Answer ... (a) Procedure, including evidence?
The parties to the arbitration are free to agree on the procedures to be followed by the arbitral tribunal, including the right to submit the proceedings to the rules prevailing under the auspices of any arbitral organisation or centre in Egypt or abroad.
In the absence of such agreement or in case of a gap in the applicable procedural rules, the arbitral tribunal may – without prejudice to the mandatory provisions of the Arbitration Law and basic principles of litigation – adopt or set out the procedures it considers appropriate. This is supported by the explicit wording of Article 25 of the Arbitration Law.
With respect to evidence, the parties are also entitled to choose the procedural rules of evidence that will govern the dispute. This is because the rules enshrined in the Law of Evidence (25/1968) do not constitute public policy and can thus be derogated from. If the parties fail to reach agreement, the arbitral tribunal will determine the rules of evidence it deems appropriate.
Although the Arbitration Law does not specify in detail the arbitrators’ powers in relation to evidence, it is unequivocally established that arbitrators enjoy wide discretionary powers in assessing the admissibility, relevance and probative value of the evidence submitted. In addition, arbitrators may order the parties to produce documents, exhibits or other evidence within such period as they deem appropriate. Further, the tribunal may order any evidentiary procedure it may deem necessary for the determination of the dispute, including the appointment of one or more experts to assist the tribunal with specific issues. It may also reverse any procedure it had previously ordered
(b) Interim relief?
According to Article 24 of the Arbitration Law, an arbitrator is empowered to order interim or conservatory relief, provided that this power is explicitly conferred upon him or her by the parties either in the arbitration agreement or thereafter. However, the Arbitration Law does not exclusively identify all interim measures that can be issued in respect of Egyptian-seated arbitral proceedings. Interim measures include:
- orders to stay liquidation of letters of guarantee; and
- orders that certain assets be placed under judicial wardship until issue of the final award.
Arbitral tribunals are also authorised to issue interim awards according to Article 42 of the Arbitration Law.
(c) Parties which do not comply with its orders?
Unlike state judges, arbitral tribunals do not have the authority of compulsion because arbitrators, as private individuals, do not represent the authority of the state. Accordingly, arbitral tribunals may not, for example, impose penalties on witnesses who fail to attend the hearing or refuse to answer questions posed to them. Further, they cannot compel a party to produce documents in its possession.
The arbitral tribunal can, however, seek the support of national courts by applying to the president of the court referred to in Article 9 of the Arbitration Law to:
- sanction any witness who refrains from attending before the tribunal or refuses to respond, by imposing the sanctions prescribed in Articles 78 and 80 of the Law of Evidence in Civil and Commercial Matters; or
- order the parties to the arbitration or third parties to produce documents in their possession that are material to the outcome of the dispute.
The tribunal may also draw the necessary inferences from the parties’ failure to comply with its orders without providing sufficient reasons.
(d) Issuing partial final awards?
The Arbitration Law provides for the arbitral tribunal’s powers to issue partial award(s) disposing of one or more monetary or other substantive issues between the parties (Article 42). A partial award is deemed final in respect of the claims it addresses. Partial awards can be subject to challenge only after the issuance of the final award.
(e) The remedies it can grant in a final award?
The award of remedies is a substantive issue that is subject to the applicable substantive law, in which the available remedies are provided and prescribed. There are no restrictions on the grant of remedies by the arbitral tribunal. However, the tribunal cannot grant the types of remedies that are exclusively exercised by the state courts – for example, any remedies to be granted under criminal, marital or employment law. By and large, the arbitral tribunal enjoys extensive powers to award any declaratory relief, specific performance, monetary compensation, interest and costs. Nevertheless, the arbitral tribunal is not entitled to award punitive damages and cannot grant any remedy that was not initially requested by one of the parties to the arbitration.
(f) Interest?
The award of interest is governed by the substantive law of the dispute. Accordingly, the powers of the tribunal to award interest will be grounded in the applicable substantive law. However, if the seat is Egypt and either the challenge of the award or its recognition and enforcement is sought, it is important to note that Egypt has public policy rules on the award of interest. Specifically, the contracting parties cannot agree on interest that exceeds 7% per annum; interest in excess of this will render the award void in part (ie, only in relation to the excess). This threshold applies to all contracts, save for:
- banking transactions; and
- commercial contracts under which one of the parties is financing the works of the other party, in which case they can agree on the lending rate announced by the Central Bank of Egypt (Article 50 of the Commercial Code).