EGYPT Law and Practice Contributed by: Muhammad Ussama and Adam El Shalakany, Shalakany Law Office
non-compliance should not be understood to auto- matically result in a negative inference being made against the non-complying party. In litigation, the scope of document production requests is considerably narrower than that in arbi- tration. This stems from the strict statutory provisions of the Egyptian Law of Evidence. Unless the appli- cant party successfully checks all the boxes that are required under the aforementioned law, courts would refuse to grant the production order. If a production order is granted and the ordered party opts not to comply, a court could fine the latter for non-compli- ance and/or make a negative inference. 8.2 Privilege Privilege is not regulated by virtue of express statu- tory provisions of Egyptian law. As such, the issue of privilege becomes a matter of contract law and stems from the agreement of the parties. Hence, documents cannot be withheld on grounds of privilege if the party in whose favour the production order is issued is not party to the agreement providing for privilege. 8.3 Confidentiality If there exists a statutory provision of Egyptian law that grants the ordering and/or requesting party the right to request disclosure, no right to withhold evi- dence on grounds of confidentiality would exist. 8.4 Witness Evidence Witness evidence is commonly presented in arbitra- tion cases. Disputing parties frequently rely on fact witnesses to support relevant facts that are not heav- ily covered by virtue of written evidence. Arbitral tri- bunals have grown accustomed to the idea of fact witnesses in arbitrations and to the methodology of dealing with such witnesses. It is common practice that fact witnesses first write witness statements that are submitted as factual exhibits along with counsel’s legal submissions, and are then expected to attend the hearing on the merits so that both opposing party and the arbitral tribunal get to address questions they may have to the witnesses. In litigation, witness testimony is frequent in criminal matters as criminal courts have a wider level of discre- tion and are free to build their own conviction based
on the level of confidence that they have in the avail- able evidence (including witness testimony). However, in civil and commercial disputes, witness testimony is rarely used. 8.5 Expert Evidence Expert evidence has become an integral part of any arbitration case that involves technical issues (such as construction disputes, transfer of technology agree- ments, etc). Experts can either be party-appointed or tribunal-appointed. However, it is frequent in practice to see party-appointed experts (as arbitral tribunal rarely opt to exercise their right to appoint experts themselves unless there exists a dire need to do so). Like witnesses, experts owe their duties to the arbitral tribunal and, thus, must always take that into consid- eration when drafting their expert reports and when appearing at hearings before the tribunal and being cross-examined by opposing counsel. The duties of an expert are basically to be truthful and not to delib- erately seek to waste the tribunal’s time. In order to have a foreign judgment recognised and enforced in Egypt, the party benefiting from such recognition and enforcement would have to sub- mit an application to the first instance court within which geographical area of jurisdiction enforcement is sought. The application is submitted to court in the same way that a case writ is filed before court. Prior to accepting such an application, Egyptian courts should ensure that: • Egyptian courts do not have jurisdiction to decide on the same dispute; 9. Enforcement 9.1 Enforcement of Judgments • the foreign court that issued the judgment has jurisdiction to do so pursuant to such court’s laws; • due process has been observed; • the foreign judgment has, pursuant to the laws of the foreign court that issued the ruling, possessed res judicata, and • the foreign judgment does not contain anything that violates or contradicts with Egyptian public order and/or a judgment or order previously issued by an Egyptian court.
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