EGYPT Law and Practice Contributed by: Samer Badran, Abdelrahman Mahdy, Maya Khairy and Mazen Sayed, Badran Law Firm
6.2 Role of Courts National courts serve both as a primary source of relief and as an enforcement backstop for tribunal-ordered measures. Article 14 of the EAL grants the Cairo Court of Appeal jurisdiction to order interim and conserva - tory measures before or during arbitral proceedings. In parallel, Article 24 allows tribunals to order such measures only upon express party agreement. Where a party fails to comply, the tribunal may authorise the other party to seek a court enforcement order. Unless the enforcement of the interim relief is required on Egyptian territory, Egyptian courts do not extend interim relief to foreign-seated arbitrations. Judicial assistance to foreign-seated arbitration is confined to recognising and enforcing final binding awards under the New York Convention. Available relief includes conservatory measures pro - tecting disputed assets, execution attachments on movable property and bank accounts, evidentiary assistance compelling witnesses under Article 37, and suspension of enforcement pending annulment actions where serious grounds exist under Article 57. While the EAL contains no provisions for emergency arbitrators, the CRCICA Arbitration Rules introduced this mechanism in Article 26 where if the arbitration has not commenced or the arbitral tribunal is not ful - ly constituted, an emergency arbitrator may, at the request of a party, be appointed to determine the requested interim relief. From the beginning, Egyptian courts have shown a high level of recognition towards the emergency arbitrator’s decisions by according enforceability to the first decision issued by the emer - gency arbitrator. 6.3 Security for Costs Under Egyptian law, courts may not order security for costs, as such a requirement is considered unconsti - tutional as it infringes upon the fundamental right of access to litigation. This is largely attributable to the principle of the gratuitousness of judicial protection, which forms part of the constitutional guarantees of access to the courts. By contrast, an arbitral tribunal may order security for costs because arbitration is not subject to the principle of the gratuitousness of judicial protection applicable to state court litigation.
Failure to timely object is treated as an implicit waiver of the arbitration agreement, allowing the court to pro - ceed with the case. Article 13 (2) further provides that the mere filing of such court proceedings does not suspend or bar the arbitration. Hence, the tribunal may commence, con - tinue and render an award regardless of the pend - ing court action. This reflects a clear pro-arbitration stance; Egyptian courts are generally unwilling to allow proceedings to continue once a valid objection is raised. 5.6 Jurisdiction Over Third Parties While the EAL does not expressly govern jurisdic - tion over third parties, the Egyptian Court of Cas - sation’s jurisprudence has confirmed that, in certain circumstances, the effects of an arbitration agreement may extend to non-signatories. Such circumstances include:
• the group of companies doctrine; • the group of contracts doctrine; • succession; • assignment; and
• conduct evidencing a clear intention to be bound, such as active involvement in the negotiation, per - formance or termination of the contract. Such extension applies equally to domestic and for - eign third parties, as Egyptian jurisprudence draws no distinction based on nationality on this issue.
6. Preliminary and Interim Relief 6.1 Types of Relief
According to Article 24 of the EAL, an arbitral tribu - nal may grant binding preliminary or interim relief only where the parties have expressly authorised it to do so. If the party against which such relief is granted fails to comply with the tribunal’s order, the party in whose favour the relief was granted may pursue enforcement procedures to ensure the performance of the interim measure.
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