EGYPT Law and Practice Contributed by: Inji Fathalla, Salma Nasreldine, Haya El Samra and Ismaël Sedky, Shahid Law Firm
The authors should mention that the Egyptian Court of Cassation has rendered its decisions confirming the views of international arbitration best practice (saying that there should be a real threat of bias). 4.5 Arbitrator Requirements The EAL sets a benchmark of requirements for arbi- trators. In particular, Article 16 of the EAL provides that, upon accepting their mandate, arbitrators must disclose any information that could give rise to doubts regarding their independence and impartiality. Similarly, the CRCICA Rules of 2024 provide that with- in a week of their appointment, arbitrators shall dis- close any information that could give rise to any justifi- able doubts as to their independence and impartiality. In addition to the EAL and the CRCICA Rules, it is a well-established practice in arbitrations seated in Egypt for both parties and tribunals to rely on the IBA Guidelines. Article 24 of the EAL provides that both parties to an arbitration may agree to confer upon the arbitral tri- bunal the power to order, upon request of either party, interim or conservatory measures considered neces- sary in respect of the subject matter of the dispute and to require any party to provide appropriate security to cover the costs of the ordered measure. Under the same provision, interim relief granted by arbitral tribunals is binding on the parties. If the party against whom the order was issued fails to comply therewith, the requesting party may be authorised by the arbitral tribunal to undertake enforcement meas- ures against the defaulting party. Further, the provision preserves the requesting party’s right to seek judicial enforcement of the interim measure. 5. Preliminary and Interim Relief 5.1 Types of Relief The types of relief that can be awarded are not exhaustively specified in the provision, leaving the arbitral tribunal with the discretion to award any relief it considers necessary in respect of the subject matter of the dispute. Finally, Article 42 of the EAL grants the
right to the arbitral tribunal to make interim or partial awards before making its final arbitral award, which terminates the entire dispute. 5.2 Role of Domestic Courts Domestic courts play a critical role in both the applica- tion for and enforcement of interim measures granted in investor–state arbitration. At the application phase, Article 14 of the EAL empow- ers the Cairo Court of Appeal to order interim or con- servatory measures prior to the commencement of the arbitral proceedings or during the conduct thereof. In this regard, Article 194 et seq of the Code of Civil and Commercial Procedures (CCCP) allows for ex parte applications and expedited relief. The courts’ involvement at this stage ensures that urgent matters can be addressed even before the arbitral tribunal is constituted or able to act. At the enforcement stage, Article 24 of the EAL rec- ognises judicial enforcement of interim measures granted by arbitral tribunals, empowering the Cairo Court of Appeal to issue an execution order to enforce such measures. Notably, in 2017, Shahid Law Firm successfully obtained an enforcement order from the president of the Cairo Court of Appeal in ex parte proceedings for an interim measure issued by an ICC arbitral tribunal seated in Paris, the first instance of a foreign arbitral interim measure being enforced in Egypt. The Cairo Court of Appeal subsequently upheld this order in adversarial proceedings in 2018, establishing a land- mark precedent for the judicial enforcement of arbitral interim measures in the country. 5.3 Security for Costs Article 24 of the EAL provides that both parties to an arbitration may agree to confer upon the arbitral tri- bunal the power to order, upon request of either party, interim or conservatory measures considered neces- sary in respect of the subject matter of the dispute and to require any party to provide appropriate security to cover the costs of the ordered measure.
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