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Concept of sovereign immunity
What is the general approach to the concept of sovereign immunity in your state?
There are no express legislative instruments or provisions regulating sovereign immunity. However, in practice, the general approach to sovereign immunity is that it is restricted, whereby the state enjoys judicial immunity only with respect to the limited ‘acts of state’ that are not subject to judicial scrutiny or review as per the general principles set forth by the judiciary.
What is the legal basis for the doctrine of sovereign immunity in your state?
Sovereign immunity is legally based on the Egyptian Constitution 2014 (article 1), customary international law, case law on jurisdictional and enforcement related immunity, the Vienna Convention on Diplomatic Relations 1961, and academic literature that considers article 35 of the Law on Civil and Commercial Procedures No. 13 of 1968 (LCCP) a manifestation of jurisdictional immunity. Article 35 states: ‘if the defendant did not attend, and the forum courts were not competent to hear the claim, as per the preceding article, a court shall on its own motion rule itself incompetent to hear the claim.’
Customary international law has been integrated in national law, and without prejudice to any Egyptian provision, judicial immunity is not absolute, but restricted to acts exercised by the foreign state as a sovereign power. Civil and commercial transactions and any related disputes do not enjoy this immunity (Cassation Judgments, Challenges Nos. 1412, 1468 and 1495 of JY 50, dated 29 April 1986; and Nos. 641 and 668 of JY 60, dated 28 April 1991).
Scholars have suggested that the privileges and immunities granted to diplomatic missions are an extension of the personal jurisdiction of the state, and that such privileges and immunities are prerequisites for the diplomatic mission and its members to efficiently undertake the tasks entrusted to them in their formal (sovereign) capacity.
Is your state a party to any multilateral treaties on sovereign immunity? Has the state made any reservations or declarations regarding the treaties?
Egypt is party to the Vienna Convention on Diplomatic Relations 1961 by virtue of Presidential Decree No. 469 of 1961 and made reservation with respect to article 37(2) of this Convention.
Egypt is also a signatory to the Convention on the Privileges and Immunities of the Specialized Agencies (New York, 21 November 1947), and its instrument of accession was deposited on 28 September 1954; Egypt is equally a signatory to the Convention on the Privileges and Immunities of the United Nations (New York, 13 February 1946) and deposited its instrument of accession on 17 September 1948.
Egypt has also ratified the Treaty on the Privileges and Immunities of the Arab League, which is based on article 14 of the Charter of the Arab League.
However, Egypt is not party to either the 1972 European Convention on State Immunity or the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property.
Describe domestic law governing the scope of jurisdictional immunity.
Since Egypt is a member to the 1961 Vienna Convention, the state, President, members of the diplomatic mission, members of the consulate and members of the armed forces all enjoy jurisdictional immunity.
Articles 28 to 35 of the Law of Civil and Commercial Procedures No. 13 of 1968 set the general principles for the jurisdiction of the Egyptian courts. That said, Egyptian courts generally have jurisdiction to hear cases brought against a foreign person residing in Egypt unless a specific legislative provision or instrument expressly confer immunity on certain foreigners.
A person shall enjoy immunity in his or her capacity as a representative of a sovereign state with respect to acts undertaken on behalf of the state. He or she cannot be subject to criminal proceedings such as arrest, detention, inspection or custody unless he or she was caught committing the crime (article 54 of the Egyptian Constitution 2014). A diplomatic package also enjoys immunity from inspection.
A person acting in his or her personal capacity does not generally enjoy jurisdictional immunity.
State waiver of immunity or consent
How can the state, or its various organs and instrumentalities, waive immunity or consent to the exercise of jurisdiction?
The main reference in this regard is article 32 of the 1961 Vienna Convention. Waiver of jurisdictional immunity of diplomatic agents may be waived by their state (Cassation Judgment in Challenge No. 295 of JY 51, Court Session of 25 March 1982). However, it must be express.
In any event, the state and its various organs and instrumentalities may waive immunity and submit to the jurisdiction of a court either expressly or by not invoking immunity before national courts. Moreover, consent to the exercise of jurisdiction is also waived if the state or its various organs and instrumentalities consent to arbitration or conclude arbitration agreements. However, two important points merit mentioning in this regard:
- Waiver of immunity from jurisdictional immunity does not imply a waiver from enforcement-related immunity with respect to the execution of a judgment. A separate waiver for execution is generally required, especially for public assets that are generally shielded from enforcement.
- Specifically concerning administrative contracts, Egyptian law requires the competent minister’s approval of any arbitration agreement included in administrative contracts (article 1(2) of the Egyptian Arbitration Law). Administrative courts have also ruled that such approval must be express, otherwise the arbitration agreement becomes invalid and any award rendered in this respect would be set aside and refused recognition and enforcement.
In which types of transactions or proceedings do states not enjoy immunity from suit (even without the state’s consent or waiver)? How does the law of your country assess whether a transaction falls into one of these categories?
Insofar as a transaction or proceeding does not qualify as an ‘act of state’ undertaken by virtue of the state’s prerogatives as a manifestation of its sovereign power, and the state is not dealing under its diplomatic and consular immunities and privileges, the transaction or proceeding shall not be immune from suit. Thus, a state can be sued with respect to its civil and commercial acts or transactions, including participation in foreign companies as a private law person, and ownership of real estate assets for civil or commercial purposes.
Moreover, the state or an instrumentality thereof can be sued before the Egyptian State Council (Administrative Courts) with respect to administrative decrees, administrative contracts, concession contracts, public works contracts and public supply contracts. However, state council courts do not hear disputes relates to ‘acts of state’ (article 11 of thereof).
Commercial activities are listed in articles 4 to 9 of the Commercial Law No. 17 of 1999. For instance, ‘commercial activities include purchase of movables of any kind with the aim of selling or leasing them as they are, or after shaping them in another form, and also selling or leasing these movables; renting movables with the aim of leasing them; founding trading firms.’ All commercial companies are considered related to commercial law, and so participation in these companies will not carry any immunity from suit.
If one of the exceptions to sovereign immunity set out above applies, is there any related principle that could prevent a court having jurisdiction over the state?
Civil and administrative courts cannot hear claims or cases pertaining to acts of state. These acts cannot be subject to judicial review, cancellation, nullity or compensation. They are of a political nature and are undertaken to protect the interests of the state internally and abroad. State courts lack jurisdiction to hear disputes related to acts of state. See article 17 of Law No. 46 of 1972, Organisation of the Judiciary Authority, and article 11 of Law No. 47 of 1972, State Council Law.
In its Constitutional Judgment in Claim No. 48 of JY 4 (21 January 1984), the Supreme Constitutional Court held that:
the test in legal characterisation of what could qualify as acts of state or not is the nature of acts themselves, which are governed by a general frame that they are issued by the higher policy of the state by virtue of its supreme authority and sovereignty internally and abroad seeking the realisation of the political public interest in whole and respecting the rights guaranteed by the constitution and the regulation of its external relations between the state and other states, and securing its safety internally and defending its territory against foreign attack. The evaluation of this test is solely vested with the discretionary power of the judge.
Further, the Court of Cassation held in its Judgments in Challenge No. 2427 of JY 55 (18 December 1986); and Challenge No. 2233 of JY 68 (26 January 2003), that:
Acts of State are distinguished from ordinary administrative acts by the significant political nature of the surrounding political considerations, they are issued from the executive authority in its capacity as a higher governing authority within its political competence to achieve the interest of the public in whole, and respecting its constitution and monitoring its relations with other states, securing its safety and security internally and abroad. Acts issued in that regard are not susceptible, by their very nature, to litigation, being overwhelmed by political considerations which justify authorising the executive authority to adopt whichever procedures it deems appropriate for the state’s well-being, safety and security without review or scrutiny from the judiciary.
And the Supreme Administrative Court, in Challenge No. 4878 of JY 58 (27 March 2010), defined acts of state as:
those acts which are issued by the government in its capacity as a governing authority but not as an administrative authority. On the one hand, they could be acts regulating the relation between the government and the parliament and Shura Council, or regulating the political relations with foreign countries. On the other hand, they could be measures to defend the general security from domestic disturbance, or to secure the safety of the state from an outer enemy. Acts of state, under this definition, which are closely related to the order of the state and its sovereignty internally and abroad cannot be subject to judicial scrutiny.
However, characterising an act as an ‘act of state’ by the trial court is subject to the Court of Cassation’s scrutiny (Cassation Judgment in Challenge No. 9552 of JY 64, 24 June 1999).
Proceedings against a state enterprise
To what extent do proceedings against a state enterprise or similar entity affect the immunity enjoyed by the state? Is there precedent for piercing the corporate veil to subject the state itself to those proceedings?
Waiver of the immunity of the state cannot be assumed, and it has to be waived explicitly or implicitly by a conduct that unequivocally implies such waiver. Thus, a state enterprise or similar entity that is subject to court proceedings does not imply a further waiver of the judicial immunity of the state itself.
Piercing the corporate veil is not readily invoked or existent in court proceedings. However, in arbitral proceedings, Egyptian law recognises the possibility of extending the arbitration agreement to third parties (which may include the state if its instrumentality was party to the arbitration agreement) in certain circumstances. A very recent Egyptian Court of Cassation judgment illustrated examples of principles on the basis of which arbitration agreements could be extended to third parties. These included the following doctrines: groups of companies, groups of contracts, universal successors, mergers, and assignment. Thus, a state instrumentality or subsidiary could subject the state to proceedings brought against such instrumentality or subsidiary in cases where the evidence demonstrates that the acts of instrumentality or subsidiary were attributable to the state, or controlled or mandated by the state. However, this remains a fact-sensitive exercise to ascertain whether justifiable grounds exist to implicate the state.
It is also worth noting that piercing the corporate veil occurred in Malicorp (Case No. 382/2004 CRCICA), where the arbitration award rendered in 26 February 2006 was extended to Egypt.
As per an earlier 2004 decision of the Egyptian Court of Cassation, an arbitration clause extends to a party (ie, the state) if it participated clearly and effectively either in the negotiation, performance or termination of a contract concluded by its instrumentality or subsidiary. This is in application of the doctrine of group of companies referred to herein above.
More recently, Egyptian courts have had an opportunity to review an arbitral award rendered in Egypt in 22 March 2013 regarding a dispute involving a Kuwaiti investor (Mohamed Abdulmohsen Al Kharafi & Sons Co) and the government of Libya and others under the auspices of the Unified Agreement for the Investment of Arab Capital in the Arab States, dated 26 November 1980. While the Court of Appeal upheld the award against Libya, noting that the Treaty does not allow any form of review of arbitral awards, the Court of Cassation reversed the ruling of the Court of Appeal.
What is the nexus the plaintiff needs to have standing to bring a claim against a state?
As per article 3 of the Civil Procedures Law, an action, claim or plea is not admitted before a court if the plaintiff does not have a direct, personal and an existing interest acknowledged by the law. Nevertheless, a probable interest may suffice if the purpose of the claim is to avoid an imminent damage or to secure a right for which evidence could be lost at the time of dispute. A court may rule, on its own motion, at any stage of the case, the claim inadmissible if it lacks any of these conditions.
In specific reference to arbitration, article 11 of the Arbitration Law provides: ‘Arbitration agreements may only be concluded by natural or juridical persons having the capacity to dispose of their rights. Arbitration is not permitted in matters that cannot be subject to settlement.’ It has also been seen that, in the specific context of administrative contracts, a claimant must evidence that the competent minister has approved the arbitration agreement.
Nexus of forum court
What is the nexus the forum court requires to exercise jurisdiction over a state if the property or conduct that forms the subject of the claim is outside the forum state’s territory?
If the property that forms the subject of the claim is an immovable located outside the forum’s territory, the forum court shall not have jurisdiction to hear the in rem disputes related to this immovable (articles 28 and 29 of the LCCP). However, rights in personam could be brought before the forum court, provided that the defendant was either Egyptian (article 28) or a foreigner with a domicile or place of residence in the forum (article 29).
If the conduct that forms the subject of the claim is outside the forum state’s territory, a forum court shall have jurisdiction to hear this claim provided:
- the foreigner has a domicile or a place of residence in the forum (article 29 of the LCCP);
- the foreigner has a has a domicile of choice (article 30 of the LCCP);
- the claim is related to: an obligation that created, performed or should have been performed in the forum; or a bankruptcy in the forum (article 30/1, 2);
- the claim is related to an issue of personal status where the plaintiff is a national or foreign resident with a domicile in the forum, the defendant does not have a known domicile abroad and Egyptian law is applicable to the dispute (article 30/7); or
- if one of the defendants has a domicile or a place of residence in the forum (ie, Egypt) (article 30/9).
Moreover, if the forum court was seised, it shall remain competent to settle the preliminary issues, incidental claims related to the main claim, and any related petition to this claim where considerations of justice entail deciding this petition with the main claim (article 33). Thus, if the property or conduct constitute the subject matter of a preliminary issue, incidental claim or related petition, the forum court may entertain jurisdiction to decide upon it together with the main claim over which the court retains jurisdiction.
The forum court is also competent to decide on interim and provisional measures in the forum even if it were not competent to hear the main dispute (article 34 of the LCCP).
Interim or injunctive relief
When a state is subject to proceedings before a court or arbitral tribunal in your jurisdiction, what interim or injunctive relief is available?
Submission to the jurisdiction of the forum court entails being bound by any interim relief requested in court. Interim relief includes orders to secure rights that could be lost by a loss of evidence, to prove a fact that could cease to exist by lapse of time, or to avoid imminent harm; they generally aim to provide a certain interim expedited (urgent) protection before the final settlement of the dispute (such as an interim award of damages, judicial guardianship, depositing goods in a secure place, protective seizure or sale of goods susceptible to damage) (eg, article 133 of the Evidence Law No. 25 of 1968). The following conditions must be met to successfully secure interim relief:
- urgency condition: the need for an expedite judgment, order or measure to save the right or avoid imminent harm;
- the interim measure does not affect the substantive rights in dispute (article 45 of the LCCP);
- the measure is enforceable in the forum of the judge; and
- the interim or urgent judgment or order is sought by the concerned party with a vested interest.
By contrast, a state’s consent to submit to an arbitral tribunal’s jurisdiction does not amount to a consent to submit to the tribunal’s jurisdiction to grant interim relief, unless any applicable institutional arbitration rules grant the tribunal such powers. According to article 24 of the Egyptian Arbitration Law:
Both parties to the arbitration may agree to confer upon the arbitral tribunal the power to order, upon request of either party, interim or conservatory measures as considered necessary in respect of the subject matter of the dispute and to require any party to provide appropriate security to cover the costs of the ordered measure. If the party against whom the order was issued fails to execute it, the arbitral tribunal, upon the request of the other party, may authorise the latter to undertake the procedures necessary for the execution of the order, without prejudice to the right of said party to apply to the president of the competent Egyptian court to issue an execution order.
When a state is subject to proceedings before a court or arbitral tribunal in your jurisdiction, what type of final relief is available?
Both specific performance and damages are available. Specific performance is the primary remedy if it is possible and feasible.
Service of process
Identify the court or other entity that must be served with process before any proceeding against a state may be issued.
Serving a notice is, in principal, performed by a court bailiff. Unless a specific provision exists, according to article 13 (1, 2 and 6) of the LCCP, serving a copy of the notice on the state shall be to the competent ministers and heads of relevant public entities and governors or their representatives. Serving a state by a copy of statements of claim, statements of appeal (writs) or judgments, shall be directed to the State Lawsuits Authority, or its branches in the districts of the state as per the governing rules on local jurisdictions. The State Lawsuits Authority is acting on behalf of the state as a claimant or respondent in disputes, proposing any settlement thereto, and technically supervising the legal departments in the administrative body of the state with respect to the ongoing disputes (article 196 of the Egyptian Constitution 2014).
The president of the State Lawsuits Authority, or whoever he or she delegates, may contract with lawyers qualified to appear before courts to conduct a suit related to one of the public juridical persons before the foreign courts (article 6 of the Law of the State Lawsuits Authority No. 75 of 1963).
How is process served on a state?
If the process is served by Egypt on a foreign state, unless there is a specific provision by bilateral or multilateral treaties, the copy of the notice shall be delivered to the Egyptian public prosecution in Cairo, and the public prosecution shall deliver it to the Ministry of Foreign Affairs to be delivered by diplomatic means and subject to the condition of reciprocal treatment. The copy of the notice shall be delivered directly to the headquarters of the diplomatic mission of the foreign state.
A notice shall not, as per the 1961 Vienna Convention, be served on the diplomat in the diplomatic premises or accommodation unless it accepts to be served in person. This rule shall apply even in cases where the diplomat was legally subject to the national courts or waived his or her jurisdictional immunity. Serving a diplomat shall be conducted by the diplomatic means through the Ministry of Foreign Affairs, otherwise the notice would be null and void.
In the case of serving a person in a foreign state or serving a state that is a contracting party to the Hague Convention on the Service of Judicial or Extra-Judicial on 15 November Documents 1965, a notice shall be served to the public prosecution. The prosecution shall then deliver it to the office of the international cooperation at the Ministry of Justice to check if there are any bilateral or multilateral treaties with the concerned state. If such treaty exists, the provisions governing the service of notice therein shall apply.
If the process is served on Egypt, then it shall be served at the Lawsuits Authority.
Judgment in absence of state participation
Under what conditions will a judgment be made against a state that does not participate in proceedings?
A judgment may be made against a state that does not participate in the proceedings, provided that the state is validly notified of the proceedings.
If both the plaintiff and the defendant did not attend the session, a court can either decide the case if it was ready for a ruling, or it may decide to de-register the case. If 60 days have lapsed without a request from the parties to proceed with or expedite the case, or if both parties did not attend after the case was re-initiated, the court shall rule that the case never existed (article 82 of the LCCP).
If the state’s representative attends any session or submits a statement of defence, the state would be deemed represented, any judgment or decision may be rendered against it, and it would be effective and enforceable in relation to the state (article 83 of the LCCP).
If the state is the defendant and did not attend the first session, despite being validly notified, the court can decide on the case in its absence. If the notice was invalidly served, the court can adjourn the case till the state is validly notified (article 84/1 of the LCCP).
If a case is adjourned upon the parties’ agreement for a period of no more than three months following the court’s approval, then the state (as a claimant or appellant) did not activate or expedite the case within eight days following the lapse of this period, the state is deemed to have waived its claim or appeal (article 128 of the LCCP).
If the state as a claimant abstains or did not participate in the proceedings, a party of an interest can ask the court to terminate the proceedings after the lapse of six months from the last procedure.
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 the 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 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 same 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).
Are there any public databases through which assets held by states may be identified?
Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?
Immunity of international organisations
Does the state’s law make specific provision for immunity of international organisations?
The immunity of international organisations hosted in Egypt is subject to the relevant treaty.
Domestic legal personality
Does the state consider international organisations headquartered or operating in its territory as enjoying domestic legal personality and could such organisations be subjected to proceedings before a court or arbitral tribunal?
Egyptian legislation sets out the entities that enjoy legal personality, including ‘religious groups and organisations which the state admits its juridical personality’ (article 52 of the Egyptian Civil Code). Thus, an international organisation is granted the legal personality as per the charter of such organisation as acknowledged by Egypt in accordance with local procedures. By incorporating the organisation in Egypt, acknowledging its existence (if abroad) or registering the same as a foreign organisation with the Ministry of Foreign Affairs, the Egyptian state admits the legal personality of the respective organisation enabling it to operate in Egypt.
For example, Law No. 130 of 1951 ratified the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations. This Convention stipulates that all agencies listed therein (ie, international organisations) shall possess juridical personality. They shall have the capacity to contract, to acquire and dispose of immovable and movable property, and to institute legal proceedings (article 2 of the Convention).
Similarly, Law No. 82 of 1954 ratified the agreement between the International Civil Aviation Organization (ICAO) and the Egyptian government, which provides that the ICAO enjoys a juridical personality having legal capacity where it can conclude contracts, own movable and immovable assets in accordance with Egyptian law, and litigate (article 2, section 2 of the agreement). The agreement concluded between ICAO and the Egyptian Government provides that the said organisation, its properties and assets enjoy immunity from any judicial proceeding unless waived by the general secretary of the organisation (article 4 of the agreement).
Despite the jurisdictional immunity granted to the ICAO, it was subject to judicial proceedings before an Egyptian civil court in relation to a lease agreement. However, the Egyptian Court of Cassation rejected ICAO’s defence of immunity where it held that such immunity is not extended to its contractual obligations, which confirms the restrictive approach adopted by the Egyptian courts in distinguishing private domain commercial dealings from public domain dealings.
Although the establishing treaty of the Arab Academy for Maritime Transport, signed in Cairo on 9 November 1975 and entered into force on 31 August 1975, provides under article 12 therein that experts and employees of the Academy shall enjoy the same diplomatic privileges and immunities accorded by virtue of the Treaty on the Privileges and Immunities of the Arab League approved by the League Council on 10 May 1953, Egypt, upon ratifying the latter Treaty by virtue of Law No. 89 of 1954, has reserved the application of article 22 of the said Treaty. This article affords the employees of the Arab League, their spouses, and their minor children the same privileges and immunities accorded to diplomatic missions. The legal counsel is not considered an expert who enjoys the diplomatic immunity under article 25 of the Treaty of Privileges and Immunities of the Arab League.
Would international organisations in the state enjoy enforcement immunity? Are there any cases where debtors sought to enforce against a state by attaching or executing assets held by international organisations?
The scope of enforcement immunity granted to an international organisation is identified under the relevant treaty establishing the same, or the charter of such organisation as recognised by Egypt.
An example of enforcement immunity of international organisations, the immunity granted to the Specialized Agencies of the United Nations by virtue of the Convention of 1947, which is ratified by Egypt. Under this Convention, it is provided that ‘the specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution’ (article 3, section 4).
Additionally, the relevant convention further provides that the property and assets of the specialised agencies are immune from search, requisition, confiscation, expropriation and any other form of inference, whether by executive, administrative, judicial or legislative action (article 3, section 5).
An example of enforcement immunity granted to international organisation or body is the treaty of establishing the headquarters of the Cairo Regional Centre for International Commercial Arbitration, which is further ratified by virtue of the Presidential Decree No. 399 of 1987. The said treaty stipulates that: ‘the Centre, its properties, and assets, in the Arab Republic of Egypt, enjoy immunity from legal proceedings. The Committee may remove this immunity in any event determined from its side. Nevertheless, the elimination of the immunity does not extend to any enforcement procedures.’
Waiver of judicial immunity does not imply a waiver of enforcement immunity. Additionally, the same above treaty provides that the premises of the centre, properties, assets, and official documents are immune from search, requisition, expropriation, attachment or any other form of executory, administrative, judicial or legislatory intervention.
The ICAO also enjoys immunity from enforcement proceedings by virtue of the agreement referred to above under question 28. The said agreement provides that the premises of the ICAO, properties and assets are immune from search, requisition, expropriation, attachment or any other form of executory, or administrative or judicial or legislative intervention. However, the same agreement provides for one exception, according to which the ICAO is not immune from enforcement proceedings, namely expropriation for public interest. That is how a scope of a certain immunity may differ from one treaty to another. The premises of the Arab League’s Headquarters enjoy enforcement immunity.
Updates & Trends
Updates and trends
The new Investment Law No. 72 of 2017 excluded express reference to the International Centre for Settlement of Investment Disputes (ICSID) as an option for settlement of investment disputes. This now implies that resorting to ICSID can occur by one of two ways: the investor and the Egyptian state entering into a direct agreement explicitly referring to ICSID; or there is a bilateral investment treaty between Egypt and the investor’s state offering access to ICSID. The local investment law route is no longer available as a third option.
The ministerial approval, or the approval of whoever exercises his or her competence for public juridical persons of arbitration agreements with respect to disputes of administrative contracts is considered by the state council a condition of validity, without which the arbitration agreement would be null and void for lacking the legal capacity (Supreme Administrative Court, the Circuit of Unifying Principles, in Challenge No. 8256 of JY 56 of 5 March 2016). A minister cannot delegate his or her power of approval on arbitration agreement (article 1 of the Arbitration Law). This rule is questionably perceived by courts to pertain to public policy that should be observed by the administrative entity, and the contracting party with this entity. Thus, a breach of the requirement of the signature of the competent minister on the arbitration agreement related administrative dispute renders the agreement susceptible to nullity. The preliminary signature accepting arbitration to settle an existing dispute does not appear to dispense with the requirement to sign the arbitration agreement itself by the competent minister. However, it is hoped and expected that this judicial trend will change in the near future.
Moreover, the topic of enforcement of annulled arbitral awards remains a hot topic in Egypt. However, it is not clear whether Egyptian courts would follow the French ‘delocalisation approach’ towards recognition and enforcement of foreign annulled arbitral awards. No test case has yet arisen in practice.
Further, the extension of arbitration agreements to third parties also remains a hot topic, although the Court of Cassation has most recently set the stage for the principle of extension and the doctrines on the basis of which extension may occur. Nevertheless, the Supreme Court listed such doctrines by way of illustration without exhaustively listing them.