ABSTRACT
Arab legal systems have recognized arbitration only recently.1 Previously, Arab state constitutions allocated the dispute settlement process to the courts. Recent developments in Arab constitutional and legislative systems and in Arab countries are the main reason for adopting arbitration as a means of settling disputes. Many Middle Eastern and North African (MENA) countries began to accept arbitration as a dispute settlement mechanism, particularly over the last 20 years, in light of their existing constitutions. For example, in Egypt, arbitration used to be conducted pursuant to the Code of Civil and Commercial Procedures, but after the promulgation of the new Egyptian Arbitration Act in 1994, the Egyptian legal system accepted the concept of a parallel mechanism for dispute settlement within the same constitution, leading the disputing parties to a final, binding and enforceable award. A considerable debate arose in the Egyptian judiciary and in the Arab doctrine which rejected arbitration during the 1980s and early 1990s. Concerns were raised regarding arbitration as a dispute settlement mechanism in Egypt in light of the 1971 constitution. When the Egyptian legislature promulgated the Arbitration Act No. 27 of 1994, there was a new interpretation of the current legislative progress in light of the 1971 constitution. However, it is not the constitution which draws up the legal framework for arbitration in the Middle East region but the interpretation of the legislation. In Egypt, the leading legal system in the MENA region, several interpretations were given by the General Assembly for Legal Opinion and Legislation
of the Egyptian Conseil d’Etat which referred to Article 10 of the Conseil d’Etat. Legislation No. 27 of the Egyptian constitution stipulates that the Egyptian Conseil d’Etat is the only authority in the Egyptian judiciary which has the jurisdiction to make settlements in administrative disputes. Among these administrative disputes are the administrative contracts disputes. Several interpretations of the constitutional ban stipulated by Article 172 became an important issue in the Arab legal community. The importance of this issue justifies the exclusive jurisdiction of the Egyptian judiciary regarding dispute settlements of administrative contracts, prohibiting any dispute mechanism from exercising its power to issue final, binding and enforceable awards. This interpretation prevailed for many years in the Egyptian and other legal systems in the region. However, judicial opinions in 1989 and in 1993 pointed to the fact that Article 10 of the Egyptian State Council Law No. 47 of 1972 had to be interpreted in the light of Article 172 of the Egyptian constitution of 1971. This interpretation emphasizes the importance of the concept of exclusive jurisdiction of the State Council to exercise judicial review upon administrative contracts. This exclusive jurisdiction was exercised pursuant to Article 10 which was promulgated by the Egyptian Parliament in 1972 and in the light of the 1971 constitution.2 The purpose of this article is to draw the line between the Egyptian State Council courts’ jurisdiction on one hand, and the civil and commercial courts’ jurisdiction on the other. Article 10 was promulgated to create a distinction between the administrative courts’ jurisdictions and civil and commercial disputes, which can be referred to ordinary courts.3
