EGYPT Law and Practice Contributed by: Ahmed Kotb, Mohamed Ehab, Mohamed Sameh and Yasmine ElSakka, Khodeir & Partners
mony is not provided under oath in Egyptian arbitra - tion. Regarding document production, Egypt does not rec - ognise the broad “discovery” practices. Under Article 20 of the Evidence Law, a party may request a docu - ment held by the other party only in limited and excep - tional circumstances, such as when the law explicitly permits it, when the document is jointly held, or when the opposing party relies on that document during proceedings. Article 21 further requires that such requests be precise, specifying the nature, contents, relevance, materiality, and grounds for believing the document is in the possession of the opposing party, as well as the legal basis for ordering its production. 8.2 Rules of Evidence In Egypt, arbitration proceedings generally follow the same rules of evidence as those that apply in domes - tic courts, which are primarily set out in the Evidence Law. Although the law does not specifically address arbitration, tribunals usually refer to these rules when deciding what evidence to accept and how to evaluate it. In practice, parties often look to the IBA Rules on the Taking of Evidence in International Arbitration as a helpful guide, especially during document produc - tion phases (see 8.1 Collection and Submission of Evidence ). However, arbitral tribunals must respect the mandato - ry rules of the applicable evidence law when it comes to the reliability and authenticity of evidence. For example, if the Evidence Law applies, a tribunal can - not rely on a photocopy of a document if the opposing party has formally denied its authenticity or the validity of the signature. This principle was confirmed by the Court of Cassation (Challenges No. 4457, 4463 and 4753 of JY 77, 9 November 2010) and is discussed in scholarly writings, which shows how seriously these evidentiary requirements are taken under Egyptian law. So, while parties and tribunals have flexibility in managing evidence, they still need to ensure that any evidence admitted meets the basic standards of trust - worthiness laid down by the relevant law. 8.3 Powers of Compulsion Arbitral tribunals in Egypt lack the direct enforcement and coercive powers that courts possess. Therefore,
if a party fails to comply with a tribunal’s order with - out a valid reason, the tribunal’s main recourse is to draw adverse inferences, which can impact the party’s case. However, under Article 37 of the EAL, tribunals may request judicial assistance from the competent court. Such assistance includes compelling witnesses to appear if they refuse or fail to attend, and the court may impose fines or penalties on uncooperative wit - nesses in accordance with the Evidence Law. The tribunal may also ask the court to issue a rogatory commission for collecting evidence abroad, allowing foreign courts to assist in the proceedings. This judicial support mechanism helps bridge the enforcement gap faced by arbitral tribunals, though it generally applies only to parties and witnesses directly involved in the arbitration, not to non-parties. Arbitral proceedings in Egypt are generally treated as confidential. Article 44 (2) of the EAL prohibits the publication of arbitral awards, whether in full or in part, without the parties’ consent. There is also an implied duty of confidentiality regarding pleadings, submis - sions and documents exchanged during the arbitra - tion. Confidentiality may be breached when arbitration- related court proceedings are initiated, such as enforcement or annulment actions. Since these court processes are public, relevant information from the arbitration – including parts of the award and submis - sions – may become accessible in the public domain. The explanatory memorandum to the EAL reinforces the importance of confidentiality as a key feature val - ued by parties to protect their commercial relation - ships, but it also implicitly recognises the practical lim - its to confidentiality once judicial intervention occurs. 9. Confidentiality 9.1 Extent of Confidentiality
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