Egypt / 27 February 2007 / Cairo Court of Appeal / Cimenco Egypt v Nickelson Industrial Co. / 43/122
| Country | Egypt |
| Court | Egypt, Cairo Court of Appeal |
| Date | 27 February 2007 |
| Parties | Cimenco Egypt v Nickelson Industrial Co. |
| Case number | 43/122 |
| Languages | English |
| Summary | On 4 August 1994, Cimenco Egypt (“Cimenco”) and Nickelson Industrial Co. (“Nickelson”) concluded a contract by which the latter undertook to supply an integrated system for unloading cement from ships. Article 9 of the contract provided for the application of English law and for the settlement of disputes arising from the contract by arbitration in London in accordance with the Rules of the International Chamber of Commerce (the “ICC Rules”). Nickelson initiated arbitration proceedings, claiming that Cimenco breached the provisions of the contract. Cimenco challenged the arbitral tribunal’s jurisdiction on the ground that the arbitration agreement was signed by an unauthorized person and was thus null and void for violation of rules of public policy in the Egyptian Commercial and Civil Codes. The arbitral tribunal rejected Cimenco’s jurisdictional objection in a partial award dated 23 March 2004. On 10 November 2004, a final award was rendered in Nickelson’s favor. By order dated 24 October 2005, the Chairman of the 7th Commercial Circuit at the Cairo Court of Appeal granted enforcement to the arbitral award. Cimenco challenged this order and requested that the enforcement of the arbitral award be suspended and the order be overruled, arguing that the order breached Article 58 of the Egyptian Arbitration Law by granting enforcement to an arbitral award which is in contradiction with Egyptian public policy. The Cairo Court of Appeal rejected Cimenco’s challenge on grounds unrelated to the NYC, holding that Cimenco did not follow the proper procedures mandated by Egyptian law. It began by explaining that requests for enforcement of decisions issued abroad are made before the Courts of First Instance pursuant to the provisions of the Code of Civil and Commercial Procedure (“Code of Procedure”), subject to the exception contained in Article 301 of said Code that international conventions apply even when they are in contradiction with the Code. Given that Egypt acceded to the NYC by Presidential Decree No. 171/1959, the NYC is applicable as is any other law of the Egyptian State. The term “rules of procedure” mentioned in the NYC is not limited to the Code of Procedure but includes all laws organizing proceedings such as the Arbitration Law which is a procedural law falling under the term “rules of procedure”. Given that the provisions of the Arbitration Law provide for less onerous conditions than those provided by the provisions of the Code of Procedure, the former should apply to the enforcement of foreign arbitral awards and requests for enforcement of foreign arbitral awards should be made before the Cairo Court of Appeal. |
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