In a quite unexpected and surprising move, the Egyptian government submitted a draft amendment (the “Amendment”) to the Supreme Constitutional Court’s law No. 48 of 1979 (the “SCC Law”). The purpose of the Amendment was to expand the mandate of the Supreme Constitutional Court (the “SCC”) by reviewing the constitutionality of foreign judgments and decisions required to be enforced against the State. On 15 August 2021, the Amendment was issued as Law No. 137 of 2021 amending the SCC Law.
Background
The Amendment came against the backdrop of an alleged legislative vacuum in the current laws; the Ministry of Justice contended that the current SCC Law does not give the SCC the power to review international decisions that could harm Egyptian national economic interests. The solution proposed by the Ministry of Justice was thus to introduce legislative provisions that widened the scope of the SCC’s constitutional purview.
The draft Amendment mainly consisted of the addition of two new articles to the SCC Law, being articles 27 bis and 33 bis which are summarized as follows: (i) article 27 bis: the SCC supervises the constitutionality of the decisions issued by international organizations, international institutions, and the judgments of courts and the arbitral awards of foreign arbitration institutions, which are requested to be enforced against the State; and (ii) article 33 bis enables the Prime Minister to request that the SCC issue an order setting aside the decisions and judgments referred to by article 27 bis or the obligations resulting from their enforcement. This article also includes the procedural aspects of the request, and states that the SCC must promptly decide on the request.
Following its submission to Parliament, the Constitutional and Legislative Affairs Committee of Parliament (the “Committee”) decided to postpone discussion of the draft Amendment in order to await receipt of the SCC’s opinion thereon. The SCC approved the draft Amendment shortly afterwards.
Furthermore, the Committee, based on a request submitted by the Government, decided to edit the draft Amendment by removing any language related to arbitral awards.
The Parliament approved the draft Amendment following its editing and it was published in the Official Gazette on 15 August 2021. The final version of article 27 bis that was enacted, thus, stipulates that: “The SCC will undertake the supervision of the constitutionality of the decisions issued by international organizations, international institutions and foreign court judgments which are requested to be enforced against the State.” The remaining provisions of the draft Amendment remain the same.
Market Reaction
Several remarks were raised by members of Parliament concerned with the implications of the Amendment. Those remarks mainly revolved around a) seeking the opinion of the SCC on the draft Amendment as this is a constitutional obligation; b) seeking the opinion of the Minister of Investment in order to gain more insight into the economic implications thereof; and c) whether this Amendment might give an impression that Egypt does not enforce the awards rendered by international arbitral tribunals, which can negatively affect the interests of the Egyptian State abroad.
It remains to be unknown how this Amendment will affect Egypt’s commitments to international organizations and its view of international law.
