EGYPT Law and Practice Contributed by: Samer Badran, Abdelrahman Mahdy, Maya Khairy and Mazen Sayed, Badran Law Firm
Notable divergences from the UNCITRAL Model Law include a broader scope of “international” arbitration, as Article 3 of the EAL treats an arbitration as inter - national if the parties have agreed to refer their dis - pute to an arbitral institution or arbitration centre in Egypt or abroad, regardless of the parties’ places of business. The EAL also reflects Egypt’s distinct treat - ment of public-entity contracts by requiring arbitration agreements in administrative contracts to be signed by the competent minister, without giving the minister the right of delegation. 2.2 Changes to National Law The EAL has not been substantially reformed since its enactment. However, it has witnessed two amend - ments. The first was incorporated into Article 1 by virtue of Law No. 9 of 1997, concerning the ministeri - al-approval requirement for arbitration agreements in administrative contracts. Law No. 8 of 2000 changed the procedure for chal - lenging arbitrators, which is addressed under Article 19 of the EAL. Under the original rule, if the chal - lenged arbitrator does not resign within 15 days of the challenge, the arbitral tribunal itself decides on the challenge, and its decision is final and may not be appealed. Under the amended rule, if the arbitrator does not resign within 15 days of the challenge, this triggers referral to the competent court under Article 9 of the EAL, which alone decides on the challenge by a final ruling that may not be appealed. Despite the fact that a committee has been formed of arbitration practitioners to propose legal reform, at time of writing, the committee has not yet finished its work and has issued no proposals.
to the consent of the persons who have the right to dispose of the rights covered by the arbitration agree - ment. In the case of a submission agreement, Article 10 of the EAL requires the parties to determine in narrow details the exact matter of the dispute covered by the agreement. The same article provides that an arbitra - tion agreement by reference requires the reference to be clear. 3.2 Arbitrability As a general rule, if a court has jurisdiction to rule on one or more subject matters, and if this jurisdiction is based on a public-policy rule, such subject matters cannot be referred to arbitration (subject matters fall - ing within the exclusive jurisdiction of state courts). These include matters of personal status (a person’s capacity, guardianship, filiation, custody, divorce or the validity of their marriage), bankruptcy proceed - ings, constitutionality review of the laws, legality of regulations and administrative acts, ownership or pos - session of public funds, tax disputes and any criminal matters. The general approach to arbitrability is governed by Article 11 of the EAL and rests essentially on the pos - sibility of the dispute being subject to settlement. 3.3 National Courts’ Approach National courts refer to party autonomy whenever party consent determines the law governing the arbi - tration agreement. If not, courts will take a lex causae approach and adopt the law most closely connected to the dispute. Concerning the enforcement of the arbitration agree - ment, national courts usually show no reluctance to enforce a valid arbitration agreement and will find the dispute inadmissible before them whenever one of the parties, according to Article 13 of the EAL, requests referral to arbitration before presenting any other defence in the case. 3.4 Validity As a rule, an arbitration clause forms an independ - ent agreement from the one that contains the arbitra - tion clause. This is provided for in Article 23 of both
3. The Arbitration Agreement 3.1 Enforceability
Irrespective of the validity of the contract, the arbitra - tion agreement needs to be valid in itself. Its valid - ity is examined based on the formal and substan- tive conditions. Formal conditions require arbitration agreements to be written, even if electronically. Sub - stantively, the arbitration agreement must not refer to non-arbitrable subject matters and must be subject
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