Rules of evidence in Egypt

Evidence plays an integral part in any arbitration proceedings and is a crucial element on which arbitral tribunal rely on when issuing their arbitration award.

The Egyptian Arbitration Law, the general framework guiding international arbitration proceedings in Egypt, sets out the general principles, giving the parties the autonomy to choose, among other things, the institutional rules governing the proceedings and the rules or procedures that the parties consider most efficient in presenting their case.

The general principle under the Egyptian Arbitration Law, is that arbitral tribunals have significant power to govern the procedural aspect of the arbitral proceedings. It is further well established that parties have the freedom to choose the rules governing evidence procedures, whether with respect to witnesses and experts and their cross examination, or rules regulating discovery and production of documents. 

Parties have the autonomy to choose different international guidelines, such as the IBA Rules on the Taking of Evidence in International Arbitration, or the institutional rules, such the Cairo Regional Centre for International Commercial Arbitration, which set out general principles on taking evidence. 

The Egyptian law gives room to arbitral tribunals and parties to agree on the mechanism they consider best accommodating their needs in terms of evidence. Further, the Egyptian Arbitration Law grants arbitral tribunals wide discretionary powers in assessing the evidence submitted by the parties. Arbitral tribunals have the authority to admit, assess and weight the evidence submitted to it, and may also decide on evidence on record. Nonetheless, it should be clear that some elements with respect to the assessment of evidence falls outside of the authority of arbitral tribunals such as the assessment of forgery claims over evidence. Such claims must be referred to domestic courts as a matter of public policy. 

Arbitral tribunals also have the power to order a party to produce any documents or evidence it requires to render its decision. It may order the appointment of an expert to consider technical issues and may follow the conclusions of such expert or dismiss such conclusions. 

Further, the role of arbitral tribunals is supported by the domestic courts. Arbitral tribunals in general, do not hold defacto coercive authority over the parties. In light of this, the Egyptian Arbitration Law allows arbitral tribunals to seek the assistance of the Egyptian courts in taking measures against uncooperative parties who refuse to produce documents or to penalise uncooperative witnesses.  The tribunal may also draw negative inference that adversely affect the position of a party, if such party does not comply with the arbitral tribunal’s order. 

Flexibility in terms of evidence is an important pillar of international arbitration, and the Egyptian Arbitration Law is designed to honor such flexibility.

This article was first published in the Egypt edition - Legal Industry Review (LIR), edition no.2, August 2024.