EGYPT Law and Practice Contributed by: Inji Fathalla, Salma Nasreldine, Haya El Samra and Ismaël Sedky, Shahid Law Firm
1.5 Major Arbitrations Considering the previously noted industrial sectors most affected in Egypt in recent years, it is not surpris- ing that investor–state arbitrations have arisen from these areas. One of the most significant cases is Heidelberg v Egypt . In this arbitration, the investor’s allegations focus in particular on anti-competition practices and failure to accord national treatment. However, as this case is still ongoing, its outcome remains uncertain. Another significant case, unrelated to the indus- trial sectors mentioned in 1.4 Key Industries , is the Al Jazeera v Egypt case. In this matter, the investor claimed under the Egypt–Qatar BIT, that Egypt has allegedly placed the local branch of the investor’s company into compulsory liquidation. The case was ultimately resolved by the withdrawal of the investor’s claim against Egypt. A further important case is Tantalum International and Emerge Gaming v Egypt . The arbitration was triggered by the cancellation of licences granted to the investor. Similar to Al Jazeera v Egypt , after negotiations, the investor received a settlement sum. Also worth mentioning is the case of Gesenu v Egypt . The case involved the expropriation of investments made in Egypt by Gesenu, a waste management com- pany. Once again, the case was discontinued as the parties reached a settlement. The last case to highlight is Qatar Airways Group Q.C.S.C. v Egypt in which the investor alleged that Egypt blocked the company’s operations by closing the Egyptian airspace for the investor and revoking its licences to operate. Yet again, the dispute was settled. With the exception of the first case mentioned, which is still ongoing, Egypt shows a pattern of settlement, reflecting a willingness to negotiate in the event of a dispute. While arbitration remains an unavoidable means of dispute resolution, amicable settlement is also an established outcome.
1.6 Reaction to Awards Made Against the State In general terms, Egypt is a member of the New York Convention. Egyptian courts, especially the Cairo Court of Appeal, recognise and enforce arbi- tral awards, including those made against Egypt or its entities. The Egyptian legal system does not grant immunity to state entities or to public officials, who are therefore required to implement and comply with arbitral awards once they have been recognised and enforced in Egypt. More specifically, the provisions of the EAL concern- ing the annulment of arbitral awards (Article 53), is very limited in scope. It sets out an exhaustive list of eight grounds for annulment, such as the incapacity of the parties when entering into the arbitration agree- ment, the tribunal’s failure to apply the law chosen by the parties, or when the award is contrary to Egyptian public policy, among others. In a recent judgment rendered by the Egyptian Court of Cassation, Judge Nabil Omran emphasised that, according to the legislature, the spirit of the annulment regime is precisely to limit the scope of annulment of arbitral awards, and in this respect, the EAL adopts a pro-arbitration stance. While the general rule is to limit the scope of annul- ment grounds, there are rare exceptions. One example is the DIPCO case ( ICC Case No 21341/MCP/DDA/ AYZ ), in which the Egyptian Court of Cassation ruled that since arbitrators are aware of the applicable law, they were required to apply it properly and could not disregard Egyptian public policy. As a result, a mis- application of the law is considered to amount to a violation of Egyptian public policy. 2. Investment Treaties, Free Trade Agreements and Investment Laws 2.1 Bilateral and Multilateral Investment Treaties According to the United Nations Conference on Trade and Development, Egypt is among the top ten sig- natories of BITs worldwide with more than 100 BITs: Albania, Algeria, Argentina, Armenia, Australia, Austria,
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