EGYPT Law and Practice Contributed by: Inji Fathalla, Salma Nasreldine, Haya El Samra and Ismaël Sedky, Shahid Law Firm
6. Third-Party Funding 6.1 Prevalence of Third-Party Funding Egyptian law does not generally regulate third-par- ty funding. Accordingly, there are no restrictions on recourse to such means of funding with respect to investor–state claims, which is commonly used by investors in cases against Egypt. That said, third-party funding was addressed by the Egyptian legislator in the Egypt–Saudi Arabia BIT (2024), which provides in its Article 28 an explicit obligation on parties having recourse to third-party funding to disclose such arrangement, and sets out No rules exist on third-party funding of arbitral claims. There is no law or regulation that specifically regulates third-party funding under Egyptian laws. Hence, it is not prevented. From a practical perspective, the institutional rules applicable to the arbitration prevail. The authors must, however, highlight that third-party funding is not gen- erally practised in Egypt and is still a novel concept. 6.3 Disclosure and Security for Costs Concurrently, the authors are not aware of any impact the existence of third-party funding may have on appli- cations for security for costs, considering that there are no established arbitration or court cases dealing with the practice of third-party funding in Egypt. the consequences of non-disclosure. 6.2 Third-Party Funding Case Law 7. Other Procedural and Evidentiary Issues 7.1 Notice of Dispute and Consultation Period The Ministerial Committee for the Settlement of Investment Contract Disputes, as established by Prime Minister Decree No 2432 of 2015 (as amended subsequently), offers investors an optional amica- ble settlement mechanism for disputes arising from investment contracts involving the state or any of its entities, bodies, or affiliated companies.
Under Article 2 of the aforementioned Decree, there is no explicit mention that parties must submit their dis- putes to this Committee before resorting to arbitration, meaning that recourse to the Committee cannot be deemed as a mandatory pre-arbitration step per se. That being said, in practice, the Committee has proac- tively resolved numerous investment disputes prior to escalation to arbitration, namely with the Netherland’s Future Pipe Industries BV, Italy’s Tecnimont, as well as Egyptian private-sector firms Sonker Bunkering Com- pany and Misr Technology Services. This reflects the government’s direction to settle dis- putes with investors to attract foreign direct invest- ments and ensure an investment-friendly environment in the country. 7.2 Confidentiality and Transparency While Article 44 of the EAL prohibits the publication of arbitral awards unless otherwise agreed by the par- ties, it does not impose a general duty of confidential- ity over the proceedings themselves. That being said, the confidentiality of proceedings in the investor–state context ultimately depends on the provisions of the treaty under which the claim is brought: older BITs (namely, the Egypt–Kuwait 1966 BIT and its 2001 revision) are generally silent on the matter, defaulting to private proceedings, while mod- ern treaties (namely, the Egypt–Saudi Arabia 2024 BIT) and updated rules increasingly require public access to documents, hearings and awards. With that in mind, parties can balance interests of confidentiality and transparency by agreeing on selec- tive publication of awards and/or pleadings, adopting transparency-oriented rules, and/or issuing joint state- ments; allowing for protection of sensitive information all the while ensuring public access to information on disputes involving the public interest.
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