Answer ... Issues such as the constitution of the arbitral tribunal, the appointing authority and the timeframe for the appointment are subject to party autonomy. If the parties do not agree on how the arbitral tribunal is appointed, the provisions of the Arbitration Law will apply in this regard. On this note, if the arbitral tribunal is to be constituted by a sole arbitrator, the court of the seat will appoint the respective arbitrator at the request of either party. If the arbitral tribunal is to be constituted by three arbitrators, each party will appoint its co-arbitrator and the two appointed co-arbitrators will agree on the presiding arbitrator. If either party fails to appoint its co-arbitrator within 30 days of the date on which it is requested to do so, or if the two co-arbitrators fail to agree on the presiding arbitrator within 30 days of the date of the appointment of the co-arbitrators (whichever is later), the court of the seat, at the request of either party, will appoint the respective arbitrator (either the co-arbitrator or the presiding arbitrator). In making this appointment, the court will observe the conditions required by law. The decision by the court in this regard is not subject to appeal.

Answer ... The Arbitration Law provides that the arbitral tribunal must be composed of an odd number of arbitrators; otherwise, the award will be void. In the absence of agreement between the parties, the default number of arbitrators is three. The Arbitration Law does not require that arbitrators hold certain qualifications. The parties are free to nominate whoever they see fit as an arbitrator (even if he or she is not from a legal background), as long as he or she meets the requirements set forth under the Arbitration Law – that is, he or she must not:

• be a minor;
• have been deprived from exercising his or her civil rights because of a felony or disgraceful misdemeanour; or
• have been declared bankrupt or insolvent.

The arbitrator may be of any nationality, unless the parties have agreed otherwise.

Answer ... Any member of the tribunal may be challenged under the Arbitration Law if there are facts or circumstances that may raise justifiable doubts as to his or her impartiality or independence. The challenge request must be made within 15 days of the date on which the challenging party becomes aware of the relevant facts or circumstances on which the challenge is based and must incorporate the reasons for such challenge.

Answer ... If the challenge is accepted, a substitute arbitrator will be appointed to replace the original arbitrator under the same rules that apply to the appointment of arbitrators set out in Article 17 of the Arbitration Law (see question 8.1).

Answer ... In Egypt, arbitrators assume the same duties as state judges when they adjudicate the dispute before them. Given the private nature of arbitration, the Arbitration Law refers to multiple duties of the arbitrators, including the following:

• Impartiality and independence: The arbitrators must be and remain impartial and independent from the parties throughout the course of the arbitration. Successively, the arbitrators must accept their appointment in writing and disclose at the time of their appointment (or thereafter) any facts or circumstances which may raise justifiable doubts as to their independence or impartiality. They must also refrain from engaging in any ex parte communications with any of the parties to the arbitration.
• Due process: The arbitrators must afford each party a full, adequate and reasonable opportunity to present its case. Further, the arbitrators must:
• • act fairly;
  • treat the parties equally; and
  • ensure that the fundamental judicial safeguards are duly preserved.
• The arbitrators must endeavour to conduct the proceedings in an expeditious and cost-effective manner.
• The arbitrators must abide by the timeframe set by the parties for the issuance of the arbitral award.

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).

Answer ... Article 35 of the Arbitration Law explicitly refers to a party’s failure to participate in the arbitration (ex parte procedures). In such case, the arbitral tribunal may resume the proceedings and render an award based on the evidence produced before it, as long as it can be evidenced that the absent party was properly summoned and adequately served, and was given a full opportunity to present its case.

Answer ... Pursuant to Egyptian law, immunity is granted only by virtue of an explicit provision of law. The Arbitration Law does not grant arbitrators any sort of immunity; however, the arbitrators do enjoy a wide-ranging limitation of liability in connection with the proceedings. This is due to the relationship between the parties and the arbitrators, which is purely contractual. Of note in this regard is a public policy rule which provides that the exclusion of liability arising from wilful misconduct, gross negligence or fraud is null and cannot survive. Although it is unlikely in practice, a tribunal could be held liable for these reasons or acts, irrespective of the magnitude of limitation set out in any institutional arbitration rules or agreed by the parties.