In March 2020, the Egyptian Court of Cassation introduced a novel principle in a case involving the use of electronic evidence. In this respect, the Court ruled that an electronic evidence can only be challenged and dismissed on the grounds of forgery as provided in the Egyptian Evidence Law No. 25/1968 (“Evidence Law”)2.
It is undoubted that the last decades witnessed a remarkable rise in the use of technology in conducting business. Negotiating, executing, and performing contracts became easier, with a simple exchange of emails, video conferences, electronic signatures, or the entry into “e- contracts”.
The use of technology in conducting business and sealing international deals became even more pivotal with the outbreak of Covid-19.
However, the main concern of the parties entering into e-contracts or resorting to electronic writings or documents during the lifetime of a contract, is the extent to which these electronic means guarantee their rights as effectively as traditional written documents. More specifically, parties may be concerned with the evidentiary weight of electronic writings and documents before the Egyptian courts.
Many jurisdictions have already fully regulated the use of electronic evidence and are constantly updating their laws to cope with the everlasting developments in technology fields and the needs of the users thereof. Others are in their way of doing so, like Egypt, who is progressively regulating this matter.
In 2004, the Electronic Signature Law No. 15/2004 (“E-Signature Law”) came into force, introducing and regulating, inter alia, the use of electronic signature.
More importantly, the E-Signature Law provides that electronic writings and documents shall have the same evidentiary weight as any official or private writing, if such electronic writing fulfills the conditions set out in Article 18 thereof3.
These requirements are (i) exclusive link between the electronic signature and the signer; (ii) the exclusive control of the signer over the electronic medium; and (iii) the possibility of uncovering any modification or replacement in the data of the electronic document or electronic signature.
More recently new executive regulations issued by Decree No. 361/2020 (“New Executive Regulations”) came into force and replaced the old one. Article 9 of the New Executive Regulations provides that, in addition to the requirements of Article 18 of the E-Signature Law, a technical control should be fulfilled as per the following requirements:
- The determination of the time and date of creating the electronic writing or the official or non- official electronic document shall be technically available. Such availability shall take place through an independent electronic save system, which is not subject to the control of the creator of that writing or these documents or by a party concerned therewith;
- The determination of the source of creating the electronic writing or the official or non-official electronic document, and the degree of their creator’s control on that source and on the media used in creating them shall be technically available; and
- The conclusiveness of an electronic writing or an official or non-official electronic document created without human intervention, partially or wholly, shall be established once it is possible to ascertain (a) the time and date of creation of the documents and (b) the documents has not been tampered with.
In turn, Article 16 of the E-Signature Law provides that the transcribed copy of the official electronic document, shall be a conclusive evidence to the extent that such transcribed copy is in conformity with the official electronic document and the official electronic document and the electronic signature are existing on the electronic support.
The language of Article 16 is slightly ambiguous, and does not provide much explanation as to when “copies” of electronic documents would have an evidentiary weight. This article seems more applicable to documents with electronic signature, rather than electronic documents in their entirety. Further, the scope of work of the agency developed to aide in the implementation of the E-Signature Law, namely, the Information Technology Industry Development Agency or commonly, known as ITIDA4, may even more underpin this uncertainty.
ITIDA is an entity established by virtue of the E-Signature Law5. Its scope of work encompasses, inter alia, conducting technical inspection of electronic evidence to assess the validity thereof. However, ITIDA, when approached, confirmed that it is only competent to provide such technical inspection with respect to electronic documents that contains an electronic signature.
A legitimate series of questions arises with respect to the fate of electronic documents that are devoid of electronic signature, if submitted as an evidence before the Egyptian Courts. Which is the competent authority to conduct a technical inspection of electronic documents that are devoid of an electronic signature? Does the requirements of the E-Signature Law and the New Executive Regulations apply to electronic documents that are devoid of electronic signature? Can, for example, the exchange of emails be considered an admissible evidence before Egyptian courts? Can the validity of an email be challenged by challenging the validity of the transcribed copy thereof? What are the legal grounds based on which an electronic evidence can be dismissed?
In the past 10 years, Egyptian courts have been trying arduously to remedy the vagueness of the E-Signature Law and its old executive regulations, by establishing or clarifying some of the important principles in this regard.
These judgments all agree that the electronic documents and writings have the same evidentiary weight as any other private or official writings and documents if these electronic documents fulfills the requirements set out in the E-Signature Law and the executive regulations.
However, the originality of the judgment rendered in 2020 by the Egyptian Court of Cassation, lies in limiting the grounds of dismissing an electronic evidence to proving that the original electronic document submitted as evidence is forged, whereas, before this judgment, an electronic evidence could have been dismissed by simply requesting the relevant court to suppress the transcribed version of the original electronic document, which is something pretty much unattainable.
Further, the 2020 judgment shifted the onus of proof, as it can be argued that there is an assumption that the submitted electronic evidence is valid and fulfills the requirements set out in the E- Signature Law and the executive regulations, unless proven otherwise by the party alleging that the electronic evidence is forged. The judgments issued before 2020, however, established that the party submitting an electronic document is the one who should prove that the requirements are fulfilled in case the other party challenges the validity of the document and request the suppression of its transcribed copy.
That said, it is legitimate to acknowledge that the Egyptian Court of Cassation by means of its recent judgment, marked a milestone for the use and regulation of electronic evidence. Hence, a distinction should be made between, so far, the two “eras” in the lifetime of the use of electronic evidence in Egypt:
(i)Pre 2020 Judgment:
In 2011, the Cairo Court of Appeal rendered a judgment, whereby it ruled that the E-Signature Law clearly provided that the electronic writings and documents have the same evidentiary weight as any other private or official writings and documents (as defined in the Evidentiary Law), if these electronic writings or documents fulfills the conditions of validity set out in the E-Signature Law and its executive regulations6.
Moreover, in 2015, the Cairo Economic Court used an email sent from the Defendant to the Claimant in order to determine the existence of a contractual relationship between both parties. The Court considered the email to be a valid and admissible electronic evidence and rejected the Defendant’s allegations according to which, the email cannot constitute an admissible evidence to prove the existence of a commercial relationship7.
The Cairo Economic Court based its decision of the fact that (i) according to Article 2.1 of the Egyptian Trade Law No. 17/1999 (“Egyptian Trade Law”), the trade practices and costumes are to be applied in case of absence of a legislative text. Moreover, Article 69 of the Egyptian Trade Law states that the commercial obligations can be proved by any means and not necessarily by a [traditional] written document; and (ii) the email in question is a valid evidence as it fulfilled all the requirements set out in Article 8 of the old executive regulations (Article 9 of the New Executive Regulations), since the Defendant never denied that the email address used in sending the email was pertaining to the Defendant’s domain.
Thereafter, the Egyptian Court of Cassation rendered a judgment in 2016, interpreting Articles 1.b and 15 of the E-Signature Law8. The Court ruled that all data created, incorporated, stored, sent or received by electronic means or any other similar mean is to be considered a valid writing having the same evidentiary weight as any official or private writing used in civil, commercial or administrative dealings.
On this basis, the Court determined that a complaint submitted by means of an email to the Supreme Electoral Commission (in accordance with Article 45 of the Law on the Regulation of the Exercise of Political Rights Law No. 45/2014) is valid, since the language of the aforementioned Article is broad enough to encompasses all types of writings, whether traditional written documents or not, including the emails.
More recently though, in 2019, the Egyptian Courts went multiple steps backwards when it rendered that even though the Evidence Law is devoid of any reference made to the evidentiary weight of the correspondences exchanged between the parties thereto, including the exchange of emails, the E-Signature Law defines the electronic document and regulates the evidentiary weight thereof. The Court added that the E-Signature made it clear that an electronic document cannot be admitted as a valid evidence unless the requirements set out in the E-Signature Law and its executive regulations are fulfilled9.
(ii)Post 2020 Judgment:
In March 2020, the Egyptian Court of Cassation rendered a judgment whereby it reiterated two previously established principles and more importantly introduced a new principle with respect to the grounds on which an electronic evidence can be challenged.
First, the Court stated that the intention behind the issuance of the E-Signature Law is to guarantee a probative value to the electronic writings and documents and to regulate the use of the electronic evidence. While the writings on paper is the traditional and commonly known type of writings, it is not the only one. The validity of a written evidence can therefore be established by merely proving the link between the writing and its author. That said, a writing should not necessarily take the shape of a hand-signed paper document to be admitted as a valid evidence. The Court thus decided that all types of writings, whether on paper support or on electronic support, can be considered a valid written evidence.
Second, the Court confirmed that the existence of a commercial relationship can be determined by a mere exchange of emails. The Court based its conclusion on the powers granted to the judge, by virtue of the Egyptian law and international treaties, to determine the existence of an offer and an acceptance by a mere exchange of emails between the contracting parties. Since emails are exchanged through the internet, each of the sender and the receiver shall have the original electronic version of these messages (data contained in the electronic support) saved within their email “inbox” and their electronic devices.
Third, and most importantly, the Court introduced a new principle according to which, an electronic evidence can only be challenged and dismissed on the grounds of forgery. The Court explained that, the validity of an electronic document used to be challenged by requesting the courts to suppress the transcribed copy of the electronic document since the original document was not submitted to the courts. Nevertheless, submitting the original electronic document to the courts would be unrealistic.
The Court resolved this issue by stating that a written or printed version of an electronic document has the same content of the electronic document itself. Therefore, a party willing to challenge the validity of an electronic document, cannot challenge the validity of the transcribed copy of the electronic document submitted to the courts, but can rather allege that the email or the electronic document itself is forged, as per the procedure set out in Article 49 of the Evidence Law10 and request the intervention of the technical inspection in this regard.
Practice in commercial arbitration:
It is safe to argue that the situation has always been more advanced in arbitration. Also, it is indeed an established principle by the Egyptian courts that, arbitral tribunals are granted wide discretionary powers to conduct the arbitration procedures in a very flexible way as long as the integrity and the efficiency of the procedures are granted.
In this respect, the Egyptian Court of Cassation rendered a judgment whereby it ruled that an arbitral award cannot be annulled for the mere and simple reason that the arbitral tribunal conducted the arbitration proceedings using electronic means, as long as the arbitral tribunal preserved the privacy and confidentiality of the proceedings and the parties to the arbitration did not agree otherwise11.
This implies that submitting electronic evidence before arbitral tribunals, unlike Egyptian Courts, is arguably a straightforward and trouble-free process, offering a larger protection of the parties’ rights.
Although the Egyptian Arbitration Law No. 27/1994 (“Egyptian Arbitration Law”) is devoid of any reference made to the use of electronic evidence, and the Arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration (“CRCICA”) in effect as of 2011 (“Rules”), does not tackle such issue per se, arbitral tribunals tend to be more flexible in admitting electronic evidence during the course of the arbitration proceedings, being only guided by the IBA Rules on Taking of Evidence (unless otherwise agreed), without being necessarily concerned by the deficiencies of the Evidence Law or the E-Signature Law.
By way of illustration, in CRCICA Arbitration Case No. 983/201412, the Arbitral Tribunal took into consideration the electronic evidence submitted by the Claimant, in order to determine the existence of an agreement between the Claimant and the Respondent on amending the contract subject of the dispute. The Arbitral Tribunal rejected Respondent’s allegations, whereby the Respondent denied the existence of such an agreement to amend the contract subject of the dispute, based on two principles, namely, (i) the powers conferred to the arbitral tribunal by means of article 27.4 of the Rules, to determine the admissibility, relevance, materiality and weight of the evidence offered, and (ii) the powers granted to the arbitral tribunal to decide on the merits of the case, by virtue of the principle established by the Egyptian Court of Cassation, according to which, the existence of a contractual relationship is determined and assessed, solely, by the judge ruling on the merits of the case, as long as such assessment is validly substantiated.
When the Arbitral Tribunal rendered the arbitral award in the abovementioned arbitration case, the award was challenged before the Cairo Court of Appeal. The latter ruled in its judgment rendered in 201613, that an arbitral award cannot be challenged based on the arbitral tribunal’s analysis of the facts of the case and its interpretation of the contractual clauses, regardless of the accuracy of such analysis and interpretation.
In light of the above, and in order to grant any contracting party the opportunity of fairly choosing between submitting an existing dispute (or agreeing on submitting a potential dispute) to the Egyptian Courts or to arbitration, the deficiencies in the E-Signature Law and the Evidence Law must be remedied.
Such issues, however, should be resolved by means of a legislation and not court decisions only, since the case law can only be considered as an ancillary to the laws and regulations and not a substitute thereof.
This being said, and in order to encourage the use of technology in conducting business in Egypt, an additional layer of protection must be offered to contracting parties by introducing a new set of rules, either incorporated in the E-Signature Law or the Evidence Law complementing the existent ones. Such rules must include, inter alia, a regulation with respect to the authority to which the technical inspection of electronic documents not containing an electronic signature is assigned. This authority can either be ITIDA or a new entity created jointly by the Ministry of Telecommunication and the Ministry of Justice.
A regulation is also mandatory in order to determine the legal grounds on which the validity of an electronic document is challenged: will the electronic document be decisively challenged, solely, on the grounds of forgery? Or should a new ground for challenging the electronic document be expected soon?