Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

Egypt did not enact specific legislation governing its immunity from enforcement proceedings. Absent specific legislative provisions, the Egyptian judiciary will apply the provisions of enforcement immunity if any exists under any treaty to which Egypt is a party. For example, this immunity is acknowledged under article 32 of the 1961 Vienna Convention and customary international law.

Generally, once an award or a judgment is rendered, a property of a state, insofar as it exists in the territory of the forum, may be subjected to enforcement procedures subject to the civil and commercial procedures enshrined in the LCCP. However, if there is a bilateral or multilateral convention, this will determine the types of assets and actions available to enforce over such assets.

Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

As a matter of principal, under the Egyptian legal system, unless otherwise provided in a specific legislation or convention, the LCCP applies to all matters related to the proceedings of litigation and enforcement. Accordingly, since there is no specific legislation in Egypt that regulates enforcement immunity or sets out specific procedures, the debt collection statutes and enforcement sections of the LCCP (articles 296 to 301) shall apply.

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

As previously mentioned, waiver of immunity from jurisdiction does not generally imply waiver of immunity from execution. However, commercial assets are subject to enforcement without the need for special waivers.

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

As a matter of Egyptian law, public domain assets dedicated for public interest use cannot be subject to enforcement or execution because they fall beyond the tradeable domain (article 87(2) of the Egyptian Civil Code; articles 32, 34 and 126 of the Egyptian Constitution 2014). These assets lose their public domain nature (ie, these assets shall cease to be public assets) when they cease to be dedicated to serve public interest; this can occur by either law, decree or a decision from the competent minister, or by conduct.

Private domain assets owned by the state can only be subject to enforcement or execution if allocated for commercial purposes. However, privately owned assets by the state that are dedicated to public interest are deemed as public assets and cannot be subject to seizure or enforcement.

According to Egyptian jurisprudence, sovereign immunity is limited to the sort of acts and transactions performed by a state in its sovereign capacity. Any other civil or commercial acts are not covered by sovereign immunity.

It is further established that it is also permissible to initiate enforcement proceedings against a foreign state and seek to attach any bank account the state may hold.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

Since there is no specific law in Egypt that regulates sovereign immunity, the reference with respect to identifying the assets that would normally be covered by enforcement immunity would primarily be the ratified treaties in force and to which Egypt is a party. For example, the Vienna Convention on Diplomatic and Consular Relations refers to the assets that are immune from enforcement proceedings and this includes the premises of a diplomatic mission, which are also immune from police search, requisition, attachment or execution (article 22/3).

Egyptian domestic law could play a subsidiary role in determining such assets. To this effect, the Egyptian Civil Code mentions, by way of example, in article 88-bis, assets that cannot be subject to seizure or enforcement. This would include buildings, tools, equipment or other property designated for the proper functioning of a public utility and that are deemed by law as public domain assets. These are non-­commercial assets that fall beyond the domain of dealings and transactions insofar as they are allocated for public interest purposes.

The Egyptian courts apply a restrictive approach to the notion of public assets where courts have ruled more than once than a private asset owned by individuals, but those designated for public interest shall not be deemed a public asset until the property of such asset is transferred to the state.

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

There is no specific legislation that provides for this kind of immunity, and Egypt is not a signatory to the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which provides immunity to central banks and other monetary authorities. However, the general principles stated above would apply. Thus, if the property or accounts of a central bank or other monetary authority are designated for public domain purposes, they would be covered by enforcement immunity. However, commercial purposes assets would not normally be covered by such immunity.

In Egyptian domestic law, the Banking Law No. 88 of 2003 regulating the Egyptian Central Bank and the Egyptian banking sector, which is not applicable to foreign central banks, did not regulate enforcement immunity; but article 4 provides that assets of the Central Bank are deemed private assets, except from a criminal law perspective, where they are considered public assets or funds as per article 23 of this Law.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

No further test is developed or required before enforcement is permitted.

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

Service of process on a foreign state would be specifically governed by the rules enshrined in any treaty to which Egypt is a party (whether bilateral or multilateral). Absent specific provisions or any applicable treaty, a service of process shall be effected through diplomatic and consular means, where the notice shall be delivered to the public prosecution in Cairo, and the public prosecution shall then deliver it to the Ministry of Foreign Affairs, which shall then use diplomatic means to deliver the notice directly to the headquarters of the diplomatic mission of the foreign state.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

Yes. These are primarily enforcement proceedings based on arbitral awards. An example, is the arbitral award rendered against Libya in favour of a Kuwaiti investor under the auspices of the Arab Unified Treaty for Investment of Arab Funds in Arab States (Mohamed Abdulmohsen Al-Kharafi & Sons Co v Libya and others).

Public databases

Are there any public databases through which assets held by states may be identified?

No.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

No.