EGYPT Law and Practice Contributed by: Samer Badran, Abdelrahman Mahdy, Maya Khairy and Mazen Sayed, Badran Law Firm
the IBA Rules on the Taking of Evidence, which, while non-binding, serve as practical guidelines. According to the EAL, there is no discovery or broad disclosure mechanism. Document production is lim - ited to specific, narrow and well-defined requests. While parties are broadly empowered to agree on procedural rules, the tribunal’s power to order docu - ment production is confined to requesting that a party produce a specific document in its possession that is of essence for dispute resolution. Where no party agreement governs evidentiary proce - dure, the tribunal retains residual discretion to conduct proceedings as it deems appropriate, determining the admissibility, relevance and weight of all submitted evidence. As to the forms of evidence, Article 30 of the EAL per - mits parties to attach supporting documents to their statements of claim or defence. Witness testimony is primarily oral, with written state - ments uncommon in ad hoc arbitrations but increas - ingly standard in large international arbitrations. Witnesses do not testify under oath, and cross-exam - ination is permitted, with the tribunal retaining inde - pendent questioning rights. Expert evidence under Article 36 of the EAL takes the form of a written report followed by oral testimony. Notably, the EAL contains no specific rules, leaving such questions to tribunal discretion or party agreement. 8.2 Rules of Evidence The EAL does not establish a standalone evidentiary code. The rules applicable are effectively those gov - erning domestic matters, namely the Egyptian Evi - dence Law, which applies by extension even though it contains no express provisions specifically address - ing arbitration. Regarding court assistance in evidentiary matters, Article 37 of the EAL empowers the tribunal to request the competent court (according to Article 9) to compel witnesses to testify even through applying sanctions under the Egyptian Evidence Law, representing an intersection between arbitral and domestic evidentiary frameworks in Egypt.
While the IBA Rules on the Taking of Evidence are non-binding soft law instruments, they serve nonethe - less as general guidelines in large international arbitra - tions, increasingly filling the gap and offering practical guidance on document production, witness testimony and expert evidence, with tribunals retaining full dis - cretion in their application. 8.3 Powers of Compulsion Article 37 of the EAL empowers tribunals to request the Cairo Court of Appeal to compel witnesses who refuse to attend or respond to do so, through apply - ing sanctions under Articles 78 and 80 of the Egyptian Evidence Law, representing the primary judicial assis - tance mechanism for witness compulsion. Noting that Article 37 of the EAL refers to witnesses, one would suggest that it only calls for non-party attendance. However, should the tribunal require a party’s personal attendance, notwithstanding its legal representation, this attendance would be considered as a witness statement and, hence, Article 37 would apply. Therefore, it is safe to consider that the EAL draws no explicit distinction between party and non- party attendance. In regard to confidentiality, Article 44 of the EAL estab - lishes that arbitral awards may not be published, in whole or in part, without the explicit approval of both parties, forming the primary statutory confidentiality protection under Egyptian law. Regarding pleadings and submissions, the EAL con - tains no express provisions protecting confidentiality. Nonetheless, counsels remain bound by confidential - ity obligations under the Egyptian Advocacy Law (Law No. 17 of 1983, as amended). 9. Confidentiality 9.1 Extent of Confidentiality Confidentiality protections face significant practical limitations. The Jus Mundi Egypt 2023 report confirms that submissions and awards frequently become pub - lic when submitted before courts in set-aside actions or enforcement proceedings, which occurs commonly
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