UPDATE: An Overview of the Egyptian Legal System and Legal Research

 

By Dr. Mohamed S. E. Abdel Wahab

Dr. Mohamed S. E. Abdel Wahab (MCIArb.), Licence en Droit -LLB (CAI), LL.M (CAI), MPhil (MAN), Ph.D (MAN), CIArb Dip. International Commercial Arbitration (Balliol College, Oxford University) is an Assistant Professor of Law at the Faculty of Law, Cairo University, Egypt, and Assistant Director of the English Section at the Faculty of Law (Cairo University). He has taught part-time on the LL.M, LL.B, and BA programs at Manchester and Manchester Metropolitan Universities in England. Dr. Abdel Wahab holds a number of visiting positions in Egypt, the UK, and the USA, where he teaches English Contract law, Introduction to Anglo-American Law, Comparative Law, International Arbitration and Conflict of Laws. Dr. Abdel Wahab is currently a Fellow of the National Centre for Technology and Dispute Resolution at the University of Massachusetts, Amherst, USA. Dr. Abdel Wahab is an Adjunct Professor of Law and International Commercial Arbitration (Indiana University, USA), and Faculty Coordinator for the Indiana University LL.M Program in Business and Comparative Law in Egypt.  Dr. Abdel Wahab is also a Founding Partner of Zulficar & Partners (Egypt), where he serves as the head of the Firm’s International Arbitration and Project Finance/PPP Groups.  Dr. Abdel Wahab is also the vice-president of the Cairo branch of the Chartered Institute of Arbitrators (CIArb) since 2005, Chair of the CIArb’s Technology Committee, and member of the CIArb’s Practice and Standards Committee, and Consultant to the World Bank.  Dr. Abdel Wahab regularly appears as counsel in highly complex and high value international commercial arbitration disputes, and regularly serves as arbitrator and expert in Ad-hoc and Institutional Arbitral Proceedings involving disputes across the commercial and investment spectrums. He is a listed arbitrator on numerous international roasters, and is a member of the United Nations Expert Group on Online Dispute Resolution. He is considered a leading international and regional expert on Online Dispute Resolution and one of the MENA region leading practitioners in International Commercial Arbitration, ADR, Information Technology Law, and Project Finance.  Dr. Abdel Wahab holds over fifty- five prizes for academic achievement, and is regularly published in learned international journals. He is a regular speaker in national and international conferences on International Commercial Arbitration, Private International Law, Online Dispute Resolution, Globalization, ADR and Ecommerce and IT Law.

Published October 2012
(Previously updated on November/December 2008)

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Table of Contents

1.     Introduction

2.     The Egyptian Legal System

3.     The Executive Power

3.1  The President

3.2  Cabinet

3.3  Ministries

4.     The Legislative Power: Parliament

4.1   People's Assembly

4.2  Jurisdiction

4.3  Bodies

4.4  Committees

5      Shura Council

5.1  Term of Membership and Activities

6      The Judicial Power

6.1  Court System

6.2  The Supreme Constitutional Court

6.3  Court of Cassation

6.4  Court of Appeal

6.5  Court of First Instance

6.6  Family Court

6.7  New Economic Courts

6.8  Egyptian State Lawsuits Authority

6.9  Public Prosecution

6.10        Administrative Courts (State Council)

7      Courts Jurisdiction

8      Arbitration

9      Enforcement of Judgments and Appeal

10    Enforcement of Arbitral Awards

11    Primary materials

12    Political Parties

13    Notable Parties

14    Governorates

15    Official Websites

16    Inter-Governmental Organizations

17    Law Faculties (Public Universities)

18    Important Libraries

19    Legal Guides

 

I.              Introduction

The Arab Republic of Egypt lies in the northeastern part of Africa. Whilst most of the country is located in Africa, the easternmost part, the Sinai Peninsula, is considered part of Asia and is the only land bridge between the two continents.  Egypt is divided into two unequal parts by the Nile River, and its terrain is mostly desert except for the Valley and Delta of the Nile, the most extensive oasis on earth and one of the main centers of habitation in Egypt. While Cairo is the largest city and the capital of Egypt, Alexandria, the second largest city, remains the principal port of Egypt on the Mediterranean. 

 

With an area of more than one million square kilometers (1,001,450 sq. km.), Egypt prides itself in having extensive borders: to the west is Libya, to the south is Sudan, to the northeast are Israel and the Gaza strip, to the north is Mediterranean Sea, and to the east is the Red Sea.

 

Egypt is the sixteenth most populous country in the world with a population of approx. 85,000,000 people, according to the July 2011 Central Intelligence Agency World Factbook estimate. Unsurprisingly, most of the population is concentrated near the banks of the Nile River, which amounts to about 40,000 sq. km, leaving about 961,450 sq. km uninhabited. This is due to the fact that the land near the banks of the Nile is the only arable agricultural land in Egypt. However, there are ongoing efforts toward expansion of urban development and populating the desert in order to reduce the heavy concentration of the population along the Nile.     

 

Egypt has been a coherent political entity since 3200 B.C. and was one of the first civilizations to develop irrigated agriculture, urban life, and large-scale political structures.

 

On the muddy banks of the Nile, the oldest political and administrative systems were established along with Egypt’s first central state. These systems have come a long way, and are now used in the modern institutions and administrative systems, and have also been used in the formulation of the constitution, parliament, responsible government and judicial authority since the 19th century. At the present time, Egypt is making history again by creating a new phase of economic development and reform, ascertaining political and democratic authority and practices, enhancing freedoms and adhering to the rule of law, and respecting human rights. 

 

II.            The Egyptian Legal System

The Egyptian legal system is built on the combination of Islamic (Shariah) law and Napoleonic Code, which was first introduced during Napoleon Bonaparte’s occupation of Egypt in 1798 and the subsequent education and training of Egyptian jurists in France.

 

The Egyptian legal system, being considered as a civil law system, is based upon a well-established system of codified laws.  Egypt’s supreme law is its written constitution. With respect to transactions between natural persons or legal entities, the most important legislation is the Egyptian Civil Code of 1948 (the “ECC”), which remains the main source of legal rules applicable to contracts. Much of the ECC is based upon the French Civil Code and, to a lesser extent, upon various other European codes and upon Islamic (Shariah) law, especially in the context of personal status.

 

Despite the non-existence of an established system of legally (de jure) binding precedents, previous judicial decisions do have persuasive authority. Courts are morally and practically bound (de facto binding effect) by the principles and precedents of the Court of Cassation for civil, commercial, and criminal matters, and the Supreme Administrative Court for administrative and other public law matters.

 

It is worth noting that the classical dichotomy of public and private law has resulted in the crystallization of a separate set of legal rules applicable to transactions involving the State (or any of its institutions, subsidiaries, or state-owned enterprises) acting as a sovereign power. This entailed the establishment of the Egyptian Council of State (Conseil d'Etat) by virtue of Law No.112 of 1946 as amended by Law No. 9 of 1949, which consists of administrative courts vested with the power to decide over administrative disputes pertaining to administrative contracts and administrative decrees issued by government officials. These courts apply administrative legal rules, which are not entirely codified; hence, because often no applicable legislative rules exist, the scope of judicial discretion is ample in light of the established precedents laid by the supreme courts.

 

On January 25, 2011, the Egyptian revolution (the “Revolution”) took place and transmogrified the country’s political landscape, deposing the former regime led by the now defunct National Democratic Party, which has been in power for many years. Eighteen days after the Revolution had started, and specifically on February 11, 2011, Mohamed Hosni Mubarak has, in light of the Revolution’s demands, resigned and the Supreme Council of the Armed Forces (“SCAF”) was entrusted with running the State’s affairs until such time when power is transferred to a democratically elected President. The presidential elections took place in May and June 2012 and resulted in the election of Dr. Mohamed Morsi as the first Egyptian president to be democratically elected following the Revolution.

 

Prior to the election of Dr. Morsi and following the Revolution,  SCAF has issued a constitutional declaration on February 13, 2011 (“Declaration 1”), whereby, inter alia, the following resolutions were taken:

 

  1. the Egyptian Constitution of 1971 was suspended,
  2. the SCAF shall be temporarily entrusted with running the State affairs for a period of six months or until the elections of the Parliament, Shura Council and President,
  3. dissolution of the then existing Parliament and Shura Council, and
  4. Constitution of a committee to amend some of the Constitution’s provisions.

 

A second constitutional declaration was issued by SCAF on March 30, 2011(“Declaration 2”) setting out the fundamentals of a temporary constitution (although not referred to as such), including the organization of the presidential elections, parliamentary elections and Shura Council elections.  Declaration 2 also organized in its sixtieth Article the mechanism for the drafting of a new constitution, where it states that the members of the Parliament and the Shura Council who are not appointed (i.e. who are elected) shall convene upon the invitation of SCAF to elect a constituent assembly composed of one hundred members to prepare a draft of a new constitution within a maximum period of six months from the date of its composition.  The said draft constitution shall then be presented to the people for public referendum within fifteen days, and shall enter into force from the date of the people’s approval in the referendum.  It is worth mentioning that Declaration 2 did not address the situation where the new draft constitution would be rejected in the referendum.   

 

By virtue of the supplementary constitutional declaration issued on June 17, 2012 (“Declaration 3”), it has been stipulated that SCAF shall assume the legislation authority until the election of the parliament and its exercise of its competencies. Declaration 3 further sets out that in the event of the existence of any obstacle hindering the constitution drafting committee from exercising its functions, SCAF shall have the right to appoint a new drafting committee. It is worth mentioning that Declaration 3 bestows on SCAF, the President, the Prime Minister, the Supreme Council for Judicial Entities or one fifth of the members of the drafting assembly the authority to submit a request to the said committee requesting the reconsideration of a provision which is believed to be in violation with the purposes or main principles of the Revolution and its principal goals or with the main principles of former Egyptian constitutions.

The Parliament had appointed the constitution drafting committee, which was later dissolved by virtue of a court judgment.  A new committee was formed by the Parliament and it is currently undertaking its drafting task. However, it is worth noting that Declaration 3 was revoked by the newly elected President on August 12, 2012, and the power to appoint a new drafting committee, in the event of existence of any obstacle hindering the constitution drafting committee from exercising its functions, is now vested with the President.

3. The Executive Power

3.1. The President

The President of Egypt is the Head of the State, and he was also, under the former Egyptian Constitution, the Supreme Commander of the Armed Forces and Head of the Executive Authority (the Egyptian Cabinet).  Hitherto, Declaration 2 does not give the President the same wide excessive authorities, where he/she is only stated to be the Head of the State and the Head of the National Defence Council. Following the revocation Declaration 3, it is expected that the President shall assume the customary powers normally afforded thereto under a presidential political system. It is also worth noting that on August 12, 2012, the President has appointed one new vice-president, who was a former vice-president of the Egyptian Court of Cassation.

 

Requirements to Hold Office

Article 75 of the former Egyptian Constitution clearly states that a President of Egypt must meet certain requirements. First, he must be an Egyptian national, born to Egyptian parents and enjoy both political and civil rights. Moreover, his age should not be less than 40 calendar years.  Declaration 2 sets out the same conditions, and adds that neither he/she nor his/her parents shall have acquired another nationality, other than the Egyptian nationality, and that he/she shall not have a foreign spouse.  

 

Term(s) of Office

According to the former Constitution, after being elected by the qualified special majority of the Parliament, the President serves six consecutive calendar years from the date the results of the plebiscite are announced. Once his term ends, he may be re-elected for other successive terms, as the former Constitution does not state any limit to the number of terms a president may serve.  Declaration 2, on the other hand, sets out a term of four calendar years that may only be renewed once for one successive term.

 

Powers

According to Declaration 2, the President appoints the Prime Minister, the Ministers and their delegates, appoints the appointed members of the People’s Assembly, calls the People’s Assembly and Shoura Councils to enter into normal session,  and issues laws or objects to them. The President further enjoys the right to represent the State domestically and abroad, pardon convicts and reduce the punishment thereof, and sign international treaties and agreements.

 

3.2. Cabinet

As the chief executive body of Egypt, the Cabinet consists of the Prime Minister and the Cabinet Ministers. In addition to its management of daily affairs and setting strategies for development and reform in all areas, it has a role in shaping the agenda of the houses of Parliament by proposing laws to Parliament, as well as amendments during parliamentary meetings. It may also make use of procedures to speed up parliamentary deliberations.

 

Articles (135) and (156) of the former Constitution clearly define the legal capacity of the Cabinet as follows:  

 

Declaration 2 sets out the legal capacity of the Cabinet as follows:

 

Traditionally, the Cabinet consists of:

 

 

3.3. Ministries

·       Ministry of Agriculture and Land Cultivation

·       Ministry of Education



[[1]] Prior to the 1980 amendment, Islamic Law (Sharia) was merely a source, amongst other sources, for legislative rules.

[[2]]An up-to-date comprehensive information on Laws and Regulations pertinent to economic, commercial, and business activities in Egypt could be found at: (1) The Egyptian Investment Portal (Economic Laws), (2) The Egyptian Investment Portal (other Laws and Regulations) where over 40 statutes could be downloaded or viewed online, and (3) The American Chamber of Commerce in Egypt has a very comprehensive website that provides up-to-date information on doing business in Egypt with useful information on all relevant statutes.

[[3]] That period is 90 days calculated from the date of notifying the award to the losing party.