CHAPTER THREE Conflictual Methodology in Egypt

Introduction Settlement of conflict of laws in Egypt is influenced by that of France namely in its adoption of Savigys paradigm.1 This is the conflictual methodology and which also prevails in most of the Arab World. Introduction of this methodology will include analysis of the concept of conflict rule, its sources and evaluation. I. Analysis of the Concept of Conflict Rule Analysis of the conflict rule includes its role, technical terminology, elements and characteristics. A. Role of Conflict Rule When a private relation is affected by a foreign element, the Egyptian court will look beyond the Egyptian law even if the foreign laws connected with the case are in conflict with the Egyptian law. The Egyptian court will decide which law is appropriately applicable by recourse to the Egyptian conflict-oflaw rules or simply the conflict rules. These rules are also known under the terminology of choice-of-law rules, namely in the countries of common law traditions. In French, these rules are called rgles de rattachements and which might be
1

See supra p. 44.

55

Predetermination of Lex Causae

translated to rules of attachment. This terminology focuses on the role of these rules in the attachment of the relation to its most connected law. It is the terminology which prevails in the Arabic literature on the subject. Since the conflict rule ascertains the most appropriate legal system among those that are connected to the relation,1 many jurists correctly criticise the usage of the qualification of conflict. According to them this is not a correct terminology since this word suggests struggle between the connected laws, while this is not actually true. In fact, international private relations lead to a jam and not conflict of laws.2 Then, the role of the conflict rule is not to settle struggle between different sovereignties, but rather determine which among the connected laws is the most convenient (appropriate, suitable or apt) to regulate the case at hand. This is mainly decided by the legislator, the creator of the conflict rule, however it might be made by the court, this is done when the legislator adopts a flexible style of draft for the conflict rule giving a discretionary power to the court in the search for the convenient law.3 B. Technical Terminology of Conflict Rules Conflict rules are expressed in terminology of juridical concepts in Latin; the most important of which are the term lex fori vs. the lex causae. 1. Lex Fori The lex fori, and which is sometimes said to be the law of the forum, is the substantive national law of the court. Therefore, when the conflict rule leads to the application of the law of the court, the applicable law will be that of the lex fori.
See Abdulal, op. cit. p. 4. This is supported by the fact that Huber, the inventor of the term, bases his theory on international comity and not conflict of sovereignties. See Sadek, op. cit. p. 5. 3 See particularly on complex conflict rules infra p. 60.
1 2

56

Conflictual Methodology in Egypt

2. Lex Causae The conflict rule will lead to the determination of the applicable law; this is the lex causae. This terminology denotes the law, usually but not necessarily foreign, and which applies to the case. Hence, the lex causae can either be a domestic or foreign law. For example, in Egypt capacity of the person is subject to his law of nationality; the law of nationality is the lex causae, it will be the Egyptian law if the person is Egyptian and it will be foreign when this person is alien. The lex causae may specifically be defined as follows: Lex domicilii, this is the law of the place of the domicile (in Latin, domicil). Lex executionis, this is the law of the place of performance of contract. Lex loci actus, this is the law of the place where a legal act took place. Lex loci arbitrii, this is the law of the place where the sessions of arbitration are taking place. Lex loci celebrationis, this is the law of the place where a marriage is celebrated. Lex loci contractus, this is the law of the place where a contract is made. Lex loci damni, this is the law of the place where the injury occurs. Lex loci delicti, this is the law of the place where a tort is committed. Lex loci solutionis, this is the law of the place where a contract is to be performed or where a debt is to be 57

Predetermination of Lex Causae

paid. Lex incorporationis, this is the law of the place of incorporation and it governs assignments of registered shares. Lex patriae or lex nationalis, this is the law of the nationality. Lex personae, this is the law of the person and which can be the law of his domicile (lex domicilii) or nationality (lex patriae or lex nationalis). Lex proctectionis, this is the law under which legal protection of an intellectual property is conferred. Lex religionis, this is the law of religion. Lex situs or lex rei sitae, this is the law of the place where a property is situated. Lex validatis, this is a law connected with a transaction or occurrence and is distinguished by the fact that it validates such transaction or occurrence. Locus regit actum, this means that formality is subject to the law at the place where it is done.

C. Elements of Conflict Rules Jurists unanimously agree to the analysis of conflict rules into two elements legal category and connecting factor. However, substantial number of jurists add to such elements, the applicable law (lex causae) itself. 1. Legal Category The legal category is the legal concept that includes the group

58

Conflictual Methodology in Egypt

of facts, events and transactions that have some qualifications in common; e.g., the essential elements of contracts, their effects and termination belong to one legal category and which is contract. This is while: possession, ownership and other real rights are subject to the legal category of status of property. 2. Connecting Factor Mechanism of the conflict rules relies heavily on its connecting factor. The concept and types of conflict rules, from the perspective of their connecting factors, deserve particular attention in conflict of laws study. a. Concept The connecting factor is some outstanding fact and which establishes a natural connection between the legal category and a particular system of law. This factor is taken from any of the elements of the relation, i.e., its parties, subject-matter or cause.1 In principle, the elected element (to be a connecting factor) will be that which explores the law in which the relation enjoys its centre of gravity.2 This for example is realised by the nationality and domicile of persons (i.e., the parties) in determining applicable law to personal status matters. Also, it is achieved by the place of property (i.e., subject matter) in determining applicable law to property rights and the place of occurrence of the unlawful act (i.e., cause) in determining applicable law to tort.3 Determination of the connecting factor will then require pure scientific analysis in order to determine which element of the category of relations is the most indicative to its closest law (centre of gravity). This explains why many of the conflict rules are identical among the different legal systems.4 However, this does not mean that the conflictual process is completely disassociated from social, economic, religious and political
See El-Haddad, op. cit., p. 25. See Abdulal, op. cit., p. 11. 3 Ibid. p. 12. 4 Ibid.
1 2

59

Predetermination of Lex Causae

influence.1 For example, over-populated countries favour nationality as a connecting factor for personal status matters, while the countries which imports population prefers the domicile. Also, countries with poor observance of the equality between man and woman (regretfully like Egypt) do not care much in discriminating against woman. This happens for example in Egypt with its application of the lex patriae of husband at the time of celebration of marriage to the effects of this marriage (e.g., a solution abandoned by Germany in observance of the equality principle2). b. Types of Conflict Rules from the Perspective of Connecting Factors From the perspective of their connecting factors, the conflict rules can either be simple or complex. i. Simple Conflict Rule A conflict rule is usually simple.3 A simple conflict rule contains only one connecting factor. In such case, the conflict rule is said to exercise pure localisation.4 Examples for simple conflict rules are the cases of capacity, effects of marriage and tort. Capacity is subject to the lex patriae of the person.5 Effects of marriage are subject to the lex patriae of husband at the time of celebration of marriage.6 And, tort is subject to the lex loci delecti.7 ii. Complex Conflict Rule The conflict rule will be complex when it will contain more than one connecting factor. Complex conflict rules are either cumulative or alternative.
Ibid. See El-Haddad, op. cit., pp. 29-31. 3 Ibid. p. 13. 4 Ibid. 5 Article 11(1) of the Civil Code. 6 Article 13(1) of the Civil Code. 7 Article 12(1) of the Civil Code.
1 2

60

Conflictual Methodology in Egypt

Cumulative Conflict Rule A conflict rule will be cumulative when it contains more than one connecting factor applying cumulatively.1 Here the relation will be subject to more than one law. An example for such a conflict rule is subjecting the essential validity of marriage to both spouses national laws.2 Alternative Conflict Rule A conflict of rule will be alternative when it contains more than one connecting factor,3 however only one of them can alternatively be applicable. However, the alternatives can be equal or in hierarchical order. Equal Alternatives Equal alternatives exit when application of any of the multiplied connecting factors is left to the court and which will search for the most suitable law according to any of the alternative connecting factors.4 This is also called search for the lex validatis, i.e., the law that validates the relation. Also, this will make the conflict rule untraditionally result-oriented rule.5 The best example for a complex conflict rule with equal alternatives in Egypt is the conflict rule for formality. In Egypt formality (for inter vivos legal acts) will be valid as long as it conforms with any of the following laws: the law at the place of act (i.e., lex locus actus), the law applicable to substance (i.e., lex causae), the law of common domicile of parties (i.e., shared lex domicilii) or the law of their common nationality (i.e., shared lex patriae).6 Alternatives in Hierarchy The alternative localisations of the complex conflict rule are
See El-Haddad, op. cit., p. 25. Article 11(1) of the Civil Code. 3 Ibid. p. 26. 4 Ibid. 5 As we will see later (infra p. 62), usually a traditional conflict rule is neutral, i.e., not concerned with the actual convenience of the lex causae. 6 Article 20 of the Civil Code.
1 2

61

Predetermination of Lex Causae

sometimes not subject to a discretionary power of the court; they might instead be in hierarchy order.1 An example for the hierarchy order is the Egyptian conflict rule for the determination of applicable law to contracts (not relating to immovable) (i.e., lex contractus). The applicable law will be in the following hierarchical order: the law chosen by the parties (express or implied); the law of common domicile (i.e., shared lex domicilii) or the law of place of the conclusion of contract (i.e., lex loci actus).2 3. Applicable Law (Lex Causae) According to modern jurists, the applicable law, and which is determined by the conflict rule, i.e., the lex causae, is an element thereto.3 However, we do not support this doctrine because it will lead to giving the applicable foreign lex causae a national character while this law is foreign.4 D. Characteristics of Conflict Rules Conflict rules are domestic, neutral, indirect and bilateral. 1. National (or Domestic) Conflict rules are voluntarily chosen by a given state for the regulation of cases (legal categories) that involve a foreign element. Therefore, conflict rules constitute a particular national or domestic law. Each State is said to have its own conflict rules. This also applies even when a conflict rule is adopted by an international convention. Here, the conflict rule will also be national because it obtains its normative character (i.e., obligatory force) from the lex fori within which it is incorporated.5

See El-Haddad, op. cit., p. 27. Article 19(1) of the Civil Code. 3 See for example, Abdulal, op. cit., p. 14 and El-Haddad, op. cit., p. 27. 4 See on the status of foreign lex cuasae in domestic court, infra chapter
1 2

23.
5

See Abdulal, op. cit., p. 11, footnote 1.

62

Conflictual Methodology in Egypt

2. Neutral The applicable law is the most appropriate law from the point of view of a legislator of certain State, and this is why the conflict rule is said to be neutral. Activation of the conflict rule is satisfied once the applicable law is determined. This is regardless to the actual convenience of the applicable law to the issue in dispute. This particularly applies within the simple conflict rule; complex conflict rules with alternative connecting factors are however not neutral, they are result-oriented.1 Here the suitability of the lex causae is not left to the legislator to decide; it is the search of court in a case-by-case analysis according to a teleological methodology. 3. Indirect The conflict rule does not give a direct solution to the dispute. It does not give a substantive solution; then it is not a substantive rule. It is an indirect rule. Some French jurists use a humorous example to describe the indirect character of conflict rule. They say that the conflict rule resembles the inquiry office at the railway station; it may help a passenger to learn the platform at which he will find his train, but it does not itself get this passenger to his point of destination. 4.Bilateral Conflict rules do not necessarily indicate a foreign law; they may lead to the application of the domestic law; that is the law of the forum (i.e., lex fori). Hence, conflict rules are said to be bilateral. II. Sources of Conflict Rules Sources of conflict rules differ from one country to another. Generally speaking, modern legal systems tend to codify con-

See supra p. 83.

63

Predetermination of Lex Causae

flict rules into legislative texts.1 This has taken place in Egypt (and most of the Arab World countries), Canada, Louisiana (USA) and Switzerland. This chapter will concentrate on the sources of conflict rules in Egypt and the international unification of conflict rules. A. Sources of Conflict Rules in Egypt Unless the case of conflict of laws is not regulated by a substantive rule2 or being subject to Egyptian lois de police,3 the Egyptian court will settle this case by resort to Egyptian conflict rules.4 Therefore, the sources of the Egyptian conflict rules are domestic.5 This will be discussed in its both general context and points of particularity. 1. General Context According to majority of Egyptian scholars, sources of law are of two different groups. First, the formal sources of law, these are the sources that have been determined by the legislator (Article 1 of the Civil Code). In a consequential order, they are: legislation (this is the primary formal source), usages, principles of Islamic sharia and principles of equity (these are the subsidiary sources). Second, the informal sources of law and which play an interpretative role without being authoritative. These sources are: case law and doctrine. Particularly, the case law is understood differently than that of the common law. Here it simply denotes constant and repeated unified interpretation of law in courts regardless to their level in the
1 Quebec Civil Code 1991 (Articles 3076-3168); UK The Contracts (Applicable Law) Act 1990; The UK Private International Law (Miscellaneous Provisions) Act 1995; Swiss Private International law (Dec. 18, 1987) and the German Act on Revision of Private International Law (Jul. 25, 1986). 2 See infra p. 85. 3 See infra p. 89. 4 See Abdulal, op. cit., pp. 25-38. 5 This explains why the terminology of Private International Law is criticised. It is not correct since it implies that this law is international and then enjoys international sources. However, some Egyptian scholars do not exclude possibility of international sources for Egyptian conflict rules. See for example, ibid. p. 25.

64

Conflictual Methodology in Egypt

hierarchy of the judicature (it is called in French jurisprudence). The crucial question here is whether the sources of the Egyptian conflict rules are identical to those of other traditional Egyptian branches of (private) laws? The answer is certainly no; sources of the Egyptian conflict rules have aspects of particularity due to the role of the general principles of private international law mentioned under Article 24 of the Egyptian Civil Code. 2. Particularity The Egyptian legislator took into consideration that its legislative conflict rules, namely in Articles 10-23 of the Civil Code, might not be conclusive and it therefore expressly provided that any lacuna will be supplemented by resort to the general principles of private international law (Article 24 of the Civil Code).1 This is the particular aspect of the sources of conflict of laws in Egypt. However, what is meant by such principles? How shall these principles affect the sources of the Egyptian conflict rules? And, when shall resort to these principles be made? a. What is Meant by General Principles of PIL? The problem with the words general principles is that they are used in different meanings. They might be used to determine the philosophy of law or the basic rules of law in a department of law. In the first sense, the general principles are not rules, properly speaking; they are a mere methodology that can be used to create a solution. For example, you may say that the general principles shared between the Egyptian conflict rules are their adhering to the philosophy of conflict of laws found in Savignys doctrine. Then, if you will adopt this interpretation of the general principles, it will mean that the Egyptian court will have to create a
This is also followed by many Arab Civil Codes: Syria (Article 26), Libya (Article 24), Sudan (Article 13) and Iraq (Article 30). See Abdulal, op. cit., p. 26.
1

65

Predetermination of Lex Causae

conflict rule within the parameters of Savignys doctrine regardless to the actual situation in comparative law. However, under the second interpretation, the general principles are actual rules but they happen not to exist in the legal system of the court, they are shared by other modern legal systems of the world. It is this second meaning that prevails in the Egyptian conflict of laws writings.1 Therefore, when the Egyptian court faces a legislative lacuna in the Egyptian legislation, it will be bound to create a new conflictual solution through adopting the most common conflict rule prevailing in modern legal systems of the world. Then, the general principles of the Private International Law are those available at the time of settlement of dispute.2 They are not restricted to those elaborated by Egyptian doctrine and case law; they extend to comparative doctrine and case law of the countries which belong to our legal system.3 This may also include the case law of the international courts4 and arbitral tribunals.5 These principles should be in harmony with the Egyptian legal system.6 It has to be noted in this regards that here we are talking about an individual solution created by a court of law. It is not a conflict rule, because it is neither abstract nor general. However, if this solution is subsequently and constantly observed by other Egyptian courts, regardless to their level in the hierarchy of the judicature, this will give the individual solution the quality of rule; it will only then be abstract and general. It will be a conflict rule created by case law. In our point of view, both cases: the solution and rule are judicial because they have emerged from courts activity and certainly they cannot be qualified legislative because they are not

Ibid. p. 27. Ibid. 3 Ibid. p. 28. 4 Ibid. p. 38. 5 International Commercial Arbitration has elaborated transnational conflict case law. See our thesis, op. cit., p. 335. 6 See Abdulal, op. cit., p. 28.
1 2

66

Conflictual Methodology in Egypt

the creation of the legislator.1 It is true that the role given to the courts in the elaboration of judicial conflict rules, if allowed, will be against strict interpretation of the principle of separation between powers, namely between the legislative and judicial authorities. This will also be against the traditions in Civil law system where courts are not sources of rules of law, unlike the situation in the countries of the common law traditions where this might exist under the principle of stare decisis. 2 According to this principle, an inferior court has to follow the clear findings in law of a superior court of the same jurisdiction. In common law, supreme courts and inferior courts may also hold themselves bound by their own decisions. However, modern doctrine in Civil law countries recognises a creative role for courts in the field of sources of law. This is at least in case of repeated and observed line of interpretation made by these courts.3 This is called in French jurisprudence.4 This is supported by the fact that this creative role by courts is not strange in the Civil law countries where courts play a vital role in the elaboration of administrative law rules. This for example is the situation of the courts of the State Council in Egypt.5 In addition, most of the French conflict rules are courtsmade and France is the leader for the Civil Law countries.

1 In contrary with this analysis, Prof. Abdulal states that "when the judge gives existence to an attachment rule [i.e., conflict rule] not provided for, the source for this rule will be the order of the legislator implied in Article 24 Civil. The rule arrived to by judge is then a rule of legislative source discovered by court". (Translation by the author). Ibid. p. 37, footnote 1. 2 This is the abbreviation for the full Latin maxim, stare decisis et non quieta movere, meaning stand by the decisions and do not disturb the calm. See Teltleys Glossary of Conflict of Laws, op. cit. 3 See particularly in Arabic: Samir A. Tanago, The General Theory of Law 493 (Alexandria: Monsha'it El-Ma'rif 1986). 4 Ibid. 5 Ibid.

67

Predetermination of Lex Causae

b. What is the Effect of General Principles of PIL on Sources of Conflict Rules? Unlike other Egyptian domestic laws, the Egyptian court will have to resort to the general principles of private international law after finding a lack of legislative provision. Since the general principles of private international law are determined by court after a research in comparative law, the role of the Egyptian case law and doctrine will therefore be of a particular importance. This role can be like that of a formal source of law, thought it is not properly speaking. This is because the court will in practice make first resort to case law and then doctrine for support. Generally, activating the general principles of private international law restricts an expected role for other traditionally subsidiary sources of law, i.e., usages,1 Islamic sharia and equity. Particularly, though the general principles of Islamic sharia can be useful in elaborating convenient solutions for international private disputes. However, such solutions will most properly be of substantive (i.e., direct) nature. It is doubtful that Islamic sharia would be useful in creating conflict rules, these latter rules pertain to a methodology that is historically subsequent in appearance to Islamic sharia.2 Hence, though the general principles of the PIL may include doctrine and case law, in our opinion they should not be mixed with these sources.3 While the first is a methodology, the second are variants tools for the activation of such methodology.

1 Usage (or custom) played an important role in the adoption of the party autonomy rule in matters of international contracts and application of the rule of locus regit actum in the times of the Egyptian Mixed courts. See, Abdulal, op. cit., p. 34. However, some Egyptian scholars defend the role of international usage in matters of conflict of laws even in modern times. See, Riyad and Rashid, op. cit., p. 44. Of course the role of usage here is different than its role in creating substantive rules. See infra p. 88. 2 See supra p. 34. 3 Contra Abdulal, op. cit., p. 38. This is at least with the international usage.

68

Conflictual Methodology in Egypt

c. When Shall Resort to General Principles of PIL be made? According to the express words of Article 24, resort to the general principles of private international law is to be made when no provision is available for a case of conflict of laws in its previous Articles (i.e., Articles 10-23 of the Civil Code). A strict interpretation of this provision means that the resort will be restricted to the cases of lacuna and not to the cases of particular nature and which requires specific conflict rules. However, modern Egyptian doctrine does not follow such restrictive interpretation. Therefore, the general principles of PIL will undoubtedly be applicable to the cases of conflicts and which lack express conflict rules, e.g., nullity of marriage, some aspects of filiation, adoption and custody of children. And, this will also be applied to cases of conflict of laws that require particular localisation different than the already available under a general conflict of rule.1 This exists for example with the contracts of employment, agency, banking, consumers and e-commerce. They deserve particular localisation different than that which is available under the general conflict rule for contracts (Article 19(1)). It is worth to mention that the general principles of PIL should not be ipso facto activated when the Civil Code lacks a needed conflict rule. It should be taken into consideration that though most of the Egyptian conflict rules are legislatively codified in the Egyptian Civil Code (Articles 10-28),2 other legislative conflict rules can be found under other statutes. These for example are the cases of: Trade Act No. 17 of 1999 and Arbitration Act No. 27 of 1994. Thus, the general principles of PIL are subsidiary sources of law to legislation in general, and not just to the Civil Code.

See Abdulal, op. cit., p. 27. They are not restricted to conflict rules, they also regulate the general theories of conflict of laws: Characterisation (Article 10), Delegation (Article 26), exclusion of Renvoi (Article 27) and Public Policy (Article 28).
1 2

69

Predetermination of Lex Causae

B. International Unification of Conflict Rules Conflict rules are not identical among the different countries of the world leading sometimes to a conflict between the different conflict of law systems. This problem is sometimes solved by the cooperation among the different countries through the creation of unified conflict rules by international conventions. These are the conventional conflict rules. 1. Conflict of Conflictul Systems A normal consequence to the national aspect of the conflict rules is that each country has its own version of these rules. This leads to the existence of conflict between these rules. This may truly be called a conflict between national methodologies of conflict or simply conflict of conflictual systems. This applies even when the different countries adopt Savignys paradigm. For example, under the Egyptian conflict rules, capacity is subject to the law of the nationality of the person (i.e., lex patriae)1 while under the English conflict rule this is subject to the law of this persons domicile. Both Egypt and UK use the conflictual methodology, however details of their conflict rules are not identical. 2. Different International Settings for the Unification Conflict of conflictual systems can be reduced by the creation of internationally unified conflict rules through international multilateral conventions to be applied universally (a) or regionally (b). a. Universal Unification On the worldwide setting, there are international efforts for unification sponsored by an international organisation called the Hague Conference on Private International Law.2 This Conference is actually a permanent international organisation
Article 11 (1) of the Civil Code. See for a list of its international Conventions at <ttp://hcch.evision. nl/index_en.php?act=conventions.listing> (visited Nov. 1, 2004).
1 2

70

Conflictual Methodology in Egypt

aiming at fostering international unification of conflict rules under different international conventions. It has drafted over 35 conventions, including, among others, the Hague Conventions on International Sales of Goods (1955 and 1986), the Service of Documents Abroad (1965), the Taking of Evidence Abroad (1970) and Agency (1978).1 b. Regional Unification Conflict rules are also unified on regional setting. In this regards one may mention the efforts of the European Union (e.g., the Rome Convention2 of 1980) and the Organization of American States (OAS), sponsor of the Inter-American Specialized Conferences on Private International Law,3 (CIDIP) (e.g., the Contracts Convention4). 3. Conventional Conflict Rules in Egypt Conflict rules in Egypt can be found in an international convention to which Egypt is a State party (e.g., New Your Convention of 1958 on Enforcement and Recognition of Foreign Awards). As we have mentioned before, when it is applied the conflict rule of the international convention is to be of domestic source, because it enjoys its normative character from the domestic legal system in which it is incorporated.5 However, when the conventional conflict rule is inter1 See particularly, K. Lipstein, One Hundred Years of Hague Conferences on Private International Law, 42 International and comparative Law Quarterly 553-653 (1993). 2 See particularly its sit on the internet at < http://www.romeconvention.org/> (visited Nov. 1, 2004). The Convention on the Applicable Law to Contractual Obligations (E.E.C. 80/934) in force April 1, 1991. 3 See on its international Conventions the information at <http://www.osec.doc.gov/ogc/occic/iac.html> (visited on Nov. 1, 2004) 4 See particularly their "Inter-American Convention on the Law Applicable to International Contracts", signed at Mexico, D.F., Mexico, on March 17, 1994, at the Fifth Inter-American Specialized Conference on Private International Law (CIDIP-V). Retrievable at <http://www.oas.org/juridico/english/ Treaties/b-56.html> (visited on Nov. 1, 2004). 5 See supra p.

71

Predetermination of Lex Causae

preted, this should be made in light of the international intentions of the States party to the convention.1 Also, in its relation with the (domestic) legislative conflict rule, the conventional conflict rule enjoys a superior level regardless to the date of incorporation of the international convention into the domestic legal system. This is even when the legislative conflict rule is subsequent in appearance to the incorporation of the international convention.2 This has been stressed by Article 23 of the Civil Code, and which provides that: "The provisions of the proceeding articles only apply when no provisions to the contrary are included in a special law or in an international convention in force in Egypt". III. Evaluation of the Conflictual Methodology Evaluation of the conflictual methodology can be made from two different perspectives, general, addressed to the methodology in its universal application or, particular, addressed to its application in Egypt. A. The General Evaluation The conflictual methodology has suffered severe criticism namely from USA jurists.3 However, this criticism has been met by a successful defensive reply. 1. Criticism The conflictual methodology is criticised for the fact that it sometimes leads to: application of an inconvenient law, disregard lois de police of the forum and application of a foreign law against the intention of its legislator.
See Abdulal, op. cit., p. 32. Ibid. p. 32. 3 See on this criticism, the leading article by: David F. Cavers, A Critique of the Choice of Law Problem, 47 Harvard Law Review 173 (1933). And, see general discussion at El-Hadad, op. cit. at 33-34.
1 2

72

Conflictual Methodology in Egypt

a. Inconvenient Law Due to the fact of the neutral aspect of the conflict rule, traditional conflict rules are mechanically applied by courts regardless of a pre-analysis of the actual convenient substance of the applicable law. This sometimes leads to the application of inconvenient laws leading to inconvenient outcomes. This is evident with simple conflict rules and which are qualified by being arbitrary.1 Also, in all cases, the conflict rule leads to the application of a law that was made to meet domestic needs while conflict of laws is concerned with international private relations. The international aspect, of such relations, mandates that the applicable law to be especially made for such relations. This criticism is particularly elaborated by those who defend an emergence of a new lex mercatoria composed of customary substantive rules specially tailored to the needs of the international trade.2 b. Disregard of the Lois de Police of the Forum A conflict rule may lead to disregard of the lois de police of the forum.3 These laws (i.e., lois de police) are domestic laws, made to be directly and mandatory applicable to both international and domestic relations due to the fact that they defend essential interests in the forum.4 An example, of such interests is the protection of a weak party (e.g., consumer). c. Disregard of the Intention of the Foreign Legislator When the applicable law turns to be foreign, the traditional conflict rule does not take into consideration the intention of the legislator of this law, i.e., whether this law accepts application from the perspective of its legislator or not. This disregard of the intention of the foreign legislator may lead to the application of a foreign law to cases where the legislator of the foreign
See supra p. 60. See generally on such writings our thesis, op. cit. p. 243. 3 See on lois de police infra p. 89. 4 See El-Haddad, op. cit., p. 34.
1 2

73

Predetermination of Lex Causae

law does not allow. This has been advocated by unilateralism and which calls for checking the wish of the applicable law to apply.1 2. Reply to Criticism A successful defensive reply might be made against the criticism addressed to the conflictual theory. According to this reply: the mechanical application of the conflictual methodology observes legal security; international substantive rules are not comprehensive; domestic lois de police are not an alternative methodology and they can always be observed is coexistence with conflictual methodology and considering the intention of the foreign legislator (i.e., unilateralism) is also difficult to be an alternative methodology and it can always be partially adopted in co-existence with bilateralism (i.e., conflictual rules). a. Observance of Legal Security It is true that neutrality of the conflict rules may lead to the application of inconvenient laws due to its mechanical application. However any suggested alternative, i.e., methodology that is based on the analysis of actual convenience of the connected laws will be at the same time risky and difficult.2 This applies for example to the theory of Cavers.3 First, it will be difficult to ask the court to compare between all the solutions of the connected laws, and even if this is obtainable it is difficult to determine when a solution will be more just. Also, such methodology may not satisfy the legitimate expectations of the concerned parties since it will depend on the analysis of the courts, case by case.

See infra p. 84. See generally on replying to the criticism addressed to the American writers to the traditional conflictual methodology and a counter criticism against the American suggested new methodologies: Pierre Lalive, Tendances et mthodes en droit international priv: Cours gnral, 155 Recueil de cours 1424 (1977-II). 3 See supra p. 52.
1 2

74

Conflictual Methodology in Egypt

b. Substantive Rules are not Comprehensive Also, though elaborating rules specially tailored to the needs of international private relations can always be a partial achievement; it is difficult for each State to legislate a comprehensive such rules. By the same token, the new self-elaborated international trade usages (i.e., the new lex mercatoria) are not conclusive.1 Therefore, there will always be incompleteness (i.e., lacuna) within any adopted substantive methodology,2 the issue that mandates recourse to conflict rules in order to determine complementary applicable domestic law. c. Domestic Lois de Police are not an Alternative Methodology and They can always be Observed First, the methodology of lois de police cannot be an alternative to conflictual methodology. Second, observance of the domestic lois de police does not necessarily contradict with the conflictual methodology; both can positively be complementary to each other as will be seen later.3 d. Unilateralism is Difficult to be an Alternative Methodology and it can always be Partially Adopted First, respect of the intention of the foreign legislator and which is called doctrine of unilateralism is difficult to be a comprehensive alternative to conflictual methodology. No such case is reported in any country of the world. Second, partial adoption of unilateralism in complementary to bilateralism (i.e., conflictual methodology) can always be possible as we will see later.4

See on the lex mercatoria infra p. 87, also our doctoral thesis, op. cit., pp.

220-240. See infra p. 85. See infra p. 93. 4 See infra p. 84.
2 3

75

Predetermination of Lex Causae

B. Evaluation of the Egyptian Conflict of Laws Though the Egyptian conflict of laws has so far satisfied the social needs in modern Egypt, the available system is not perfect and can be criticised whether in its conflict rules or its application. 1. Criticism of Egyptian Conflict Rules Though the Egyptian conflictual system is overall satisfying the needs, its upgrade is strongly needed. This is in order to overcome criticise addressed to its aspects of incompleteness (a), traditionalism (b) and unconstitutionalism (c). a. Incompleteness Many important legal categories of conflict of laws do not enjoy conflict rules. These for example are the cases of: capacity to enjoy, nullity of marriage, some aspects of filiation, adoption and custody of children.1 b. Traditionalism Some Egyptian conflict rules do not cope with modern trends in comparative conflict of laws.2 First, Some general conflict rules need cases of exception. For example, the Egyptian conflict of laws contains one conflict rule for contract (Article 19 of the Civil Code). However, some contracts need particular conflict rules to be applied by exception. This happens with contract of employment, contract of consumer, e-commerce, international banking and agency. Second, some conflict rules need to substantially be modified, for example the double actionability requirement for the application of the law at the place of the occurrence of the unlawful act to tort should be repealed since this requirement is no longer maintained in modern conflict of laws.3
See Abdulal, op. cit., p. 27. Ibid. p. 26. 3 Double actionability means that the unlawful act is illegitimate in Egypt and place of occurrence (Article 21(1) of the Civil Code).
1 2

76

Conflictual Methodology in Egypt

c. Unconstitutionality Many conflict rules do not observe equal treatment between man and woman and consequently risk violation of the constitution.1 This takes place with the Egyptian conflict rule for the effects2 and termination3 of marriage (application of the lex patriae of husband). 2. Application of Conflict Rules in Egypt Unfortunately, the Egyptian courts generally favour application of the Egyptian law, the lex fori, and hesitate to activate the Egyptian conflict rules in their due course.4 This takes place through the use of many techniques that do not cope with the philosophy of the Egyptian conflict of laws. These techniques include: ignoring the mandatory character of the Egyptian conflict rules, burdening the litigants with the mission of establishing the substance of the applicable law and excluding application of the foreign applicable law due to an extensive interpretation of public policy in Egypt.5 a. Conflict Rule is not Clearly Treated Mandatory The application of the Egyptian conflict rule is left to the pleading of the concerned litigants, absence of such plead leads to its non-application. This does not cope with the mandatory character of the Egyptian conflict rule defended by modern Egyptian doctrine.6 b. Substance of the Foreign Applicable Law Must be Established by the Litigants Even when the application of the conflict rule is pleaded, its substance must be established by the concerned pleading party otherwise it will not be applied by the court, i.e., the court does not bother to search this substance. This is supported by many
See, El-Haddad, op. cit., p. 31. Article 13(1) of the Civil Code. 3 Article 13(2) of the Civil Code. 4 See Abdulal, op. cit., p. 26. 5 Ibid. 6 See infra chapter 6.
1 2

77

Predetermination of Lex Causae

decisions of the Egyptian court of cassation and which consider foreign applicable law, a matter of fact and not a matter of law, and therefore releasing the courts from the duty to have taken notice of it.1 c. Extension of the Concept of Egyptian Public Policy Also, even when proof of the foreign applicable law is made,2 Egyptian courts extend the concept of Egyptian international public policy, namely in personal status matters, leading to the exclusion of the application of this foreign applicable law.

1 2

See infra chapter 23. See infra chapter 25.

78