EGYPT Law and Practice Contributed by: Samer Badran, Abdelrahman Mahdy, Maya Khairy and Mazen Sayed, Badran Law Firm
the EAL and CRCICA’s 2024 Arbitration Rules. The two articles deal with the arbitration agreement as an agreement that is separate from the other terms of the main contract, granting no effect to the invalidity, rescission or termination of the main contract on the arbitration clause it contains, provided that the clause is valid. Bound by the law, national jurisdictions will apply the rule of separability.
The EAL does not regulate the appointment mech - anism in multiparty arbitrations; however, in such a case, the national courts usually treat all claimants as one party, and all defendants as the other. 4.3 Court Intervention Article 17 of the EAL draws the boundaries within which Egyptian courts shall intervene in arbitrator selection: • The intervening court is the one designated by Arti - cle 9 of the EAL, ie, the Cairo Court of Appeal for international commercial arbitration, and the court having original jurisdiction to adjudicate the dispute for any other type of arbitration. • The court shall not intervene unless a party has requested such intervention. • The court intervenes to appoint a sole arbitrator, or the presiding arbitrator where the party-nominated co-arbitrators cannot agree, or otherwise steps in when a party, the co-arbitrators or a third party (including an arbitral institution) fail to perform their role under an agreed procedure. • The court’s decision appointing an arbitrator is final and not subject to appeal, except in the event that the nominated arbitrators are challenged and recused (Articles 18 and 19 of the EAL). 4.4 Challenge and Removal of Arbitrators Article 18 of the EAL allows a challenge only where circumstances raise serious doubts regarding an arbi - trator’s impartiality or independence, or where an arbi - trator lacks the agreed-upon qualifications. This article also states that a party cannot challenge an arbitrator it appointed except upon grounds discovered after such appointment. 4.5 Arbitrator Requirements The EAL does not contain a detailed disclosure code, leaving such matters to be addressed by the insti - tutional procedural rules belonging to the institution before which the parties agreed to settle the dispute, if any. However, Article 16 (3) of the EAL requires written acceptance of the mandate and ongoing disclosure of any circumstances that the arbitrator finds likely to raise doubt regarding their independence or impar - tiality.
4. The Arbitral Tribunal 4.1 Limits on Selection
The EAL grants the parties freedom regarding the choice of arbitrators. However, such freedom is sub - ject to public-policy rules, the violation of which will eventually lead to the annulment of the arbitration award. Such rules include the following: • Article 16 (1) of the EAL states that an arbitra - tor shall not be a minor, under guardianship, or a person who is deprived of civil rights following a conviction for a felony or a misdemeanour (crime of moral turpitude) or declared bankrupt unless rehabilitated. • Article 16 (2) of the EAL stipulates that the arbitral tribunal must be composed of an odd number of arbitrators. Failure to comply with such require - ment will eventually lead to the annulment of the award under Article 53 of the EAL. • Article 16 (3) of the EAL requires written accept - ance by the arbitrator(s), including disclosure of any circumstances that would cast doubt on their independence or impartiality, which acceptance should be done before the mandate begins. 4.2 Default Procedures Article 17 of the EAL provides the default mecha - nism for the appointment of arbitrators. It gives the national court having jurisdiction (according to Article 9 of the EAL) the authority to appoint a sole arbitrator on request. In case of no agreement in tribunals with three arbitrators, each party appoints one arbitrator and the two arbitrators choose the chairperson, with the court intervening if a party fails to appoint an arbi - trator within 30 days, or if the two appointees fail to agree on the third within 30 days of the last appoint - ment.
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