Ch03 - Conflictual Methodology in Egypt

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Predetermination of Lex Causae

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translated to “rules of attachment” . This terminology focuses onthe role of these rules in the attachment of the relation to itsmost connected law. It is the terminology which prevails in theArabic literature on the subject.

Since the conflict rule ascertains the most appropriate le-gal 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 terminologysince this word suggests struggle between the connected laws,while this is not actually true. In fact, international privaterelations lead to a “ jam” and not “ conflict” of laws. 2

Then, the role of the conflict rule is not to settle strugglebetween different sovereignties, but rather determine whichamong the connected laws is the most convenient (appropriate,suitable or apt) to regulate the case at hand. This is mainly de-cided by the legislator, the creator of the conflict rule, howeverit might be made by the court, this is done when the legislatoradopts a flexible style of draft for the conflict rule giving a dis-cretionary power to the court in the search for the convenientlaw. 3

B. Technical Terminology of Conflict Rules

Conflict rules are expressed in terminology of juridical conceptsin Latin; the most important of which are the term lex forivs. thelex causae.

1. Lex ForiThe 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 thecourt, the applicable law will be that of the lex fori.

1 See Abdulal, op. cit. p. 4. 2 This is supported by the fact that Huber, the inventor of the term,

bases his theory on international comity and not conflict of sovereignties. SeeSadek, op. cit. p. 5.

3 See particularly on complexconflict rules infra p. 60.



Conflictual Methodology in Egypt

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2. Lex CausaeThe conflict rule will lead to the determination of the applicablelaw; this is the lex causae. This terminology denotes the law,usually but not necessarily foreign, and which applies to thecase. Hence, the lex causae can either be a domestic or foreignlaw. For example, in Egypt capacity of the person is subject tohis law of nationality; the law of nationality is the lex causae, itwill be the Egyptian law if the person is Egyptian and it will beforeign 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 domi-cile (in Latin, domicil).

• Lex executionis, this is the law of the place ofperformance of contract.

• Lex loci actus , this is the law of the place where a le-gal act took place.

• Lex loci arbitrii , this is the law of the place where thesessions of arbitration are taking place.

• Lex loci celebrationis , this is the law of the placewhere a marriage is celebrated.

• Lex loci contractus , this is the law of the place wherea contract is made.

• Lex loci damni , this is the law of the place where theinjury occurs.

• Lex loci delicti , this is the law of the place where atort is committed.

• Lex loci solutionis , this is the law of the place wherea contract is to be performed or where a debt is to be




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paid.

• Lex incorporationis , this is the law of the place ofincorporation and it governs assignments of regis-tered shares.

• Lex patriae or lex nationalis , this is the law of the na-tionality.

• Lex personae , this is the law of the person and whichcan be the law of his domicile ( lex domicilii) or nation-ality ( lex patriae or lex nationalis).

• Lex proctectionis, this is the law under which legalprotection 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 placewhere a property is situated.

• Lex validatis , this is a law connected with a transac-tion or occurrence and is distinguished by the factthat it validates such transaction or occurrence.

• Locus regit actum , this means that formality issubject to the law at the place where it is done.

C. Elements of Conflict Rules

Jurists unanimously agree to the analysis of conflict rules intotwo elements “ legal category” and “connecting factor” .However, substantial number of jurists add to such elements,the applicable law ( lex causae) itself.

1. Legal CategoryThe legal category is the legal concept that includes the group








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Cumulative Conflict RuleA conflict rule will be “ cumulative” when it contains more thanone connecting factor applying cumulatively. 1 Here the relationwill be subject to more than one law. An example for such aconflict rule is subjecting the essential validity of marriage toboth spouses’ national laws. 2

Alternative Conflict RuleA conflict of rule will be “ alternative” when it contains morethan one connecting factor, 3 however only one of them canalternatively be applicable. However, the alternatives can beequal or in hierarchical order.

• Equal AlternativesEqual alternatives exit when application of any of the multi-plied connecting factors is left to the court and which willsearch for the most suitable law according to any of thealternative connecting factors. 4 This is also called search for thelex validatis, i.e., the law that validates the relation. Also, thiswill make the conflict rule untraditionally result-oriented rule. 5

The best example for a complex conflict rule with equalalternatives in Egypt is the conflict rule for formality. In Egyptformality (for inter vivos legal acts) will be valid as long as itconforms with any of the following laws: the law at the place ofact (i.e., lex locus actus), the law applicable to substance ( i.e., lexcausae), the law of common domicile of parties ( i.e., shared lexdomicilii) or the law of their common nationality ( i.e., shared lex

patriae).6

• Alternatives in HierarchyThe alternative localisations of the complex conflict rule are

1 See El-Haddad, op. cit., p. 25. 2 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.




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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 con-flict rule for the determination of applicable law to contracts(not relating to immovable) ( i.e., lex contractus). The applicablelaw will be in the following hierarchical order: the law chosenby the parties (express or implied); the law of common domicile(i.e., shared lex domicilii) or the law of place of the conclusion ofcontract ( i.e., lex loci actus).2

3. Applicable Law (Lex Causae)According to modern jurists, the applicable law, and which isdetermined by the conflict rule, i.e., the lex causae, is an elementthereto. 3 However, we do not support this doctrine because itwill lead to giving the applicable foreign lex causae a nationalcharacter 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 theregulation of cases (legal categories) that involve a foreign ele-ment. Therefore, conflict rules constitute a particular “ national” or “ domestic” law. Each State is said to have its own conflictrules.

This also applies even when a conflict rule is adopted byan international convention. Here, the conflict rule will also benational because it obtains its normative character ( i.e., obliga-tory force) from the lex foriwithin which it is incorporated. 5

1 See El-Haddad, op. cit., p. 27. 2 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

23. 5 See Abdulal, op. cit., p. 11, footnote 1.




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2. NeutralThe applicable law is the most appropriate law from the pointof view of a legislator of certain State, and this is why the con-flict rule is said to be “neutral” . Activation of the conflict rule issatisfied once the applicable law is determined. This is regard-less to the actual convenience of the applicable law to the issuein dispute. This particularly applies within the simple conflictrule; complex conflict rules with alternative connecting factorsare however not neutral, they are “ result-oriented” .1 Here thesuitability 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. IndirectThe conflict rule does not give a direct solution to the dispute. Itdoes not give a substantive solution; then it is not a substantiverule. It is an indirect rule.

Some French jurists use a humorous example to describethe indirect character of conflict rule. They say that the conflictrule resembles the inquiry office at the railway station; it may

help a passenger to learn the platform at which he will find histrain, but it does not itself get this passenger to his point of des-tination.

4.BilateralConflict rules do not necessarily indicate a foreign law; theymay lead to the application of the domestic law; that is the lawof 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-

1 See supra p. 83.




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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 thesources of conflict rules in Egypt and the international uni-fication of conflict rules.

A. Sources of Conflict Rules in Egypt Unless the case of conflict of laws is not regulated by a substan-tive rule 2 or being subject to Egyptian lois de police,3 the Egyp-tian court will settle this case by resort to Egyptian conflictrules. 4 Therefore, the sources of the Egyptian conflict rules aredomestic. 5 This will be discussed in its both general context andpoints of particularity.

1. General ContextAccording to majority of Egyptian scholars, sources of law areof two different groups. First , the “ formal” sources of law, theseare 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 shari’a and principles of equity (these are thesubsidiary sources). Second, the “ informal” sources of law andwhich play an interpretative role without being authoritative.These sources are: case law and doctrine. Particularly, the caselaw is understood differently than that of the common law.Here it simply denotes constant and repeated unifiedinterpretation 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 (MiscellaneousProvisions) 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 andthen enjoys international sources. However, some Egyptian scholars do notexclude possibility of international sources for Egyptian conflict rules. See forexample, ibid. p. 25.








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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 strictinterpretation of the principle of separation between powers,namely between the legislative and judicial authorities. Thiswill also be against the traditions in Civil law system wherecourts are not sources of rules of law, unlike the situation in thecountries of the common law traditions where this might existunder the principle of stare decisis. 2 According to this principle,an inferior court has to follow the clear findings in law of asuperior court of the same jurisdiction. In common law,supreme courts and inferior courts may also hold themselvesbound by their own decisions.

However, modern doctrine in Civil law countriesrecognises a creative role for courts in the field of sources oflaw. This is at least in case of repeated and observed line ofinterpretation 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 StateCouncil in Egypt. 5

In addition, most of the French conflict rules are courts-made 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 nonquieta movere”, meaning “stand by the decisions and do not disturb the calm”. See Teltley’s 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.






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c. When Shall Resort to “General Principles of PIL” be made?According to the express words of Article 24, resort to the gen-eral principles of private international law is to be made whenno provision is available for a case of conflict of laws in its pre-vious Articles ( i.e., Articles 10-23 of the Civil Code). A strictinterpretation of this provision means that the resort will berestricted to the cases of lacuna and not to the cases of particularnature and which requires specific conflict rules. However,modern Egyptian doctrine does not follow such restrictiveinterpretation.

Therefore, the general principles of PIL will undoubtedlybe applicable to the cases of conflicts and which lack expressconflict rules, e.g., nullity of marriage, some aspects of filiation,adoption and custody of children. And, this will also be appliedto cases of conflict of laws that require particular localisationdifferent than the already available under a general conflict ofrule. 1 This exists for example with the contracts of employment,agency, banking, consumers and e-commerce. They deserveparticular localisation different than that which is availableunder the general conflict rule for contracts (Article 19(1)).

It is worth to mention that the general principles of PILshould not be ipso facto activated when the Civil Code lacks aneeded conflict rule. It should be taken into consideration thatthough most of the Egyptian conflict rules are legislatively codi-fied in the Egyptian Civil Code (Articles 10-28), 2 other legisla-tive conflict rules can be found under other statutes. These forexample are the cases of: Trade Act No. 17 of 1999 andArbitration Act No. 27 of 1994.

Thus, the general principles of PIL are subsidiary sourcesof law to legislation in general, and not just to the Civil Code.

1 See Abdulal, op. cit., p. 27. 2 They are not restricted to conflict rules, they also regulate the general

theories of conflict of laws: Characterisation (Article 10), Delegation (Article26), exclusion of Renvoi (Article 27) and Public Policy (Article 28).






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aiming at fostering international unification of conflict rulesunder different international conventions. It has drafted over 35conventions, including, among others, the Hague Conventionson International Sales of Goods (1955 and 1986), the Service ofDocuments Abroad (1965), the Taking of Evidence Abroad(1970) and Agency (1978). 1

b. Regional UnificationConflict rules are also unified on regional setting. In this re-gards one may mention the efforts of the European Union ( e.g., the Rome Convention 2 of 1980) and the Organization of Ameri-can States (OAS), sponsor of the Inter-American SpecializedConferences on Private International Law, 3 (CIDIP) ( e.g., theContracts Convention 4).

3. Conventional Conflict Rules in EgyptConflict rules in Egypt can be found in an international con-vention to which Egypt is a State party ( e.g., New Your Con-vention of 1958 on Enforcement and Recognition of ForeignAwards).

As we have mentioned before, when it is applied the con-flict rule of the international convention is to be of domesticsource, because it enjoys its normative character from the do-mestic legal system in which it is incorporated. 5

However, when the conventional conflict rule is inter-

1 See particularly, K. Lipstein, One Hundred Years of Hague

Conferences on Private International Law, 42 International and comparative LawQuarterly 553-653 (1993).

2 See particularly its sit on the internet at < http://www.rome-convention.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 Applicableto International Contracts ", signed at Mexico, D.F., Mexico, on March 17, 1994,at the Fifth Inter-American Specialized Conference on Private InternationalLaw (CIDIP-V). Retrievable at <http://www.oas.org/juridico/english/Treaties/b-56.html> (visited on Nov. 1, 2004).

5 See supra p.




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preted, this should be made in light of the international inten-tions of the States party to the convention. 1

Also, in its relation with the (domestic) legislative conflictrule, the conventional conflict rule enjoys a superior level re-gardless to the date of incorporation of the international con-vention into the domestic legal system. This is even when thelegislative conflict rule is subsequent in appearance to the in-corporation of the international convention. 2 This has beenstressed by Article 23 of the Civil Code, and which providesthat:

"The provisions of the proceeding articles only apply when no provisions to the contrary are included in a special law or in aninternational convention in force in Egypt".

III. Evaluation of the Conflictual Methodology

Evaluation of the conflictual methodology can be made fromtwo different perspectives, general, addressed to the methodol-ogy in its universal application or, particular, addressed to itsapplication in Egypt.

A. The General Evaluation

The conflictual methodology has suffered severe criticismnamely from USA jurists. 3 However, this criticism has been metby a successful defensive reply.

1. CriticismThe conflictual methodology is criticised for the fact that itsometimes leads to: application of an inconvenient law, dis-regard lois de police of the forum and application of a foreignlaw against the intention of its legislator.

1 See Abdulal, op. cit., p. 32. 2 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.




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a. Inconvenient LawDue to the fact of the neutral aspect of the conflict rule, tradi-tional conflict rules are mechanically applied by courts regard-less of a pre-analysis of the actual convenient substance of theapplicable law. This sometimes leads to the application of in-convenient laws leading to inconvenient outcomes. This is evi-dent with simple conflict rules and which are qualified by beingarbitrary. 1

Also, in all cases, the conflict rule leads to the applicationof a law that was made to meet domestic needs while conflict oflaws is concerned with international private relations. The in-ternational aspect, of such relations, mandates that the applica-ble law to be especially made for such relations.

This criticism is particularly elaborated by those who de-fend an emergence of a new lex mercatoria composed of custom-ary substantive rules specially tailored to the needs of the inter-national trade. 2

b. Disregard of the Lois de Police of the ForumA conflict rule may lead to disregard of the lois de policeof the

forum. 3 These laws ( i.e., lois de police) are domestic laws, madeto be directly and mandatory applicable to both internationaland domestic relations due to the fact that they defend essentialinterests in the forum. 4 An example, of such interests is the pro-tection 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 con-flict rule does not take into consideration the intention of thelegislator of this law, i.e., whether this law accepts applicationfrom the perspective of its legislator or not. This disregard ofthe intention of the foreign legislator may lead to the applica-tion of a foreign law to cases where the legislator of the foreign

1 See supra p. 60. 2 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.




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law does not allow. This has been advocated by “ unilateralism ”and which calls for checking the wish of the applicable law toapply. 1

2. Reply to CriticismA successful defensive reply might be made against thecriticism addressed to the conflictual theory. According to thisreply: the mechanical application of the conflictualmethodology observes legal security; international substantiverules are not comprehensive; domestic lois de policeare not analternative methodology and they can always be observed is co-existence with conflictual methodology and considering theintention of the foreign legislator ( i.e., unilateralism) is alsodifficult to be an alternative methodology and it can always bepartially adopted in co-existence with bilateralism ( i.e., conflictual rules).

a. Observance of Legal SecurityIt is true that neutrality of the conflict rules may lead to the ap-plication of inconvenient laws due to its mechanical applica-

tion. However any suggested alternative, i.e., methodology thatis based on the analysis of actual convenience of the connectedlaws will be at the same time risky and difficult. 2

This applies for example to the theory of Cavers. 3 First, itwill be difficult to ask the court to compare between all the so-lutions of the connected laws, and even if this is obtainable it isdifficult to determine when a solution will be more just. Also,such methodology may not satisfy the legitimate expectationsof the concerned parties since it will depend on the analysis ofthe courts, case by case.

1 See infra p. 84. 2 See generally on replying to the criticism addressed to the American

writers to the traditional conflictual methodology and a counter criticismagainst the American suggested new methodologies: Pierre Lalive, Tendanceset méthodes en droit international privé: Cours général , 155 Recueil de cours1-424 (1977-II).

3 See supra p. 52.




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b. Substantive Rules are not ComprehensiveAlso, though elaborating rules specially tailored to the needs ofinternational private relations can always be a partial achieve-ment; it is difficult for each State to legislate a comprehensivesuch rules.

By the same token, the new self-elaborated internationaltrade 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 thatmandates recourse to conflict rules in order to determinecomplementary applicable domestic law.

c. Domestic Lois de Police are not an Alternative Methodology andThey can always be ObservedFirst, the methodology of lois de policecannot be an alternativeto conflictual methodology. Second, observance of the domesticlois de policedoes not necessarily contradict with the conflictualmethodology; both can positively be complementary to eachother as will be seen later. 3

d. Unilateralism is Difficult to be an Alternative Methodology and itcan always be Partially AdoptedFirst, respect of the intention of the foreign legislator and whichis called doctrine of “ unilateralism ” is difficult to be a compre-hensive alternative to conflictual methodology. No such case isreported in any country of the world. Second, partial adoptionof unilateralism in complementary to bilateralism ( i.e., con-flictual methodology) can always be possible as we will seelater. 4

1 See on the lex mercatoria infra p. 87, also our doctoral thesis, op. cit., pp.220-240.

2 See infra p. 85. 3 See infra p. 93. 4 See infra p. 84.




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B. Evaluation of the Egyptian Conflict of Laws

Though the Egyptian conflict of laws has so far satisfied the so-cial needs in modern Egypt, the available system is not perfectand can be criticised whether in its conflict rules or its appli-cation.

1. Criticism of Egyptian Conflict RulesThough the Egyptian conflictual system is overall satisfying theneeds, its upgrade is strongly needed. This is in order to over-come criticise addressed to its aspects of incompleteness (a), tra-ditionalism (b) and unconstitutionalism (c).

a. IncompletenessMany important legal categories of conflict of laws do not enjoyconflict rules. These for example are the cases of: capacity to en- joy, nullity of marriage, some aspects of filiation, adoption andcustody of children. 1

b. Traditionalism

Some Egyptian conflict rules do not cope with modern trends incomparative conflict of laws. 2

First, Some general conflict rules need cases of exception.For example, the Egyptian conflict of laws contains one conflictrule for contract (Article 19 of the Civil Code). However, somecontracts need particular conflict rules to be applied by excep-tion. This happens with contract of employment, contract ofconsumer, e-commerce, international banking and agency.

Second, some conflict rules need to substantially be modi-fied, for example the “ double actionability” requirement for theapplication of the law at the place of the occurrence of the un-lawful act to tort should be repealed since this requirement isno longer maintained in modern conflict of laws. 3

1 See Abdulal, op. cit., p. 27. 2 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).




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c. UnconstitutionalityMany conflict rules do not observe equal treatment betweenman and woman and consequently risk violation of theconstitution. 1 This takes place with the Egyptian conflict rulefor the effects 2 and termination 3 of marriage (application of thelex patriae of husband).

2. Application of Conflict Rules in EgyptUnfortunately, the Egyptian courts generally favour applicationof the Egyptian law, the lex fori, and hesitate to activate theEgyptian conflict rules in their due course. 4 This takes placethrough the use of many techniques that do not cope with thephilosophy of the Egyptian conflict of laws.

These techniques include: ignoring the mandatorycharacter of the Egyptian conflict rules, burdening the litigantswith the mission of establishing the substance of the applicablelaw and excluding application of the foreign applicable law dueto 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 thepleading of the concerned litigants, absence of such plead leadsto its non-application. This does not cope with the mandatorycharacter of the Egyptian conflict rule defended by modernEgyptian doctrine. 6

b. Substance of the Foreign Applicable Law Must be Established bythe LitigantsEven when the application of the conflict rule is pleaded, itssubstance must be established by the concerned pleading partyotherwise it will not be applied by the court, i.e., the court doesnot bother to search this substance. This is supported by many

1 See, El-Haddad, op. cit., p. 31. 2 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.




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decisions of the Egyptian court of cassation and which considerforeign applicable law, a matter of fact and not a matter of law,and therefore releasing the courts from the duty to have takennotice of it. 1

c. Extension of the Concept of Egyptian Public PolicyAlso, even when proof of the foreign applicable law is made, 2 Egyptian courts extend the concept of Egyptian internationalpublic policy, namely in personal status matters, leading to theexclusion of the application of this foreign applicable law.

1 See infra chapter 23. 2 See infra chapter 25.