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Overview (August 2010) - International Law Office

International Law Office

Litigation - Egypt

Overview (August 2010)

August 10 2010

Introduction
Limitation periods for bringing claims
Structure of courts that hear large commercial disputes
Rights of lawyers in commercial disputes cases
Legal fee structures
Court proceedings
Interim remedies
Final remedies
Evidence
Third-party experts
Appeals
Costs
Enforcement
Cross-border litigation


Introduction

The modern Egyptian legal system was developed in the 19th century. It was initially modelled on the French Civil Code system, but later developed its own legal principles and structures. The system has greatly influenced the legal systems of many other Middle Eastern countries, and many civil codes of other Arab countries are closely modelled on the Egyptian Civil Code. Egyptian jurists are also influential in most Arab countries. The Egyptian legal system, similar to most continental civil code systems, is based on a civil code that covers personal rights, the law of contracts, obligations and elements of tort law.

In addition, there are specific codes dealing with other areas of law, such as the Commercial Code, which complements the Civil Code in certain areas of commercial law, and the Code of Civil Procedure. These codes refer mainly to private law, but there is also a concept of public law, dealing with administrative legal matters relating to the functions and legal relations of state bodies, whether between themselves or with private persons.

Large commercial disputes tend to be settled through arbitration following implementation of the Arbitration Law (27/1994). However, the settlement of large commercial disputes using court litigation remains common.

Limitation periods for bringing claims

Various limitation periods apply to bringing a claim - for example:

  • for disputes relating to commercial agency, an agent must start an action within 90 days for claims arising from invalid termination;
  • disputes relating to sellers' warranties on hidden defects require an action within one year of delivery;
  • in construction contracts, the employer must start an action based on decennial liability (ie, the contractor remains liable for 10 years following the construction's completion) within three years of the defect or collapse occurring;
  • various periods apply to actions on commercial instruments (eg, cheques, bills of exchange and promissory notes); and
  • tort liability is generally subject to a three-year limitation period, from the date of knowledge of the damage and the identity of the person responsible for it.

Structure of courts that hear large commercial disputes

Large commercial disputes in civil and commercial matters are heard by the First Instance Full Court and appeals are heard by the Court of Appeal. The branches of the First Instance Full Court and Court of Appeal used are those with local jurisdiction depending on where the defendant is domiciled (eg, Cairo, Giza and Alexandria). Further appeals can be made before the Court of Cassation. In 2008 special economic courts were set up to expedite litigation in commercial disputes (Law 120/2008). These courts became active towards the end of 2008 and early indications are quite positive.

Commercial disputes arising from administrative contracts (ie, contracts concluded with governmental authorities relating to public works) are heard at first instance before the Administrative Court (equivalent to the Court of Appeal in the civil and commercial jurisdictions) and appeals are heard by the High Administrative Court (equivalent to the Court of Cassation). Conflicts in jurisdiction and contradictory judgments (between the civil and commercial court system and the administrative court system) are resolved by the Constitutional Court.

Rights of lawyers in commercial disputes cases

Egyptian lawyers are progressively licensed to attend before various levels of court, from the Small Claims Court up to the First Instance Full Court, the Court of Appeal and finally the Court of Cassation. It takes a lawyer at least 17 years from being registered as a trainee to progress to the level of Court of Cassation. With the exception of lawyers from Arabic-speaking countries who are registered with the Lawyers Syndicate, foreign lawyers cannot conduct cases in Egyptian courts.

Legal fee structures

The legal fee structures are flexible. Lawyers can charge by the hour or by the case, and can ask for contingency or success fees. Contingency fees are not regulated and are usually charged as a fixed percentage of the damages recovered or as a fixed pre-agreed success fee.

The parties usually directly fund their litigation. It is very rare for third parties to fund litigation.

Insurance for litigation costs is not common. Insurance against liability entitles the insurers through full subrogation (ie, an insurance company seeks reimbursement from another company or person for a claim it has already paid) to defend against the claims. Similarly, insurance against damages entitles the insurers through subrogation to recover from the party responsible for the damage.

Court proceedings

Court proceedings are public. However, only the parties and their lawyers can access court files.

Courts do not impose any rules on the parties in relation to pre-action conduct. However, abuse of judicial process (eg, bringing a claim without good reason) can be grounds for a compensation claim.

Starting proceedings
In contractual or commercial claims, the claimant (using a court process server) must serve notice on the defendant, giving it an opportunity to comply with the claim (usually within one week).

Notice to the defendant
If the defendant does not comply within the time given in the notice, the claimant can start an action by registering a statement of claim with the court clerk. A court process server then serves the statement on the defendant.

If the defendant is abroad (not domiciled in Egypt), service is through diplomatic channels and is effected by submitting notice to the public prosecutor.

Subsequent stages
After the defendant receives the statement of claim, the case progresses with adjournments to allow the parties to submit their arguments (mainly through written memoranda and dockets of documents). There is no requirement that the defendant file a defence on receiving a statement of claim. The process of submitting a defence is regulated by court hearings, during which the judge invites the defendant to submit its statement of defence.

Oral pleadings are generally quite brief before the First Instance Full Court and Court of Appeal (a few minutes at most). For appeals to the Court of Cassation, the parties have greater flexibility for oral pleadings. Adjournments range from a few weeks to three months. The court usually refers all accounting and technical issues to an expert or a panel of experts - typically, Ministry of Justice employees.

First instance proceedings usually take two to three years, and appeals a further one to two years. Appeals are effectively new trials (ie, all issues of fact can be reconsidered, although no new claims are allowed). Appeals before the Court of Cassation take much longer, unless a stop execution request is made (to stop execution of a Court of Appeal decision), which is generally heard within a few months to one year.

Interim remedies

Actions for dismissal of a case before full trial
Summary judgment for dismissal is very rare and available only if the claimant fails to submit any evidence. If the claimant fails to attend any hearing, in practice, the case is struck out, but it can be renewed within 60 days. If the case is struck out again, it cannot be renewed and the proceedings are deemed to be null from the beginning. This can have serious consequences when limitation periods apply, as the right of claim may be lost.

Claimant's provision of security
Security for costs is not available, except when an injunction or interim order is requested.

Availability of interim measures
Interim attachment orders are available (against appropriate security), but very rarely granted.

Interim remedies can be obtained without notice to the defendant and on the same day in urgent matters, but again are very rarely granted.

Mandatory interim injunctions to compel a party to do something are available in addition to restraining injunctions.

Interim attachment orders
Interim attachment orders are very rarely granted, and the applicant must establish a risk of not finding assets to satisfy a prima facie favourable judgment.

They can be obtained ex parte and on an urgent basis. The main proceedings do not have to be in the same jurisdiction.

The attachment creates a preferential right in favour of the claimant. If the claimant loses its main proceedings for the claim, it will be liable to compensate the defendant. Posting security may be requested by the court as a condition of granting the attachment.

Injunctions
Injunctions and other interim orders may be granted (against appropriate security), but are rarely granted because they are difficult to obtain.

Both mandatory and restraining injunctions are available.

Final remedies

At the full trial stage, all remedies are available, including:

  • monetary compensation;
  • specific performance; and
  • declarations.

In most cases, if an appeal is lodged, only the Court of Appeal decision can be executed despite any appeal to the Court of Cassation (unless a stop execution order is requested, which may take up to one year). Damages are generally compensatory, but the court may, in rare cases, impose penalties that would apply in case of non-compliance with court orders.

Evidence

Disclosure
Discovery in the common law sense is not available. However, any party can ask the court to order disclosure of a specific document. The document must be identified in detail and the requested party must make clear that it is material and relevant.

Privileged documents
Privilege is not recognised in Egyptian law. General discovery is not allowed and the parties cannot go on 'fishing expeditions'. Internal confidential documents are, therefore, protected to a certain extent, because the opposite party simply is unable to access these documents.

Other non-disclosure situations
Confidential documents between a party and a third party are not ordered for disclosure unless they are shown to be material and relevant.

Witnesses of fact
Witnesses of fact must appear in court and are generally questioned by the court, although both parties' counsel can also ask some questions (although not to the extent of examination-in-chief and cross-examination).

Third-party experts

Appointment procedure
Experts are appointed by the court at its own discretion, or at the request of a party. However, parties can also submit expert evidence. Court-appointed experts are normally appointed from a roster of experts at the Ministry of Justice, although in certain cases, where special expertise is required, experts may be appointed from universities and other institutions.

Role of experts
Experts appointed by the court are independent of the parties and answer to the court. However, when a party submits its own expert evidence, the experts can represent the interests of that party.

Right of reply
Experts' findings of fact and reports can be challenged, and the court can refer issues back to the same experts or can reassign them to different experts. However, the parties do not have a direct right to cross-examine the experts.

Fees
Expert fees for referral requested by a party are usually paid by the requesting party (the court determines this in its preliminary judgment appointing the expert). Fees for experts appointed at the court's initiative must usually be divided equally between the parties. If a party fails to make the payment, the other party can make the full payment after first obtaining the court's permission.

Appeals

First instance decisions may be appealed to the Court of Appeal within 40 days of the first instance judgment, and 15 days in the case of appeal in summary proceedings. Appeals to the Court of Appeal can be based on alleged errors of fact or law. Further, appeals to the Court of Cassation are possible based on alleged errors of law (the incorrect application of law or inadequate reasoning). A party has 60 days from the Court of Appeal's decision to register an appeal with the Court of Cassation.

Costs

The unsuccessful party is liable to pay court fees and costs. The court fees may be substantial and are determined as a percentage of the final award. Payment of costs is enforced by the court against the unsuccessful party. In 2009 the Ministry of Justice increased court costs to prevent frivolous proceedings. Legal costs awarded to the successful party are nominal (nearly negligible) and are enforced as part of the award. Interest may apply to costs if the party against which costs are awarded fails to pay or object within the specified period. The interest rate is 4% (Civil Code).

Enforcement

Proceedings for enforcing a local judgment in the local courts start with a writ of execution that is obtained from the execution judge; the judgment is enforced through court bailiffs. Numerous methods are available to delay execution, including a contestation case (which temporarily stops execution for a few months) and third-party recovery claims in relation to secured assets. Delays can be up to one year or more in some cases.

Cross-border litigation

Local courts respect and apply valid choice of law provisions. However, mandatory rules of Egyptian law (part of public policy) cannot be contracted out of, even if a foreign law is chosen. For example, the right of a commercial agent to receive compensation for unjustified termination or non-renewal of the agency cannot be derogated from, and only Egyptian law applies to technology transfer agreements.

Egyptian courts have mandatory jurisdiction in all claims against Egyptians and foreign persons domiciled in Egypt (except for those relating to real property abroad). Egyptian courts have jurisdiction in claims against foreign persons not domiciled in Egypt in certain defined cases, including claims relating to assets in Egypt, or obligations that arose or were to be implemented in Egypt.

A number of bilateral treaties between Egypt and specific countries (eg, France) and multilateral treaties (eg, the Arab League) relate to judicial enforcement. Generally, even without a treaty, foreign proceedings and documents can be validly served by notice served through a court process server. Egypt is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965.

Generally, sworn statements can be made by a witness in Egypt before a notary public (a governmental official with authority to certify statements and contracts). Whether the sworn statements are admissible in foreign proceedings depends on the courts in the foreign jurisdiction. In practice, swearing statements before a consular office at the embassy of the country where the case is being heard is accepted.

Egypt is a party to several bilateral and multilateral treaties for the mutual enforcement of judicial awards. Egypt is also a party to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention). Generally, for a judgment to be enforceable in another jurisdiction, these treaties require valid jurisdiction by the court issuing the award and reciprocity.

For further information on this topic please contact Khaled El Shalakany at Shalakany Law Office by telephone (+202 2728 8888), fax (+202 2737 0661) or email (kshalakany@shalakany.com).


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