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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Arab Republic of Egypt.
2. Date of entry into force of the New York Convention
8 June 1959. Egypt acceded to the Convention by Presidential Decree No. 171/1959 dated 3 Feb. 1959. Publication in the official gazette was authorized by decree of the Minister of Foreign Affairs dated 14 Apr. 1959.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
This is an area of the law rendered unnecessarily complex by an arguably unfortunate 2005 decision by the Court of Cassation, the highest appellate court, in which the Court held that foreign awards are enforceable under the country's principal statutory instrument on arbitration-the Law on Arbitration in Civil & Commercial Matters, No. 27/1994 ('Arbitration Law').
Critics, however, argue convincingly that the Arbitration Law is limited ratione materiae to arbitrations conducted in Egypt and therefore regulates the enforcement of Egyptian awards only, but is otherwise silent on the recognition and enforcement of foreign awards, a subject matter which they point out is exhaustively treated by the Code of Civil & Commercial Procedure promulgated by Law 13/1968 (Art. 296 to 301) ('CCP').
In its 2005 decision, the Court of Cassation held that, because the Arbitration Law prescribes an enforcement mechanism materially less onerous than that contemplated by the CCP, namely an ex parte application to a judge in chambers (ordonnance sur requête), Art. VII of the Convention (on more favourable national enforcement standards) mandates enforcement of foreign awards pursuant to the Arbitration Law.
Critics, however, argue that the decision confuses conditions laid down by the CCP for enforcing foreign awards, which they argue are no more onerous than those prescribed by the Arbitration Law, with the procedure it prescribes, namely an action begun by writ of summons (demande initiale par voie ordinaire), which, whilst perhaps less streamlined, is not inconsistent with Egypt's obligations under Art. VII of the Convention. More forcefully, they point out that the Arbitration Law's silence on many of the issues relevant to enforcement of foreign awards means that lower courts will continue to look to the CCP for answers, which, they caution, does not make for legal certainty, and in fact risks producing an enforcement regime so uncertain that it might violate Egypt's obligations under the Convention.
For as long as the Court of Cassation's 2005 decision remains good law, however, the answers below must assume that foreign awards are potentially enforceable under the Arbitration Law. Where the Arbitration Law is silent, these answers will seek guidance in the CCP. However, as a result of the uncertainty created by the Court's 2005 decision, only tentative answers can be provided to many of the questions below.
On the other hand, it is important to keep in mind that the fact that foreign awards may be enforced under the Arbitration Law does not mean that they cannot be enforced under the CCP if the claimant so elects. When, therefore, the answers to the questions below would differ materially depending on the enforcement mechanism to be adopted, additional answers are provided for enforcement under the CCP.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
For commercial awards, the limitation period is 10 years. For all other awards, the period is 15 years. Both periods run from the date of the award.
(Sources: Commercial Code, § 68; Civil Code, § 385-2.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Under the Arbitration Law, the Cairo Court of Appeal (or any other court of appeal that the parties expressly agree should have jurisdiction) has jurisdiction over recognition and enforcement of foreign awards.
(Source: Arbitration Law, §§ 56 and 9.)
Under the CCP, the court of first instance in whose jurisdiction enforcement is sought has jurisdiction.
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The Arbitration Law does not lay down any jurisdictional requirements.
Under the CCP, the award creditor must show that the respondent has assets within the territorial jurisdiction of the court in which enforcement is sought.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The Court of Cassation's 2005 decision has created anomalous practices (although this originates in the Arbitration Law itself, and applies as much to foreign awards as to local ones). On the one hand, the application for enforcement is made ex parte to a judge in chambers (par ordonnance sur requête); on the other, somewhat inconsistently, the applicant is required to serve notice on the respondent, who must then show cause, within such time limit as a judge in chambers might impose (typically 2 weeks), why enforcement should be denied. The application is decided on documents only.
Enforcement under the CCP is by originating summons, with a full hearing.
(Source: CCP, § 297.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Under the Arbitration Law, both these decisions are reviewable: within 30 days, if enforcement is denied; and within either 10 or, more likely, 30 days, if exequatur is granted. The uncertainty in the latter case is the product of the history of the provision in question. Originally, decisions granting exequatur were final, whilst those denying enforcement were reviewable within 30 days. The Constitutional Court, however, declared the discrepancy unconstitutional (on equal protection grounds), with the result that both types of decisions are now reviewable. What the Court did not (and was not required to) explain, however, is whether the same time limit applies in each case. The better view is that it does, on equal protection grounds. There are those, however, who argue that, absent contrary provision, the default 10-day time-limit applies to decisions denying enforcement.
Under the CCP, the court's decision granting or denying enforcement is subject to appeal like any other.
(Sources: Arbitration Law, § 58(3); CCP, §§ 217 and 248.)
(b) How many levels of appeal or recourse are available against this decision?
This is one area where applying the Arbitration Law to foreign awards can be especially problematic. Under the Arbitration Law, that decision is subject to an appeal (objection) before the court which would have had jurisdiction over the subject of the dispute if there had not been an agreement to arbitration. In the case of a foreign award, this might well be a foreign court. Absent an express choice by the parties of another court of appeal, appeal in this case would arguably be taken before the Cairo Court of Appeal.
(Source: Arbitration Law, § 58(3).)
Under the CCP, an appeal would lie with the court of appeal having territorial jurisdiction over the court in which the enforcement action was originally brought.
Under both enforcement regimes, a further appeal lies to the Court of Cassation.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Execution against assets must await the decision on exequatur.
Under the Arbitration Law, the court order (ordonnance sur requête) is immediately enforceable; in fact, it must be presented for enforcement within 30 days of being issued.
Under the CCP, it is not entirely clear whether the exequatur is immediately enforceable or, more likely, whether leave of the court is required subject to the provision of security by the claimant, as either an order for enforcement of a res judicata decision or an order rendered in an enforcement dispute).
(Source: CCP, §§ 200, 228, 290(2), 290(5).)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
Under the Arbitration Law, the applicant must produce (i) the award, which, if in a language other than Arabic, must be accompanied by (ii) a certified translation into that language, (iii) a copy of the arbitration agreement, (iv) a copy of a 'deposit certificate' (establishing that the award has been deposited with competent court).
Whilst the CCP does expressly require specific evidence to be supplied for enforcement of foreign awards, requirements (i), (ii), and (iii) above presumably apply.
(Sources: Arbitration Law, § 56; cf. New York Convention, Art. IV.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
Under the Arbitration Law, the complete award must be provided. If the arbitration agreement is a clause in the parties' contract, only that clause need to be provided, although it is standard practice to produce the entire agreement. In the case of a subsequent agreement to arbitrate, the entire agreement must be produced.
The same applies under the CCP.
(c) Are originals or duly certified copies required?
Under the Arbitration Law, either the original or 'a signed copy of the award' (meaning the signed award in copy) is enough. As for the arbitration agreement, a copy is sufficient
(Source: Arbitration Law, § 56.)
(d) How many originals or duly certified copies are required?
One copy of each document.
(e) Does the authority or court keep the originals that are filed?
Yes, except that a party may substitute copies for any original it wishes to retrieve: after judgment is entered and following expiration of the time limit for appealing, as of right; whilst the case is pending, upon leave of the court.
(Source: CCP, § 171(3).)
(a) Is it necessary to provide a translation of the documents supplied?
(Sources: Arbitration Law, § 56; Law on Judicial Authority No. 46/1972 (Judicature Law), § 19; cf. New York Convention, Art. IV.)
(b) If yes, into what language?
(Sources: Arbitration Law, § 56; Judicature Law, § 19.)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
It is necessary for the translation to be certified: in the case of awards, by a reputable translation agency (there is no official system of accreditation). Documents required to be translated in the course of the proceedings are typically translated by the court's official translator.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The complete award, but only the relevant arbitration clause/agreement, should be translated.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Under the Arbitration Law, no, precisely because the legislature did not envisage that the Arbitration Law would apply to foreign awards.
Under the CCP, the court will refuse (rather than stay) enforcement where the foreign award whose enforcement is sought remains subject to judicial review in its country of origin.
(Source: CCP, § 298.3.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Documents filed in legal proceedings for recognition and enforcement of foreign awards are not part of the public record, in the sense that only the parties to those proceedings have access to them. Note, however, that parties who are subsequently joined to those proceedings or intervene in them, become parties to the action, with full access to the documentary record. Note also that anyone may obtain copy of any judgment (as opposed to the documentary record of the relevant case) upon payment of a small fee. (Source: CCP, § 180.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Under the Arbitration Law, applications for recognition and enforcement are decided on documents only, by a judge in chambers. Appeals from the decision are heard in open court, and hearings are generally public, subject to the court's power, sua sponte or upon motion, to order hearings held in camera where the interest of the public or moral considerations so dictate. However, it is difficult to envisage situations in which this exceptional power might be used to protect the confidentiality of an arbitral award.
(Source: CCP, § 101.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Except for decisions of the Court of Cassation, which are published unsanitized, neither orders nor judgments are published. Anyone may obtain a copy of any judgment upon payment of a small fee.
(Source: CCP, § 180.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The Arbitration Law expressly recognizes the power of arbitral tribunals to issue interim and partial awards and, whilst it does not expressly address their enforcement, they are presumably enforceable like any other. The same applies in the case of the CCP. This Country Rapporteur is unaware of any instance where enforcement of either an interim or a partial award has been sought to date.
(Source: Arbitration Law, § 42.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Under general principles, courts in Egypt enforce both monetary and non-monetary foreign awards (and judgments), provided, in the latter case, that ordinary jurisdictional requirements are satisfied, e.g. the property to be delivered up is within the jurisdiction of the court.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
There is nothing to preclude courts from enforcing only part of the relief granted if that part, taken independently, satisfies the requirements of enforcement generally.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
The Arbitration Law (which was not intended to apply to foreign awards) does not address this question specifically. However, judging from the position taken in the CCP, where foreign awards are enforceable only when final under the law of their country of origin, it would appear highly unlikely that a party could obtain enforcement of a foreign award that has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Enforcement of monetary awards (and monetary judgments in general) is subject to enforcement fees calculated on an ad valorem basis, which, depending on the sums at issue, can result in significant sums being payable by the claimant/applicant, but recoverable from the defendant immediately upon enforcement of the award.
Another consideration is the posting of security, which is required in the context of the CCP enforcement regime where an award creditor seeks leave of court to proceed immediately to enforcement without awaiting the decision on appeal.
The obligation to identify assets is also relevant in the context of enforcement under the CCP, where jurisdiction depends on the location of the assets.
Statutory law does not specifically address the recognition (as opposed to enforcement) of foreign awards, and this omission has given rise to the argument that foreign awards cannot be recognized in Egypt. The better view, however, is that they can, in two ways: (i) by going through the same process as for enforcement, but with no intention of compelling any action, as in the case of declaratory awards; or (ii) by introducing them into the record in pending litigation and asking the court to take judicial note of their content, as in a defence of res judicata.
Ahmed S. El Kosheri