Page images
PDF
EPUB

access at all times to any other place wherein a foreigner may be detained. He shall notify the Minister of Justice of all irregularities of which he becomes aware, and shall make to him any other communications called for in the exercise of the supervision for which he is responsible.

ARTICLE 23

The “Ministère public” shall intervene in all matters involving questions of personal status or nationality. It may furthermore intervene in matters concerning minors or persons under an incapacity, and also in all other cases specified in the Code of Civil Procedure.

It shall further be empowered to order and to have carried out any measures which it may consider proper to safeguard the interests of minors or of persons under an incapacity.

ARTICLE 24

The parquet shall supervise the administration of judicial funds and the special deposit and consignment fund.

It shall also supervise the clerks of the court and the bailiffs, who shall be under the exclusive control of the Presidents of the Court and Tribunals.

III. COMPETENCE
ARTICLE 25

For the purposes of determining the competence of the Mixed Tribunals, the word “foreigners” shall be taken to mean nationals of the High Contracting Parties to the Montreux Convention concerning the Abolition of Capitulations in Egypt, together with nationals of any other State that may be specified by decree. No Egyptian national may avail himself of the protection of a foreign Power. Nationals of Syria and of the Lebanon and also those of Palestine and Trans-Jordan shall come within the competence of the National jurisdiction as regards both civil and criminal matters. Foreign nationals (citizens, subjects and protected persons) belonging to religions, confessions or sects for which there exist Egyptian Tribunals dealing with matters of personal status, shall continue to have their cases heard by the said Tribunals in such matters under the same conditions as in the past. The nationals specified above shall, moreover, have the right to opt between the Mixed jurisdiction and the National jurisdiction in civil and commercial matters. When one of the said nationals is summoned in respect of either of the said matters before a National Tribunal, in a case in connection with which he has not previously accepted the competence of the National jurisdiction, he shall, if he wishes to challenge the competence of the Tribunal before which the case is brought, do so by registered letter or by service of a writ, or at the latest at the first hearing, failing which the Tribunal shall be competent.

(A) Competence in Civil and Commercial Matters

ARTICLE 26

The Mixed Tribunals shall take cognizance of all civil and commercial suits between foreigners or between foreigners and parties subject to the jurisdiction of the National Courts. Nevertheless, the National Tribunals shall be competent in the aforesaid matters in respect of any foreigner who agrees to submit himself to their jurisdiction. Such submission may result from a clause attributing competence or from the fact (1) that the foreigner has himself initiated the proceedings before the National Courts; or (2) that he has not challenged the competence of the said courts before the pronouncement of a judicial decision in proceedings wherein he has appeared as defendant or as an intervening party. Submission to the jurisdiction of a court of first instance entails submission to the jurisdiction of superior courts of the same category.

ARTICLE 27

The Mixed Tribunals shall also take cognizance of suits and matters relating to personal status in cases wherein the law to be applied according to the terms of Article 29 is a foreign law.

ARTICLE 28

Personal status comprises: suits and matters relating to the status and capacity of persons, legal relations between members of a family, more particularly betrothal, marriage, the reciprocal rights and duties of husband and wife, dowry and their rights of property during marriage, divorce, repudiation, separation, legitimacy, recognition and repudiation of paternity, the relation between ascendants and descendants, the duty of support as between relatives by blood or marriage, legitimation, adoption, guardianship, curatorship, interdiction, emancipation, and also gifts, inheritance, wills and other dispositions mortis causa, absence and the presumption of death.

ARTICLE 29

The status and capacity of persons shall be governed by their national laws.

The fundamental conditions of the validity of marriage shall be governed by the national law of each of the parties thereto. In matters concerning relations between the husband and wife, including separation, divorce and repudiation and the effects thereof upon their property, the law to be applied shall be the national law of the husband at the time of the celebration of the marriage. Reciprocal rights and duties as between parents and children shall be governed by the national law of the father. The duty of maintenance shall be governed by the national law of the party against whom the claim is made. Matters relating to filiation, legitimation, and the recognition and repudiation of paternity shall be governed by the national law of the father. Questions relating to the validity of adoption shall be governed by the national law of the adopting party as well as by that of the adopted person. The effects of adoption shall be governed by the national law of the adopting party. Guardianship, curatorship and emancipation shall be governed by the national law of the person under the incapacity. Inheritance and wills shall be governed by the national law of the deceased or of the testator. Gifts shall be governed by the national law of the donor at the time of the gift. The rules of the present article shall not affect provisions relating to the legal position of immovable property in Egypt.

ARTICLE 30

Should the nationality of a person be unknown, or should he simultaneously possess, under the laws of several foreign States, the nationality of each of them, the judge shall decide what law shall be applied.

Should a person simultaneously possess the nationality of Egypt under Egyptian law and of one or more foreign States under the law of the State or States concerned, the law to be applied shall be the Egyptian law.

ARTICLE 31

The term “national law” shall be understood to mean the municipal law of the country in question to the exclusion of the provisions of private international law. ARTICLE 32

Rules of procedure prescribed by a foreign law shall not apply in so far as they are incompatible with Egyptian rules of procedure.

ARTICLE 33

Subject to the provisions of Articles 34, 35, 36 and 37, the competence of the Mixed Tribunals shall be determined solely by the nationality of the parties directly concerned, without regard to any mixed interests which may be indirectly concerned.

ARTICLE 34

Companies of Egyptian nationality already incorporated, in which there are substantial foreign interests shall, in their suits with persons subject to the jurisdiction of the National Tribunals, be subject to the jurisdiction of the Mixed Tribunals unless the terms of their incorporation contain a clause attributing competence to the National Tribunals, or unless they have accepted the jurisdiction of the said courts in accordance with Article 26.

ARTICLE 35

The Mixed Tribunals shall similarly be competent in matters arising out of the bankruptcy of a person subject to the jurisdiction of the National Tribunals if one of the creditors party to the proceedings is a foreigner. ARTICLE 36

The creation of a charge in favor of a foreigner over immovable property, whoever may be the person in possession or the owner thereof, renders the Mixed Tribunals ipso facto competent to determine the validity of the charge and all its consequences up to and including the forced sale of the said property and also the distribution of the monies realised thereby.

ARTICLE 37

The Mixed Tribunals shall not take cognizance of an action not in itself falling within their competence, even if it arises as subsidiary to an action already constituted before them. Nevertheless, they shall take cognizance of the said subsidiary action when the jurisdiction before which it has been brought, decides in the interests of justice, to remit it to be pleaded before them.

The Mixed Tribunals may, if they consider that the interests of justice so require, remit to be pleaded before the National Courts an action instituted before them, which is subsidiary to a principal action already instituted before the said National Courts.

ARTICLE 38

Suits by foreigners against a Wakf involving a claim to the ownership of immovable property of the said Wakf shall not be submitted to the Mixed Tribunals. Nevertheless, the said Tribunals shall be competent to give judgment on claims brought in respect of legal possession, whoever may be plaintiff or defendant.

Furthermore, suits directly or indirectly concerning the constitution of a Wakf or the validity, interpretation or application of its clauses, or the appointment or removal of the Nazir shall not come within the competence of the Mixed Tribunals.

The Mixed Tribunals may, nevertheless, declare void as against creditors the constitution of property as a Wakf in fraud of the rights of such creditors.

ARTICLE 39

When, in the course of proceedings, an issue is raised concerning the personal status of a party coming in that respect within the jurisdiction of some other court, the Mixed Tribunals shall, if they consider it necessary to secure a preliminary decision upon that issue, suspend judgment on the main issue and prescribe a time limit within which the party against whom the interlocutory plea has been raised must have the matter finally decided by the competent court. If such a preliminary decision is not considered necessary, they shall proceed to give a decision on the main issue.

ARTICLE 40

The cession of a right to a foreigner, the citing of a foreigner as third party, or a fictitious assignment to a foreigner shall not render the Mixed Tribunals competent to decide suits coming within the competence of the National Courts if the object of the said cession, citation as third party or fictitious assignment is to remove such litigation from the cognizance of the National Tribunals. Any cession of a right to a foreigner agreed to during the course of the proceedings shall be presumed to have been made with the above object. The Court may, however, in exceptional cases, admit proof to the contrary. Subject to the provisions of the preceding paragraph, the competence of the Mixed Tribunals cannot be challenged on the ground that the assignment is fictitious where the assignment is made by means of the endorsement of a negotiable instrument. The irregular endorsement of a negotiable instrument to a foreigner, or its endorsement to a foreigner for purposes of collection, shall not give competence to the Mixed Tribunals in the case of suits that are within the competence of the National Courts.

« PreviousContinue »