EGYPT Law and Practice Contributed by: Inji Fathalla, Salma Nasreldine, Haya El Samra and Ismaël Sedky, Shahid Law Firm
However, the parties’ autonomy is subject to two requirements. • The first requirement is that if the parties agree to a tribunal constituted by more than one arbitrator, their number must be odd. If the tribunal is consti- tuted by an even number of arbitrators, the arbitra - tion is considered invalid. While the odd number requirement could be considered a limitation, it is a common rule ensuring that the tribunal can always reach a majority decision. • The second requirement is more of a default rule guaranteeing the progress of the arbitration pro- ceedings. If the parties cannot agree on the con- stitution of the tribunal, the number of arbitrators shall be three. 4.2 Default Procedures In such cases if the parties cannot agree on the con- stitution of the tribunal, the Cairo Court of Appeal or any other court of appeal as agreed by the parties may intervene, applying the general procedures set out in the EAL. In the rare cases of multi-party arbitrations, the EAL does not prescribe a default procedure for the appoint- ment of arbitrators. Egyptian law provides general default procedures for the appointment of arbitrators and the constitution of the tribunal. However, alongside the EAL, the CRCICA (The Cairo Regional Centre for International Commercial Arbitra- tion) Rules provide that in cases involving multiple par- ties, the claimants and the respondents shall jointly appoint an arbitrator. If the parties concerned failed to do so, the CRCICA shall appoint an arbitrator on their behalf. 4.3 Court Intervention Aside from the procedure prescribed under institu- tional rules, under the EAL (Article 17), a court can intervene in the selection of arbitrators. The selection by the court is made in two circumstances. • 1. If the parties do not agree on the procedure or timing for the selection of arbitrators, or if the parties agreed procedure fails, the Cairo Court of Appeal or any other court of appeal agreed upon
by the parties may appoint the arbitrators upon request of either party. • 2. If the two appointed arbitrators by the parties cannot agree on the selection of the presiding arbitrator, the court may, upon request, appoint the presiding arbitrator. The court must observe the requirements of the EAL and any conditions agreed upon by the parties when appointing the arbitrators. In addition, the EAL pro- vides that the court must issue its decision on the appointment promptly. After rendering its decision, it is not subject to appeal. Certain limitations arise under the EAL regarding the court’s power to appoint arbitrators. The first of these is that the intervention of the court is only triggered if the parties fail to agree, breach the agreed upon procedure, or if a third party fails in its role. In addi- tion, the court must respect any legal and contractual requirement for arbitrators’ qualifications set by the law and the parties. 4.4 Challenge and Removal of Arbitrators Article 18 of the EAL finds that an arbitrator may be challenged only if circumstances exist that give rise to serious doubts on his or her impartiality or inde- pendence. The EAL provides that a party to the arbi- tration may challenge the arbitrator appointed by it or in whose appointment it has participated, only for reasons of which it becomes aware after the appoint- ment has been made. If a party wishes to challenge an appointed arbitrator, it needs to file its application within 15 days of becom- ing aware of the circumstances justifying such a chal- lenge. If the challenged arbitrator does not withdraw, the court (of Article 9) can intervene. The IBA (International Bar Association) Guidelines on Conflicts of Interest in International Arbitration are not followed. While the parties are free to choose their application to a dispute, this would be practically futile because national courts are the competent authorities deciding on challenges to arbitrators, and the judges would need to be familiar with the guidelines, which would also need to be translated to Arabic.
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