ADR: Forced compromised or suggested resolution?

Question – I have a small question about the investments committee. You mentioned that anyone, whether a local investment or abroad who can apply on these committees. So, what is the difference between these committees and the commercial court? And another question, the enforcement of these decisions, is it really enforceable because we are facing a nightmare actually for the cases of our investors in Egypt and we want to know how we can enforce such decisions whether by the investment committees or a commercial court?

Panelist: Thank you for your question. There is a difference between these committees and commercial courts. These committees are out of court, and these are not in the court system. They are mediation or negotiation committees that negotiate with an investor reaching a makable compromised settlement, and it is enforceable. If you can reach this settlement with the government, you will have a written settlement or a written contract, and this settlement will be approved by the prime minister. Once it is approved by the prime minister, it is enforceable by the law. It is enforceable, and definitely, it is more flexible and quicker than the commercial courts. If you have a dispute with the Egyptian government or investor, it would be in the administrative court and still take time. You don’t have this flexibility. These committees can reach a compromise. So, reaching a compromise means that you have some concession. The government has to have some concession until you reach a compromise, and then you can have a settlement or a new contract and new terms which is not available in the court.

Question: Thank you very much, Miss Fatima. You have mentioned that 300 cases are decided per day per judge. Would it be possible to decide on 300 cases that are only for seeking out judgment? Are they fixing their cases? Are they deciding and issuing the orders of the decision?

Panelist: Yes, the usual or the typical court session would start from 9 in the morning and may last till 10:00 PM. And the judge in this session does not hear, or they do not have a hearing. They only sometimes read some papers; they issue decisions that are already prepared before the hearing. So, yes, it is 300 sometimes. This is a typical number of hearings of cases that can be decided in a day.

Question: Do you think a person has the capacity of 300 cases to write the decision?

Panelist: Yeah. Because it’s not hearing. They are not trial hearings. They do not have a trial you see on the television.

Another panelist: Many administrative decisions by the Egyptian judges taken are not critical decisions in the same hearing; he may delay.

Question: Sorry, I don’t have a question; I just have a small comment. I have been a litigator for more than 20 years, and during my practicing what I saw regarding the arbitration, in many cases, it’s just a waste of money and time. Why I’m saying that is because of the arbitrators there what they are doing. There are foreign arbitrators working at the cases which is related to your law without taking consultation from a local lawyer, and soon they will get the arbitral award and go to the court for enforcement. They will face a big problem, and the local lawyer will suffer and struggle to take that arbitral word to the safe hand. And mostly, they will fail through that because the arbitrator didn’t take into his consideration that there is privacy or there is a different understanding of the local law. And they don’t want to consult a local lawyer. I don’t know why because some of them are putting on their mind, they are experts in the local law as well as the local law. So, that’s my small comment on that, and I think if it goes like that, it will not reach a good arbitration award. But if the out-council and the in-council work are together side-by-side, I think only that time they will reach a very good arbitral award. Thank you!

Panelist: I completely agree with you. We’re now facing an arbitration decision that was issued under the ICC rules and in Paris, and it is again isn’t the government. And according to the Egyptian law and order for the arbitration agreement or arbitration clause to be enforceable against the government, the relevant minister should have been approved it in advance. And now we have a decision that can not be enforced in Egypt due to this specific procedural defect which; if they have consulted a local advisor before going to arbitration, we would have told him that you are facing a great risk of not being able to enforce the judgment in Egypt.


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