Arbitration

Egypt adhered to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1959 without making any declarations or notifications. Moreover, in 1974, Egypt acceded to the 1965 Convention of the International Bank of Reconstruction and Development of Washington, which established the International Centre for the Settlement of Investment Disputes.

Further, Egypt has ratified several regional conventions relating to international commercial and investment arbitration, including:

• the 1954 Convention on Enforcement of Decisions between the states of the Arab League;
• the 1974 Convention on the settlement of Investment Disputes between the hosting countries of Arab investors and the nationals of other Arab countries;
• the Amman Arab Convention on Commercial Arbitration of 1987; and
• the Unified Agreement on the Investments of Capitals in Arab States of 1980, which was signed in Amman and entered into force on 7 September 1981.

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Egypt has signed 115 bilateral investment treaties that include possible recourse to arbitration, of which 30 did not enter into force and 13 were terminated.

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Law No. 27 of 1994 concerning Arbitration in Civil and Commercial Matters (the Arbitration Law) applies to domestic, international and foreign arbitrations. The Law applies to arbitration proceedings taking place in Egypt, regardless of the nature of the dispute, even if one or both parties are public juristic persons. The Arbitration Law also applies to international commercial arbitration proceedings conducted abroad where the parties agree to be subject to its provisions. Finally, the Court of Cassation ruled that, in compliance with article III of the New York Convention of 1958, the Arbitration Law shall govern the enforcement of foreign awards even if the parties had not agreed to subject their relevant foreign arbitration proceedings to said Law.

A distinction shall be made between international and foreign arbitration proceedings.

In one respect, article 3 of the Arbitration Law states that arbitration proceedings are considered international if the subject matter relates to international trade. A matter is deemed to relate to international trade in the following circumstances:

• the respective head offices of the parties are situated in two different countries;
• the agreement is to resort to institutional arbitration;
• the dispute is linked to more than one state; and
• the respective head offices of the parties are situated in the same country but one of the places listed hereunder is located outside such country:
• the seat of arbitration;
• the place of performance of the essential part of the obligations; or
• the place most closely linked to the subject matter of the dispute.

In another respect, arbitration proceedings are foreign under the said Law if they are merely conducted outside Egypt, meaning that the seat of arbitration is outside Egypt.

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In specific areas, the Arbitration Law departs from the UNCITRAL Model Law, particularly with regard to the challenge of an arbitrator, the duration of the proceedings and an additional ground for annulment (ie, in case the arbitral tribunal disregards the application of the law that the parties have agreed to apply to the substance of their dispute (article 53(d))).

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The Arbitration Law adopted the principle of ‘party autonomy’; therefore, parties are at liberty to choose or designate the way in which the arbitrators are to be chosen, and most arbitral proceedings are dependent upon the agreement of the parties. However, the Court of Cassation has dictated a mandatory rule to be applied if an arbitrator is replaced. In this case, at least one hearing shall be held in the presence of the substitute arbitrator.

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As mentioned in question 5, the Arbitration Law adopted the principle of freedom to arbitrate, with preference always given to the contractual provisions, including those regulating the choice of the applicable law. However, if the parties fail to agree on the legal rules to be applied to the merits of the dispute, the arbitral tribunal shall apply the substantive rules of the law it deems most closely connected to the dispute.

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The Cairo Regional Centre for International Commercial

Arbitration (CRCICA)

1 Al Saleh Ayoub St

Zamalek

Cairo

Egypt

info@crcica.org.eg

www.crcica.org.eg

Since its establishment in 1979, the CRCICA adopted the UNCITRAL Arbitration Rules with minor modifications. The list of international arbitrators and experts maintained by the Centre includes eminent practitioners from all over the world. However, parties are not obliged to appoint their arbitrators from among this list. There are no restrictions regarding the language of arbitration or the applicable law. Fees are calculated on the basis of the amount in dispute.

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Arbitration is not permitted in matters that cannot be subject to compromise. It is not permissible to refer to arbitration disputes concerning personal status or public policy, such as criminal matters, constitutionality of law or real estate ownership.

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The requirements for an arbitration agreement are those generally required for any agreement. Pursuant to article 12 of the domestic Arbitration Law, the arbitration agreement must be in writing; otherwise, it will be null and void. It shall be considered in writing not only if it is included in a document signed by both parties, but also if it is included in letters, cables (eg, a telegram or diplomatic cable) or other means of written communication exchanged between the parties.

If either party to a dispute proceeds with the arbitration proceedings in spite of its knowledge that there has been a violation of a certain requirement under the arbitration agreement or non-compliance with a non-mandatory provision of the law, and if the party does not state its objection to such violation or non-compliance within the period agreed upon, and does not raise an objection within a reasonable period in the absence of an agreement, such inaction shall be deemed to constitute a waiver of the party’s right to object.

With regard to disputes relating to administrative contracts, agreement on arbitration shall be reached upon the approval of the competent minister or the official assuming his or her powers with respect to public juridical persons.

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The arbitration agreement is no longer enforceable if it is declared null and void by a judicial decision or an arbitral award; Law No. 27/1994 adopted the principle of the separability of the arbitral agreement (article 23). Thus, if any doubt arises with respect to the validity of the contract in which the arbitration agreement is embodied, the outcome of such doubt shall in no way affect the arbitration agreement. The nullity or termination of the contract will not affect the arbitration clause, provided that the clause is valid per se.

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Yes. Article 23 of Law No. 27 /1994 stipulates that: ‘The arbitration clause is deemed to be an agreement that is independent of the other conditions of the contract. The nullity, repudiation or termination of the contract shall not affect the arbitration clause therein, provided such clause is valid per se’.

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An arbitration agreement, like any agreement, imposes certain obligations on its parties. However, only its parties are bound by it. Thus, the extension of the arbitration agreement to non-signatories is generally prohibited.

Article 145 of the Civil Code provides that the effect of a contract extends to the contracting parties and the general successors without prejudice to the rules relating to inheritance, unless it appears from the contract, the nature of transaction or from the law that such intention shall not affect the general successor.

The general principle is that third parties or non-signatories are not bound by an arbitration agreement except in very limited cases. Indeed, the Court of Cassation decided on 22 June 2004 that an arbitration agreement may be extended to a non-signatory if it is proven that it had taken part in the execution of the obligations entered into by the signatory, or created confusion regarding the party vested with obligations.

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The Arbitration Law does not regulate third-party participation in arbitration. However, the CRCICA rules regulate the joinder of a third person to the arbitration proceedings provided that such third person is a party to the arbitration agreement.

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As it appears in articles 145 and 152 of the Civil Code, Egyptian Civil Law has limited the cases in which the effect of the contract extends to third parties and it does not allow any further extension of such effect. However, the decision of the Court of Cassation on 22 June 2004, as mentioned in question 12, allowed the extension of the arbitration agreement to non-signatory parent or subsidiary companies of a signatory company, provided that the non-signatory was involved in the performance of the contract in dispute or created confusion regarding the party vested with obligations.

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The Arbitration Law does not provide special rules in this respect.

However, the CRCICA rules provide particular rules concerning the appointment of arbitrators in multiparty arbitrations. According to article 10 of the CRCICA rules, where three arbitrators are to be appointed and there are multiple parties as claimant or as respondent, unless the parties have agreed to another method of appointment of arbitrators, the multiple parties jointly, whether as claimant or as respondent, shall appoint an arbitrator. In the event of failure of the multiple parties to jointly appoint an arbitrator, the Centre shall, at the request of any party, constitute the arbitral tribunal, and in doing so, may revoke any appointment already made, and appoint or reappoint each of the arbitrators and designate one of them as the presiding arbitrator.

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No. Law No. 27/1994 does not contain any reference to the possibility of an arbitral tribunal to consolidate separate arbitral proceedings. The only means for the parties to do this would be to select the rules of an arbitral institution that contain rules regulating consolidation of separate arbitral proceedings. However, the CRCICA will include procedures regulating consolidation of arbitral proceedings, among other rules, in the amendment of its arbitration rules in 2020.

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National legislation often contains some minimal requirements that those selected to serve as arbitrators must satisfy. According to article 16 of the Arbitration Law, any natural person may be selected to act as an arbitrator, provided that he or she has legal capacity. There are no restrictions based on gender or religion; however, judges who are still in active service must obtain permission to act as arbitrators.

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Article 16 of the Arbitration Law is permissive as to the requirements to sit as arbitrator. This article only prohibits minors and those who are under guardianship, and those who have been deprived of their civil rights by reason of an indictment for a felony or a misdemeanour breaching honesty, or resulting from a declaration of their bankruptcy. Further, article 16 does not require the arbitrator to be of a given gender or nationality, unless otherwise agreed upon between the two parties.

In Egypt, practising lawyers regularly sit as arbitrators; however, retired judges and law professors are sometimes appointed by parties or institutions. In construction arbitration, engineers also frequently sit as arbitrators. The law allows active judges to serve as arbitrators provided that the appointed judge obtains an authorisation from the Supreme Judicial Council.

The CRCICA has been supporting gender diversity in arbitral panels. For the list procedure provided under articles 8 and 9 of the CRCICA Rules on the appointment of arbitrators, the Centre usually ensures that there are female arbitrators among the identical list sent to the parties. Further, on 10 December 2017, the CRCICA signed the Equal Representation in Arbitration Pledge, and as a sign of support for diversity, in 2017, the CRCICA also appointed a female deputy director for the first time since its inauguration. Finally, the CRCICA also supports age and geographic diversity. Depending on the language of arbitration, this year the CRCICA has started to appoint arbitrators from sub-Saharan Africa.

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If a party fails to appoint an arbitrator, or if the two appointed arbitrators fail to agree on a matter on which their agreement is required, or if a third party does not perform an act entrusted to him or her in this regard, the competent judicial court will carry out the required procedure upon the request of either party, unless the agreement provides for another method of accomplishing such a procedure or act.

Under the CRCICA rules, if the arbitral tribunal has not been appointed within the period agreed by the parties or within 30 days of receipt by the CRCICA of a party’s request for appointment, a sole arbitrator, a second arbitrator or a presiding arbitrator, as the case may be, shall be appointed by the CRCICA.

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Under the Arbitration Law, an arbitrator may be challenged in the case of circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator may also be challenged if he or she does not possess the qualifications agreed to by the parties. Arbitrators must resign if faced with a clear conflict of interest. Article 19 provides that the request for recusal shall be submitted in writing to the arbitral tribunal, indicating the reasons for recusal, within 15 days of the date the applicant becomes aware of the composition of such tribunal or the conditions justifying the recusal. Such request shall be referred by the tribunal to the state court for its final decision.

Pursuant to article 20 of the Arbitration Law, if an arbitrator is unable to perform his or her mission, or fails to perform it, interrupts performance in a manner that leads to unjustifiable delay in the arbitral proceedings, does not abstain or is not removed by agreement between the parties, the competent state court may terminate his or her mission on the basis of the request of either parties.

According to the prevailing scholarly view, as well as jurisprudence, institutional rules regulating challenges and removal of arbitrators shall apply provided that the removal is decided by an independent panel.

However, there is no tendency to apply or seek guidance from the IBA Guidelines on Conflicts of Interest in International Arbitration.

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All arbitrators, including those who are party-appointed, must be independent and impartial. The arbitrator shall avoid ex parte communications with any party regarding the arbitration.

The parties’ agreements or the concerned arbitration centre’s rules, as the case may be, provide for the method of remunerating the arbitrators. Under the CRCICA rules, the fees of the arbitrator shall be determined based on the sum in dispute (aggregate value of all claims, counterclaims and set-offs). If the sum cannot be ascertained, the CRCICA shall determine the fees of the arbitral tribunal, taking all relevant circumstances into account.

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Article 16(3) of Law No. 27/1994 stipulates:

The arbitrator’s acceptance of the mission entrusted to him shall be in writing. When accepting, he/she must disclose any circumstances which may cast doubts on his independence or impartiality.

Also, article 11(1) of the CRCICA Rules stipulates:

When a person is approached in connection with his or her possible appointment as an arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances. Any doubts as to the duty to disclose a fact, circumstance or a relationship shall be interpreted in favour of disclosure.

Both Law No. 27/1994 and the CRCICA Rules provide that there is a duty on the arbitrator to disclose not only the circumstances that could affect his or impartiality and independence, but also the circumstances that could affect his or her impartiality and independence from the normal person’s perspective.

Further, article 11(2) of the CRCICA Rules stipulates:

The appointment of an arbitrator shall be completed only upon the acceptance of his or her mission. The arbitrator thus appointed shall submit, within one week after being notified with his or her nomination, a written declaration confirming his or her impartiality and independence.

Hence, the nominated arbitrator must sign a declaration of acceptance, impartiality and independence within a period of one week of being notified of his or her nomination. Upon accepting his or her mission as an arbitrator in the case at hand, such arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances.

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The general rules of law concerning liabilities apply to the arbitrator’s liability, meaning that the liability of arbitrators is not explicitly regulated in Egyptian law and that arbitrators may be liable for both negligence and intentional breach of duty.

However, if the arbitration is governed by the CRCICA rules, article 16 provides the exclusion of liability of the arbitrators.

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The arbitral tribunal is empowered to rule on motions related to its non-competence, including motions predicated on the absence of an arbitral agreement, its expiry or nullity, or its failure to include the subject matter of the dispute. This shall be invoked no later than the date of submission of the respondent’s statement of defence. Those pleas may be decided upon by the arbitral tribunal before ruling on the merits or join them to the merits to adjudicate both together.

A state court seized with a dispute in respect of which an arbitral agreement exists must decide that the action is inadmissible if the defendant invokes a plea of inadmissibility before raising any request or defence in the case.

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The Arbitration Law adopted the competence-competence principle by virtue of which the arbitral tribunal has jurisdiction to rule on its own jurisdiction. This is also enforced by the principle of separability of the arbitration agreement.

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The arbitration is conducted in Arabic, unless another language or languages are agreed upon by the parties or determined by the arbitral tribunal.

The parties to the arbitration are entitled to agree on the place of arbitration in Egypt or abroad. Without such an agreement, the arbitral tribunal will determine the place of arbitration, taking into consideration the circumstances of the case and the convenience of the place to the parties. This shall be without prejudice to the power of the arbitral tribunal to convene in any place it considers appropriate to undertake any of the arbitral proceedings.

Under the CRCICA rules, in absence of an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings. The same applies to the place of arbitration that shall be determined by the arbitral tribunal, in absence of the parties’ agreement, having regard to the circumstances of the case.

The substantive law of the dispute is determined as follows. Article 39 of Law No. 27/1994 stipulates:

1. The Arbitral Tribunal shall apply the rules agreed by the parties to the subject matter of the dispute. If they agree to apply the law of a specific state, then the substantive rules of that law, not those governing conflict of laws, shall be followed, unless the parties agree otherwise.

2. If the parties fail to agree on the legal rules to be applied to the subject matter of the dispute, the Arbitral Tribunal shall apply the substantive rules of the law it deems most closely connected to the dispute.

Also, article 35(1) of the CRCICA Rules stipulates:

The arbitral tribunal shall apply the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law which has the closest connection to the dispute.

Both Law No. 27/2994 and the CRCICA Rules apply the same rule where party autonomy applies here with regard to the parties’ choice of the substantive law applicable to the dispute. If no choice of law has been agreed upon by the parties, the arbitral tribunal shall apply the substantive rules of law of the place mostly connected to the dispute.

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Arbitral proceedings commence on the date on which the respondent receives the request for arbitration from the claimant, unless the parties agree on another date.

The Arbitration Law does not provide for formal requirements for the notice of arbitration. However, under the CRCICA rules, the notice of arbitration shall be filed with the CRCICA and shall include:

• the names and contact details of the parties;
• a demand that the dispute be referred to arbitration;
• an identification of the arbitration agreement;
• an identification of the disputed contract or the relevant disputed relationship;
• a brief description of the claim;
• an indication of the amount involved; and
• the relief or remedy sought.

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Under the Arbitration Law, the arbitral tribunal shall hold pleading sessions to enable each party to explain the subject matter of its claim and to present its arguments and evidence. However, it may limit proceedings to the submission of written memos and documents unless the parties otherwise agree. The parties must be notified of the dates of the sessions sufficiently in advance of the scheduled dates. Also summary minutes of each meeting held shall be recorded in a procès-verbal, and a copy thereof shall be delivered to each of the parties, unless they agree otherwise.

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Each party shall have the burden of proving the facts relied on to support its claim or defence. Witnesses, including expert witnesses who are presented by the parties to testify to the arbitral tribunal on any issue of fact or expertise. Their statements are presented in written form and signed by them. The arbitral tribunal determines the admissibility, relevance, materiality and weight of the evidence offered.

The arbitral tribunal may appoint one or more experts to submit on certain specific issues determined by the arbitral tribunal, a written report or an oral report to be included in the meeting. A copy of the terms of reference regarding the report entrusted to the expert will be sent to each party immediately after its submission, granting each party the opportunity to express its opinion thereon. Each of the parties is entitled to review and examine the documents upon which the expert relied in his or her report.

The arbitral tribunal may decide, after the submission of the expert’s report, whether on its own initiative or upon the request of a party to the arbitration, to hold a hearing to hear the expert and provide the parties with the opportunity to examine and cross-examine the expert about his or her report. During the meeting, each of the parties may present one or more expert witnesses to give testimony on the issues raised in the report of the expert appointed by the arbitral tribunal, unless otherwise agreed upon between the parties.

The IBA Rules on the Taking of Evidence are not regulated under Egyptian law. There are no legal impediments preventing the parties from agreeing to apply or seek guidance from said Rules. Articles 20-22 and 27 of the Law of Evidence in Civil and Commercial Matters (the Evidence Law) regulate production of documents with rules that are somewhat similar to the IBA Rules on the Taking of Evidence.

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The president of the concerned court is competent, upon the request of the arbitral tribunal, to condemn any witness who refrains from attending or declines to reply, by inflicting the sanctions prescribed in the Evidence Law. This shall entail the suspension of the arbitral proceedings until a decision by the court is issued.

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No particular mention is made of the question of confidentiality in the Arbitration Law save for article 44(2), which provides that the arbitral award may not be published in whole or in part unless the parties have given approval.

However, under the CRCICA rules, the parties undertake to keep confidential all awards, decisions and materials submitted by the parties in the arbitral proceedings. This undertaking applies to the arbitrators, the tribunal-appointed experts and the secretary of the arbitral tribunal. Though they may, in writing, expressly agree to the contrary.

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The parties to an arbitration may agree that the arbitral tribunal can grant any temporary or interim measure that may be required according to the nature of the dispute at the request of a party. For example, the tribunal may maintain or restore the status quo pending determination of the dispute, take action that would prevent, or refrain from taking action that is likely to cause, current or imminent prejudice to the arbitral process, etc. The tribunal may modify, suspend or terminate an interim measure it has granted upon application of a party or on the tribunal’s own initiative. The tribunal may ask the parties to present whatever guarantee that it deems sufficient to cover the expenses of such temporary or interim measure.

Thus, the parties should explicitly and specifically agree to grant arbitrators this power.

If the party against whom the order was issued fails to execute it, the arbitral tribunal, upon the request of the other party, may authorise the latter to undertake the procedures necessary for the execution of the order, without prejudice to the right of said party to apply to the president of the concerned court for rendering an execution order.

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The Arbitration Law does not provide for an emergency arbitrator prior to the constitution of the arbitral tribunal. The CRCICA Rules do not provide for an emergency arbitrator either.

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The parties to arbitration may agree that the arbitral tribunal can, pursuant to a request by one of the parties, order either party to take whatever provisional or conservatory measures it deems necessary according to the nature of the dispute, and can request the submission of an adequate guarantee to cover the expenses of the measures it orders.

Article 26 of the CRCICA rules empowers the arbitral tribunal to order a party, without limitation, to, inter alia:

• maintain or restore the status quo pending determination of the dispute;
• take action that would prevent, or refrain from taking action that is likely to, cause current or imminent prejudice to the arbitral process itself;
• provide means of preserving assets out of which a subsequent award may be satisfied; and
• preserve evidence that may be relevant and material to the resolution of the dispute.

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No.

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In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be rendered by the majority of all its members after deliberations conducted in the manner determined by the arbitral tribunal, unless the parties agree otherwise. If the arbitral tribunal consists of more than one arbitrator, the signatures of the majority of the arbitrators shall suffice, provided that the award states the reasons as to why the minority dissented. The arbitral award must be made in writing and signed by the arbitrators.

However, article 33(2) of the CRCICA rules specifies that questions of procedure may be decided by the presiding arbitrator, if so authorised by the arbitral tribunal or where there is no majority.

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Dissenting opinions are made by individual arbitrators who do not agree with the majority in the result of the arbitration. Therefore, under the Arbitration Law, dissenting opinions shall be in writing and are attached to the decision of the majority of the arbitral tribunal.

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The arbitral award must be in writing and signed by the arbitrators, including the reasons upon which it is based, unless the parties to arbitration have agreed otherwise.

The arbitral award must include:

• the names and addresses of the parties;
• the names, addresses, nationalities and capacities of the arbitrators;
• a copy of the arbitration agreement;
• a summary of the parties’ claims, submissions and documents;
• the dispositive part of the award, and the date and place of its issuance; and
• the reasoning, wherever its inclusion is required.

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The agreement of the parties may impose a period within which the arbitral tribunal must make its award to ensure that the case is dealt with efficiently. In the absence of such an agreement, the award that finally disposes of the entire dispute must be rendered within 12 months of the date of commencement of the arbitral proceedings. In all cases, the arbitral tribunal may decide to extend the deadline, provided that the period of extension does not exceed six months, unless the parties agree on a longer period.

If the arbitral award is not rendered within the 12-month period, the parties to arbitration may request the president of the competent court to issue an order either extending the time limit or terminating the arbitral proceedings. In the latter case, a party may bring the dispute to the court having initial jurisdiction to adjudicate the case.

The Court of Cassation has decided that the arbitral proceedings governed by UNCITRAL or CRCICA rules are not bound by a time limit for rendering the final award.

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The Arbitration Law requires that the action for setting aside shall be brought within 90 days following the notification of the final arbitral award to the losing party.

Moreover, article 49 of the Arbitration Law entitles parties to the arbitration, within 30 days after the receipt of the award, to request the arbitral tribunal to elucidate any ambiguity appearing in the dispositive part of the award.

Furthermore, article 50 entitles the arbitral tribunal to correct any material mistake in the award within 30 days following the issuance of the award or the submission of a request for correction, as the case may be.

Finally, article 51 entitles the parties to request the arbitral tribunal, within 30 days from receiving the award, to issue an additional award on a claim submitted in the course of the proceedings and overlooked by the arbitral award.

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The arbitral tribunal may issue:

• final awards, disposing of the entire dispute;
• interpretation and correction of awards, upon the request of either parties (the clarification or correction shall be made in writing);
• additional awards, on a claim submitted in the course of the proceedings and overlooked by the arbitral award;
• interim awards, determining matters that may save considerable time and money; and
• partial awards, disposing of one or more monetary or other substantive issues between parties.

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If the parties agree on a settlement that terminates the dispute during the arbitral proceedings, they may request that the terms of the settlement be recorded by the arbitral tribunal and the tribunal will pass a decision containing the agreed terms and terminate the proceedings. Such an award will have the same effect with regard to enforcement as all other arbitral awards.

Arbitral proceedings are terminated by either the making of the award ending the dispute or by a court’s decision ordering the closing of the arbitral proceedings where the time limit for rendering the final award has been exceeded.

Arbitral proceedings can also be terminated by a decision of the tribunal in the following cases:

• the parties agree, during the arbitral proceedings, on a settlement ending the dispute;
• the claimant withdraws its claim, unless the arbitral tribunal decides, based on the objection of the respondent, that the latter has a legitimate interest in continuing the arbitral proceedings until the dispute is settled by a final award; or
• for any other reason, the arbitral tribunal considers that the continuation of the proceedings has become futile or impossible.

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Costs include the tribunal’s fees, counsel’s fees and the administrative fees of the arbitration centre, if any. The arbitral tribunal shall fix the costs of arbitration in the final award.

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Interest is 4 per cent per annum in civil matters and 5 per cent per annum in commercial matters. However, the parties may agree upon another rate of interest either in the event of delay in effecting payment or in any other case in which interest has been stipulated, provided that it does not exceed 7 per cent. A creditor may demand damages in addition to interest if he or she establishes that a loss, in excess of the interest, was owing to bad faith on the part of the debtor.

According to article 50(3) of the Commercial Code, in the case of commercial loans or cost incurred by a merchant in favour of its customer, the merchant may claim interest at the rate applicable by the Central Bank. Such rate is currently 11.75 per cent per annum.

Finally, interest on banking loans and transactions with bank customers are determined by virtue of party autonomy without being subject to any maximum statutory rate.

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A party to the arbitration may request the arbitral tribunal, within the 30 days following the reception of the arbitral award, to give an interpretation clarifying any ambiguity that appears in the dispositive part of the award. The party requesting clarification must notify the other party of the request before presenting it to the tribunal.

The interpretation decision must be made in writing within the 30 days following the receipt of the request for clarification by the tribunal. The panel may extend that period by another 30 days if it considers such an extension necessary. The clarificatory award shall be deemed an integral part of the arbitral award and shall be subject to its provisions.

The arbitral tribunal must undertake to correct any exclusively material errors in its award, such as errors in computation, and any clerical or typographical errors, etc. Those corrections will be undertaken by the tribunal on its own initiative or upon request from a party. The tribunal will make the correction without holding any hearing within the 30 days following the communication of the award.

The correction decision shall be rendered in writing by the arbitral tribunal and notified to the parties within 30 days of the date of its issue.

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Arbitral awards rendered in accordance with the provisions of the Arbitration Law may not be challenged by any of the means of recourse provided for in the Code of Civil and Commercial Procedures.

An action for the nullity of the arbitration award may be instituted if:

• there is no arbitration agreement, if it was void, voidable or its duration had elapsed;
• either party to the arbitration agreement was, at the time of conclusion of the arbitration agreement, fully or partially incapacitated according to the law governing his or her legal capacity;
• either party to the arbitration was unable to submit a defence as a result of not being duly notified of the appointment of an arbitrator, of the arbitral proceedings or for any other reason beyond his or her control;
• the arbitral award excluded the application of the law agreed upon by the parties to govern the subject matter in dispute;
• the composition of the arbitral tribunal or the appointment of the arbitrators had been undertaken in violation of the law or contrary to the parties’ agreement;
• the arbitral award dealt with matters not falling within the scope of the arbitration agreement or exceeding the limits of this agreement; or
• the arbitral award or the arbitration proceedings affecting the award are null and void.

The court adjudicating the action for nullity shall ipso jure annul the arbitral award if it contains a violation of public policy.

The action for nullity of the arbitral award must be brought before the competent court within 90 days following the date of notification of the arbitral award to the party against which it was rendered.

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An arbitral award cannot be subject to an appeal; however, the decision of the court on the nullity proceedings may be challenged before the Court of Cassation.

The necessary cost of the execution and challenge of arbitral awards is regulated by the Judicial Fees Law No. 90, 1944 (JFL), in addition to unpublished internal regulations.

Pursuant to said Law, the cost of an annulment action, including judicial fees as well as other taxes, shall not exceed 150 Egyptian pounds.

To the contrary, the cost of enforcement of an arbitral award is significantly higher since the applicable judicial fees are in proportion to the amounts awarded. Such judicial fees are mainly the ‘proportional fees’, amounting to 1.25 per cent of the amounts awarded (articles 1 and 6 JFL), and the ‘service fees’, estimated as half as the proportional fees, in addition to other fees. In summary, the applicable judicial fees on enforcement proceedings are approximately equivalent to 2.5 per cent of the amounts awarded.

The cost is determined and apportioned among the parties by the competent court in its judgment.

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Arbitral awards issued according to the Arbitration Law have authority of res judicata and are enforceable by the president of the court competent of the dispute. The application for enforcement of the arbitral award shall be accompanied by:

• the original award or a signed copy;
• a copy of the arbitration agreement;
• an Arabic translation of the award if it is not issued in Arabic; and
• a copy of the procés-verbal attesting the deposit of the award.

The president of the court issues his or her decision without hearings.

However, enforcement may be refused for three reasons:

• contradiction with a judgment previously rendered by the courts on the subject matter of dispute;
• violation of public policy in Egypt; or
• non-communication with the party against whom it was rendered.

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No reference is made in this regard in the Arbitration law nor, to the best of the author’s knowledge, in Egyptian jurisprudence.

Civil prescription applies pursuant to article 374 of the Civil Code, which provides the following: ‘The term of prescription for obligations is fifteen years with the exception of those cases for which a special provision is contained in the law’.

The aforementioned article provides for a general prescription of 15 years. As an arbitral award gives a party the right to opt for the enforcement of the award, it only stands to reason that this right to enforce is subject to civil prescription by nature.

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There are no precedents as to the position of Egyptian courts regarding the enforcement of a foreign arbitral award that has been set aside by the courts at the place of arbitration.

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No.

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Court fees are around 2.5 per cent of the amount decided by the arbitral award.

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Egyptian law does not recognise US-style discovery. However, articles 20-22 and 27 of the Evidence Law regulate production of documents on condition of specificity, materiality and relevance.

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No, only the provisions of the attorneys’ Law No. 17/1983 apply.

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Third-party funding (TPF) of arbitral claims is not regulated under Egyptian law. Further, there are no regulatory restrictions specific to TPF. Indeed, TPF has already happened in practice and its relevant agreement is valid insofar as it does not violate any mandatory rule of Egyptian law.

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Dissenting from the provisions of Law No. 17/1983, Egyptian jurisprudence has authorised foreign counsels to represent parties in institutional arbitration.

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Legislative reform and investment treaty arbitration

57 Are there any emerging trends or hot topics in arbitration in your country? Is the arbitration law of your jurisdiction currently the subject of legislative reform? Are the rules of the domestic arbitration institutions mentioned above currently being revised? Have any bilateral investment treaties recently been terminated? If so, which ones? Is there any intention to terminate any of these bilateral investment treaties? If so, which ones? What are the main recent decisions in the field of international investment arbitration to which your country was a party? Are there any pending investment arbitration cases in which the country you are reporting about is a party?

See https://www.lexology.com/gtdt.

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