Arbitration in Egypt is undergoing changes to cope with the novel global developments in international arbitration. These changes mainly feature in the reasoning of court decisions deciding on arbitration related matters and more specifically nullity actions filed against arbitral awards, as well as in contemplated legislative and regulatory amendments. This summary update tackles four principal new developments. Firstly, the amendments to the Supreme Constitutional Court’s Law which vests the Supreme Constitutional Court with new powers to review the constitutionality of (1) decisions rendered by international organisations, and (2) foreign court judgments which enforcement is sought against the Egyptian state in Egypt. Secondly, the closure of an ongoing saga in relation to the setting aside of the famous Kharafi vs. Libya arbitral award, whereby the Egyptian Court of Cassation finally upheld the validity of the arbitral award and dismissed the Libyan state’s nullity action. Thirdly, the judgment of the Egyptian Court of Cassation, which, for the first time in its history, annulled an ICC arbitral award based on Article 53(2) of the Egyptian Arbitration Law. Fourthly, the Covid-19 silver lining as reflected in a 2020 Court of Cassation decision, rendered midst the pandemic, whereby the Court established and affirmed many principles including, the principle of estoppel, party representation in arbitration by foreign and non-lawyers, delocalisation (distinguishing between seat and venue) and explicitly referred to the conduct of virtual hearings.
This Article tackles two main streamlines. Firstly, the legislative updates pertaining to international arbitration within the jurisdiction. These consist in the following: (i) the establishment of a committee to work on a proposal for the amendment of the Egyptian Arbitration Law, within a limited scope of amendments; and (ii) the amendments to Prime Ministerial Decree No. 1062 of 2019 expanding the scope of review of the High Committee for Arbitration and International Disputes, by virtue of Prime Ministerial Decrees No. 2592 of 2020 and No. 3218 of 2022. Secondly, the case law updates where Egyptian courts have addressed various issues proving that the Egyptian judiciary is an arbitration-friendly seat and in alignment with international arbitration trends. Among the cited case law updates, the Egyptian Court of Cassation has expressly cited the IBA Guidelines on Conflicts of Interest in International Arbitration (2014), for the first time ever, when addressing the duty of disclosure of an arbitrator. The Court of Cassation has also set the conditions that require to be fulfilled if an arbitrator abstains from signing the arbitral award and has set definitions for deliberations and dissenting opinions. The Cairo Court of Appeal has considered the arbitrators’ illness of COVID-19 as a force majeure event that interrupts the arbitration proceedings by the force of law and held that WhatsApp instant messaging constitutes a valid means of communication in arbitral proceedings as long as the fundamental principles of arbitration are observed.