EGYPT Law and Practice Contributed by: Ahmed Kotb, Mohamed Ehab, Mohamed Sameh and Yasmine ElSakka, Khodeir & Partners
According to Egyptian scholars, impartiality refers to the absence of bias on the part of the arbitrator either against or in favour of one of the parties. Lack of impartiality is a psychological state influenced by emotion, stemming from personal interest, affection or hostility towards one of the parties, while independ - ence refers to the arbitrator being in a position such that his/her opinion is not influenced by any relation - ship with either of the parties, whether a financial, social or professional relationship, and whether past or present. The principle of Kompetenz-Kompetenz is applicable in Egypt. According to Article 22 of the EAL, an arbi - tral tribunal has the authority to decide on challenges against its own jurisdiction, whether based on the absence of an arbitration agreement, the extinction or nullity of the agreement, or the dispute going beyond the scope of the arbitration agreement. 5.2 Circumstances for Court Intervention National courts are precluded from addressing issues concerning the jurisdiction of an arbitral tribunal once arbitration proceedings have commenced. Indeed, according to Article 13 of the EAL, national courts are under the obligation to render a case filed by one party inadmissible upon the request of the other party on the basis of the existence of an arbitration agreement. However, if a litigation case is filed before a national court and the arbitration agreement is subsequently found to be prima facie null and void – or if the parties have opted out of arbitration and fail to timely chal - lenge the court’s jurisdiction before addressing the merits (per Article 13 of EAL) – the court may assume A party may rely on the challenge of the tribunal’s jurisdiction advanced by it before the national courts as a ground for annulling the award rendered by the tribunal (Article 53 of the EAL) within 90 days from the notification of the arbitral award (Article 54 of the EAL), provided that it raised a timely objection to the tribu - 5. Jurisdiction 5.1 Challenges to Jurisdiction jurisdiction over the dispute. 5.3 Timing of Challenge
nal’s jurisdiction during the arbitration. A party that accepted the tribunal’s jurisdiction during the arbitra - tion proceedings cannot later rely on the lack of juris - diction of the tribunal as a ground during annulment proceedings after the final award has been issued. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility National courts, upon a party’s request, must conduct a prima facie review to determine whether a valid arbi - tration agreement exists within the contract subject to the dispute. If the agreement is not clearly null, void or inoperative, the court must declare its own lack of jurisdiction without proceeding to a detailed examina - tion. 5.5 Breach of Arbitration Agreement If a party brings court proceedings in breach of a val - id arbitration agreement, the court must, contingent upon one of the parties’ timely objection (ie, before any discussions on the merits) and a prima facie find - ing of the validity of the arbitration agreement, ren - der the party’s action inadmissible, as per Article 13 of the EAL. Failure to object before addressing the merits will be construed as a waiver of the arbitration agreement and an implicit acceptance of the national court’s jurisdiction, per Article 8 of the EAL. It should be noted that bringing an action before national courts shall not preclude commencing or pursuing arbitral proceedings. 5.6 Jurisdiction Over Third Parties The EAL does not explicitly address the extension of arbitration agreements to non-signatories. The Court of Cassation, however, affirmed in 2018 that such an extension is possible in cases involving a group of companies or a group of contracts, universal suc - cession, mergers or rights assignment (Court of Cas - sation, Civil Chamber, Challenge No. 3299 of JY 86, dated 13 March 2018). This list is not exhaustive. When determining whether an arbitration agreement may be extended to a non-signatory, courts examine whether the non-signatory materially participated in the formation or performance of the contract at the heart of the dispute. In general, extension of an arbi - tration clause to third parties may be based on the following: (1) guarantor bound by main agreement;
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