invalid arbitration agreement;
  • either party to the arbitration agreement was at the time of the conclusion of the arbitration agreement fully or partially incapacitated according to the law governing its legal capacity;
  • either party was denied the opportunity to properly present its case before the tribunal;
  • the arbitral award failed to apply the law agreed upon by the parties (and care should be taken to ensure that a claim of failure to apply the law agreed upon by the parties does not encompass a claim of misapplication of that law);
  • the composition of the arbitral tribunal or the appointment of the arbitrators was in conflict with the Arbitration Law or the parties’ agreement;
  • the arbitral award dealt with matters not falling within the scope of the arbitration agreement or exceeded the limits of this agreement; or
  • the arbitral award or award-related procedures contain a legal violation causing nullity.

A decision nullifying an award, however, may be appealed before the Egyptian Court of Cassation.

In turn, article 58 of the EAA provides that an application for enforcement of an arbitral award shall not be granted unless the Court of Appeals has ascertained (i) that it does not contradict a judgment previously rendered by the Egyptian courts on the subject matter in dispute; (ii) that it does not violate the public policy in the Arab Republic of Egypt; and (iii) that it was properly notified to the party against whom it was rendered.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Effects of judgment and enforcement

45. What legal effects does a judgment have?

Egypt

As per article 101 of the Evidence Law, which provides that the final judgment that is rendered by a competent Egyptian court has the authority of res judicata whereby it becomes directly enforced and binding against the losing party. The parties to the dispute are exclusively bound by the court judgment, which may be extended to their successors in certain circumstances.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

46. What are the procedures and options for enforcing a domestic judgment?

Egypt

In principle, the judgment must be a final definitive judgment to be enforced. If judgments are not enforced voluntarily, compulsory enforcement shall take place in accordance with the legal procedures prescribed by law. According to article 279 of the CCCP, court bailiffs shall carry out the enforcement upon a request from an enforcement judge, once the writ of enforcement has been delivered to the authority responsible for the enforcement of judgments.

The enforcement of a judgment can be in the form of direct enforcement, through the performance of certain actions as stated in the judgment, or indirect enforcement through seizure or sale of property of the losing party. The enforcement process is usually slow due to the procedural challenges thereto.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

Egypt

Egypt is a party to the Hague Conference on Private International Law (HCCH) and signed on Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters in 1965. Additionally, Egypt is also a party to bilateral and multilateral treaties relating to the enforcement of judgments.

The enforcement of a foreign court judgment must satisfy certain requirements:

  • reciprocal treatment between Egypt and the other country regarding the enforcement of court judgments;
  • the validity of the jurisdiction of the court issuing the judgment;
  • the foreign judgment must not conflict with a previous Egyptian judgment regarding the same subject matter;
  • the foreign judgment must not contradict the public order in Egypt; and
  • the foreign judgment must be definitive and final.

In principle, the enforcement of a foreign judgment is initiated through filing a court lawsuit to obtain an enforcement order. Once the enforcement order is issued, it is then enforceable through the same procedures of enforcing a domestic judgment.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

Costs and Funding

48. Will the successful partys costs be borne by the opponent?

Egypt

According to article 184 of the CCCP, Egyptian courts obligate the losing party to pay the court fees, which include a percentage of the final judgment along with the lawyer’s fees. 

In an exception by article 185 of the CCCP, the court may oblige the successful party to pay the court fees in full or partially, if its claims before the court were undisputed by the losing party, if the successful party caused the losing party to incur unnecessary expenses, or if the successful party hid significant documents that are decisive in the case.

In another exception by article 186 of the CCCP, if the case was partially upheld or dismissed, the court may either obligate each party to incur their own costs for the proceedings or to oblige one of the parties to pay them in full.

On the other hand, the successful party may initiate a sperate action before the competent court to recover the litigation costs in addition to the legal fees, which are determined by an expert appointed by the court.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

Egypt

Pursuant to articles 97 and 98 of the Egyptian Constitution, legal aid and access to justice are constitutional rights.

Litigation is a right that is safeguarded and an inalienable right for all. The State shall guarantee the accessibility of judicature for litigants and rapid adjudication on cases.

The right of defense either in person or by proxy is guaranteed[…] The law shall provide all means by which those who are financially unable can resort to justice and defend their rights.

 

This principle was affirmed by the Egyptian judiciary in the rulings of the Supreme Constitutional Court and the Court of Cassation. 

In general, legal assistance is available through legal aid offices in courts of first instance. For example, the legal assistance and dispute settlement offices in family courts provide legal aid to litigants. In Child Courts, there are special requirements and proceedings to ensure free legal assistance. Moreover, the right to free legal counsel is mandatory before criminal courts. 

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

50. Are contingency fee arrangements permissible? Are they commonly used?

Egypt

Contingency fees are not regulated under Egyptian law. It is usually charged in the form of a fixed success fee or a fixed percentage of the damages recovered in the dispute.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

51. Is third-party funding allowed in your jurisdiction?

Egypt

Egyptian law does not address the issue of third-party funding. Accordingly, there are no restrictions on this matter, provided that the funding process is not through a gambling contract or champerty, which are illegal under Egyptian law. In practice, Egyptian courts do not allow such funding arrangements in the court during the proceedings.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

Egypt

There are no fee scales for lawyers in Egypt. Legal fees can be in the form of hourly rates, contingency fees or a fixed amount for a specific case.

Answer contributed by Karim A Youssef, César R Ternieden and Kamel ElShandidy

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