Privacy and Confidentiality in the Judicial System

El-Awa, Mariam M.

doi:10.1007/978-3-319-39122-9_3

Mariam M. El-Awa⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 56))

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Abstract

Arbitration users are often encouraged to resort to arbitration for its privacy and confidentiality as opposed to publicity of state courts; this chapter examines the rule of Public Trial and its relevance in arbitration practice. The chapter starts by explaining the association between arbitration and the judicial system, in both literature and court judgements; the nature of the arbitral process and arbitrators’ role. The examination of the Public Trial rule is carried out in two consecutive steps: the first is examining and determining the true meaning and the extent of application of the Public Trial rule in the judicial system, by looking into its constitutional protection, and its incorporation in the procedural rules of the judicial system. The second step is answering the question of whether the various components of the arbitral process should be subjected to the same level of publicity, or otherwise, as their counterparts in the judicial system. Consideration in this part is given to the various stages of the judicial process for which the laws of procedure stipulate an express rule as to the extent of their publicity or confidentiality/secrecy.

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Notes

1.
Lew et al. (2003, para 5-3, p. 72).
2.
Lew et al. (2003, para 5-5, p. 72).
3.
Lew et al. (2003, para 5-26, p. 80).
4.
This perception does not seem to be limited to Arabic literature. Speaking of arbitration in the USA, Kyriaki Noussia states that “Arbitration, as regulated by federal and state acts, is an adjudicatory process … although its adjudicatory nature makes it similar to state courts litigation, nevertheless, it is less formal…”. Noussia (2010, pp. 13–14).
5.
Fouchard (1999, para 11, p. 11).
6.
El-Sharkawi (2011, para 7, p. 15), and Waly (2007, para 21, p. 52).
7.
Rashed (1984, para 23, p. 71).
8.
Eissa (interview: 1/11/2010).
9.
Mekki (personal communication, 29/10/2010).
10.
By way of example; summons [articles (5 to 19) of the Law of Civil Procedure], deposition of written pleadings [articles (63 and 65)], execution [articles (276 and 279–282)], executive attachment on property [articles (353–372)], and deposition of the draft of judgements article (175), submitting a simple copy of the award [article (180)], submitting the original judgement document to the parties [article (181)], and other procedures—it is notable that the law is silent on the issue of publicity and/or secrecy. These procedures, and others, are not required to be carried out neither in secrecy nor publicly. If one conducts either of them in the presence of ten people, the procedure is as valid as if it was conducted in the presence of only the civil servant in charge. Publicity and secrecy are utterly irrelevant to the validity of these procedure.
11.
For example, the Egyptian Court of Cassation: judgment on 1/2/1983, case no 1288, judicial year 48; judgment on 21/6/1997, case no 4173, judicial year 61; judgment on 25/6/1998, case no 2987, judicial year 60; judgment on 15/2/1972, case no 194, judicial year 37; judgment on 6/11/1994, case no 1029, judicial year 60; judgment on 27/2/1994, case no 52, judicial year 60; judgment on 24/05/1966, case no 167, judicial year 31; judgment on 13/3/2003, case no 6166, judicial year 66; and judgment on 27/11/2006, case no 1248, judicial year 65.
12.
Al-Beshri (interview: 11/11/2010).
13.
Al-Beshri (interview: 11/11/2010).
14.
Cairo Court of Appeal, commercial circuit no (91), judgements on: 27/2/2007, case no 66, judicial year 123, and 30/5/2007, cases nos 93 and 94, judicial year 123.
15.
Cairo Court of Appeal, commercial circuit no (7), judgement on 3/2/2009, case nos 65 and 71, judicial years 124 and 125 respectively. Similarly: Cairo Court of Appeal, commercial circuit no (7), judgement on 5/5/2009, case no 29, judicial years 125. Professor Aktham El-Khouly noted, commenting on the latter judgement, that the court did not in fact need to address the issue of the nature of arbitration as a system independent and distinctive from the judicial system—for the purpose of deciding the dispute subject of the said judgement. See: El-Khouly (2010, p. 456).
16.
Cairo Court of Appeal, commercial circuit no (7), judgement on 9/3/2011, case no 70, judicial year 123. For Similar views see: Farouk (2003, pp. 40–43), and Abdurahman (1997, p. 17).
17.
For example article (11/1) of the Universal Declaration of Human Rights reads as follows: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. Text found on: http://www.un.org/en/documents/udhr/#atop.
18.
Evans (2001, p. 255).
19.
Cairo Court of Appeal, commercial circuit no (7), judgement on 3/6/2013, case no 1, judicial year 130. French courts expressed an even stronger opinion on the matter; it held that “from the time of his appointment he [the arbitrator] assumes the status of a judge”’ see: Fouchard (1999, para 1029, pp. 564–565).
20.
Egyptian Scholars concur with the court’s view expressed in the above mentioned judgement (note 19 above); for example see: El-Nemr (2006, p. 17), and Abdulrahman (1997, para 32, p. 46).
21.
Lew et al. (2003, para 5-25, p. 80).
22.
Poudret and Besson (2007, para 437, p. 368).
23.
Fouchard (1999, pp. 12 and 560).
24.
Waly (2013, para 15, p. 92); El-Awa (2014, vol. 2, p. 257).
25.
Court of Cassation, judgement on 1/2/1983, case no 1288, judicial year 48. For judgements stating the same principle see: Op. Cit., note 11.
26.
Born (2009, pp. 1758 ff.).
27.
El-Awa (2014, vol. 2, p. 4).
28.
Poudret and Besson (2007, para 545, pp. 470).
29.
Poudret and Besson (2007, paras 546-547, pp. 471–472).
30.
Waly (2013, pp. 83–84) and El-Awa (2014, vol. 2, pp. 4–5).
31.
Cairo Court of Appeal, commercial Circuit (7) refused to annul an arbitral award based on the appellant’s allegation that the arbitral tribunal’s rejection of the debtor request to include in the arbitration the other debtors with whom the appellant was jointly responsible for the sums in question, and the latter having already agreed to be joined in the arbitration. The Court of Cassation turned this judgement, because in its opinion the arbitral tribunal, by refusing to permit the intervention of the join debtors in the arbitral proceedings, violated the public order rule which does not allow burdening a joint debtor with more than his share in the debt in question. The Court of Cassation returned the case to the Court of Appeal, which upon reviewing the case ruled, again, in conformity with its ruling which the court of Cassation reversed(!) The Court of Appeal justified its 2nd judgement by arguing that the court of Cassation ruling is not consistent with the nature of arbitration or its objectives which commands its provisions. For a more detailed account of these three judgements see: Waly (2013).
32.
Waly (2013, p. 88) notes that the general trend in the Court of Cassation is that the provisions of the Law of Procedure are applicable as the said law is the general procedural law in Egypt, save for cases where such application is expressly excluded.
33.
Waly (2013, p. 92).
34.
El-Awa (2014, vol. 2, pp. 3–4).
35.
Poudret and Besson (2007, para 538, p. 466).
36.
El-Awa (2014, vol. 1, pp. 238–241), and El-Sharkawi (2011, para 248, pp. 332–333).
37.
Save for bodies which the law vested with such capacity, the most obvious example of which is arbitral tribunals.
38.
R. v Sussex Justices, Ex p. McCarthy [1924] 1 KB 256; [1923] All ER 233.
39.
Text retrieved from: http://www.hccourt.gov.eg/Constitutions/Constitution23.asp.
40.
Article (118).
41.
Article (177).
42.
Article (62).
43.
Article (154).
44.
Article (169).
45.
Article (171).
46.
Al-Otifi (1964, pp. 369 and 507).
47.
Al-Otifi (1964, para 347, p. 518).
48.
Al-Ashmawy (1957, vol. 2, para 645, pp. 54–55).
49.
Al-Otifi (1964, footnote 5, p. 509).
50.
Ibid.
51.
Al-Otifi (1964, para 345, p. 514).
52.
Kera (1993, p. 62).
53.
Woolf (1986, p. 275).
54.
Hosni (1988, para 909, p. 804).
55.
Case no 7, judicial year 17, retrieved from the Supreme Constitutional Court of Egypt website: http://www.hccourt.gov.eg/Rules/getRule.asp?ruleId=1446&searchWords. Also, The Encyclopaedia of Constitutional Principles (2000, vol. 2, p. 1526, at nos 1 and 2). Same principle applied by the Egyptian Court of Cassation in a case related to tax disputes resolution committees on 28/12/1992, case no 1341, judicial year 61.
56.
Article (165) of the 1971 Constitution, predecessor of article (184) of the 2014 Constitution.
57.
Al-Beshri (interview: 11/11/2010). Article (11) of the Arbitration Law 1994 reads: “Arbitral agreements may only be concluded by natural or juridical persons having capacity to dispose of their rights. Arbitration is not permitted in matters where compromise is not allowed.”
58.
Waly (2001, para 276, p. 466).
59.
Also, article (193) of the Penal Code criminalizes publishing any news about investigations or pleadings related to cases of divorce, separation of marriage, or adultery. Also, article (5) of the law no 1 of the year 2000 regulating some issues and litigation procedure in personal status matters—it states that disputes related to personal status shall be heard in Chambers. According to the Court of Cassation interpretation, the term “in Chambers” in this context means secret hearing: judgement on 2/8/1978, case no 14, judicial year 46.
60.
Court of Cassation, judgement on 19/12/1989, case no 71, judicial year 59.
61.
Obeid (1976, p. 592), and El-Gharib (1997, vol. 2, p. 1174).
62.
El-Ashmawy (1957, vol. 2, para 1074, pp. 688–690), Meligi (2012, vol. 3, para 1242, p. 799), Waly (2001, para 273, p. 467); Mahdy (2003, para 791, p. 1175).
63.
Salama (2005, vol. 2, para 2, p. 825).
64.
El-Fazairy (1990, pp. 65 ff.).
65.
The press is allowed to publish oral pleadings taking place in public trials, if an order for a confidential/secret hearing is in place the law prohibits such publication. This is by virtue of article (189) of the Penal Code.
66.
Court of Cassation, judgement on 2/3/1983, case no 734, judicial year 48, referred to in: Meligi (2012, vol. 2, para 1023, p. 813).
67.
Al-Otifi (1964, para 347, p. 518).
68.
Awad (1981, footnote 3, p. 37).
69.
Waly (2001, p. 368 at B) and El-Fazairy (1990, p. 67).
70.
Unfortunately, I was not able to locate any official document that confirms that this is the route a member of the public has to take to obtain such documents. However, a number of judges whom I interviewed and talked to, off the record, as well as some practitioners, confirmed that this is how documents are legally obtained from court files. It is also, anecdotally, reported that corruption in the lower level of court administration created different routes to obtain and/or insert documents in court files.
71.
The self-executing copy is given only once to the winning party, while the losing party gets an official copy. If the winning party needs another copy, in case the first one was lost, he should file a suit in court so requesting.
72.
El-Fazairy (1990, p. 65).
73.
Article (43/2) of the Arbitration Law 1994 allows the parties to choose that the award be issued without reasons.
74.
For example, in the trial of the former president of Egypt, Hosni Mubarak (2012–2013), where almost everyone wanted to attend, and it was impossible to find a place to accommodate all those who wanted to attend, the court decided that attendance shall be allowed to permit holders only. The court assured that giving the permit is in the hands of the presiding judge solely. http://digital.ahram.org.eg/articles.aspx?Serial=593109&eid=2504.
75.
Court of Cassation, criminal circuit, judgement on 11/3/1952, case no 901, judicial year 21.
76.
Among those cases is a criminal trial of Ibrahim Eissa, journalist and TV presenter, for allegedly spreading rumours about the health of the former president of Egypt Hosni Mubarak, which caused civil unrest in 2007; the trial of a number of Egyptians, Lebanese and Palestinians who were some of them were accused of moving weapons through Sinai into Palestine, known as Hizb Allah case in 2010, and finally the trial of Hosni Mubarak, his two sons, the minister of interior Habib el-Adly, at the time, and six heads of departments in the ministry of interior for the charges of killing the protesters during the Revolution of 2011. Live broadcasting of this trial lasted a few hearings until an order so prohibiting was made by the court.
77.
Obeid (1976, p. 592); Mahdy (2003, para 792, p. 1172), and Waly (2001, para 278, pp. 469–470). For the opposite opinion, that the court cannot remove either party from the court room except if it follows this removal by postponing the hearing until another date see: El-Ashmawy (1957, vol. 2, footnote 3, p. 57).
78.
Waly (2001).
79.
Lawyers are often referred to in the legal culture in Egypt as the “standing judiciary” as opposed to the “sitting Judiciary”, i.e. the judges.
80.
Article (53/1/C) of the Arbitration Law 1994.
81.
Court of Cassation judgement on 16/2/1982, case no 6, judicial year 51; its criminal circuit judgements on: 27/2/1962, case no 988, judicial year 31 and 10/3/1998, case no 29653, judicial year 67, and Waly (2001, para 273, p. 467).
82.
Court of Cassation, judgement on 27/2/1962, case no 6, judicial year 51.
83.
Aboulwafa (2000, para 38, p. 92), and Meligi (2012, vol. 3, para 1242, p. 796).
84.
El-Gharib (1997, para 959, p. 1172).
85.
Personal status cases should be reviewed in secret hearings as shall be discussed in the following paragraphs.
86.
Court of Cassation judgment on 13/3/2004, case no 48, judicial year 66, referred to in Waly (2001, footnote 6, p. 468), and its judgement on 8/12/1976, case no 31, judicial year 44.
87.
Court of Cassation, criminal circuit, judgements on: 27/12/1987, case no 3861, judicial year 57, and 11/1/1979, case no 1543, judicial year 48.
88.
Court of Cassation, criminal circuit, judgements on: 5/1/1998, case no 23808, judicial year 65, and 2/1/1979, case no 791, judicial year 48.
89.
Al-Ashmawy (1957, vol. 2, p. 55 at 1).
90.
Al-Otifi (1964, para 365, p. 534).
91.
Al-Ashmawy (1957, vol. 2, para 645, pp. 56–57).
92.
Al-Ashmawy (1957, vol. 2, footnote 2, p. 57).
93.
Also article (268) of the Law of Criminal Procedure and article (18) of the Law of the Judicial Authority discussed above.
94.
El-Gharib (1997, footnote 4, p. 1175).
95.
Al-Otifi (1964, para 400, p. 586).
96.
El-Gharib (1999–2000, para 142, p. 251).
97.
Court of Cassation judgement on 1/12/1974, referred to in: Salama (2005, p. 827, footnote 1).
98.
Al-Otifi (1964, para 402, p. 590).
99.
Aboulwafa (1990, p. 453).
100.
In arbitration, only the legal notion of public order is of relevance.
101.
Further, an arbitration award that breaches public order is null, as a matter of law, and courts can annul it on their own motion.
102.
El-Danasoury and Okkaz (1982, p. 257).
103.
Meligi (2012, vol. 2, para 1018, p. 810).
104.
Ibid.
105.
Court of Cassation judgements on: 5/2/1977, case no 668, judicial year 41; 20/7/1992, cases nos 32, 35, 36, and 37, judicial year 56, referred to in Meligi (2012, vol. 3, para 1244, p. 801).
106.
Judgement on 1/12/1947, referred to in: El-Gharib (1999–2000, para 142, p. 251).
107.
Judgement on 3/3/1953, referred to in: Salama (2005, p. 826).
108.
Op. Cit. note 105.
109.
Criminal circuit, judgement on 3/3/1952, case no 815, judicial year 21.
110.
Criminal circuit, judgement on 30/10/1933, referred to in: Salama (2005, footnote, 4, p. 628), and judgement on 11/6/1931, referred to in: Hosni (1988, para 911, p. 807).
111.
Cairo Court of Appeal, commercial circuit no (91), judgement on 29/11/2005, case no 81, judicial year 121; economic circuit no (7), judgement on 2/7/2007, case no 68, judicial year 123, and economic circuit no (7), judgement on 8/4/2008, case no 50, judicial year 123.
112.
Many of these contracts, ultimately, concerned sale of property in Sinai Peninsula to foreigners which is prohibited by the law. However, this was not the ground on which this series of awards were annulled.
113.
Ibid.
114.
Hosni (1988, para 911, p. 806).
115.
Ibid, and El-Gharib (1997, pp. 1174–1175).
116.
Mahdy (2003, para 793, p. 1177).
117.
Hosni (1988, para 911, p. 807), and El-Gharib (1997, p. 1175).
118.
El-Gharib (1997, p. 1174) and El-Ashmawy (1957, vol. 2, footnote 1, p. 56).
119.
In the trial of Hosni Mubarak, mentioned in footnote 75 above, the court summoned the, then, Field Marshal Tantawy—Head of SCAF—and Samy Anan—Chief of Staff of the Egyptian army—to testify and the court ordered that the hearing in which they are to give their testimony shall be a secret hearing. Before this decision, the court also ordered that there shall be no more live TV broadcasting of this trial. Given the importance of this case, and its bearing on the political climate in society, these decisions were highly criticized, basically because they compromised the integrity of the court in the public opinion, and whether or not the court would reach the right judgement at the end of this case, the public will always question and doubt the validity of the decision and the whole trial. This decision might have been legally valid but it is, no doubt, politically and socially incorrect.
120.
Sorour (1981, para 571, p. 1012); El-Gharib (1999–2000, p. 254); Hosni (1997, para 912, p. 808), and Salama (2005, p. 827).
121.
Case no 71, judicial year 59, mentioned in: Meligi (2012, vol. 2, para 1019, p. 811).
122.
Contrarily, in England, under the Civil Procedure Rules (Rule 62.10) in arbitration claims the court can hold its hearings in public or private save for claims concerning a point of law, and questions of law arising from arbitral awards, which should always be held publicly. This Position reflects a strong pro confidentiality approach, where the legislator balanced the parties’ expectation and need to confidentiality against the rule of public trial, and decided that in arbitration claims, the former prevailed.
123.
Article (126) reads that: “No one shall be permitted to attend a juvenile trial before juvenile court except his relatives, witnesses, lawyers, social workers and those whom the court permit to attend with special permission…”. A similar text existed in article (34) of the law no 31 of the year 1974 on Juveniles.
124.
El-Gharib (1999–2000, para 143, p. 251); Salama (2005, para 4, p. 828), and Hosni (1997, para 913, p. 808).
125.
Judgement on 4/5/1990, case no 12962, judicial year 59.
126.
El-Ashmawy (1957, vol. 2, p. 55–56 at 2).
127.
Court of Cassation judgements on: 19/12/1989, case no 71, judicial year 59; 22/1/1991, case no 146, judicial year 60; 16/2/1982, case no 6, judicial year 51 referred to in: Waly (2001, footnote 2, p. 468); 21/12/1999, case no 317, judicial year no 65; 2/8/1978, case no 14, judicial year 46, and on 19/3/1980, case no 23, judicial year 48.
128.
Court of Cassation, judgement on 8/3/2003, case no 345, judicial year 71.
129.
In these three categories, publication of the particulars discussed in the hearings and the detailed reasoning of the court in its final judgement would simply be a repetition of the crime committed by the indictee in these cases. Prohibiting publication here is just a consequence of the nature of the crime in question. Awad (1981, pp. 39–40).
130.
These cases reveal many details of the very private lives of the persons involved, publication of the hearing’s particulars would violate their right to privacy, and is likely to be in conflict with morals and family sanctity.
131.
Trials in crimes related to state security naturally include information the publication of which would constitute another crime by itself and would threaten the security of the state; its publication conflicts with the considerations of public order in respect of the security of society and the state.
132.
The Law of Criminal Procedure no 150 of the year 1950, equivalent to article (191) of the Law of Civil Procedure.
133.
Ibid.
134.
Ibid.
135.
Aboulwafa (2000, p. 93); Sorour (1981, para 571, p. 1011), and El-Gharib (1997, para 961, p. 1173).
136.
El-Gharib (1999–2000, p. 253).
137.
In claims submitted under article (191) of the Law of Procedure, the request for correcting clerical errors is reviewed without oral pleading all together. Court of Cassation, judgement on 1/5/1989, case no 5736, judicial year 58.
138.
I herein quote Al-Otifi (1964, para 347, p. 518) in his own PhD thesis: “The principle of publicity cannot be deterred from. We have to find the balance between the interests protected by publicity and those it may harm, and limit this publicity as much as it is needed to protect those worthy-of-protection interests. It is the interest of the society that requires this publicity, thus it is not conceivable to limit publicity unless there is another interest overriding it. Such interest that would override the interest protected by publicity cannot be an individual interest, it must be an interest for the society”.
139.
Judgements on: 5/2/1977, case no 668, judicial year 41, referred to in: El-Danasoury and Okkaz (1982, p. 258), and 8/2/1978, case no 14, judicial year 46, referred to in Meligi (2012, vol. 2, para 1024, p. 814).
140.
Waly (2001, para 279, p. 468), El-Gharib (1999–2000, para 145, p. 253).
141.
Article (174) of the Law of Procedure.
142.
Article (18) of the Law of the Judicial Authority, and article (303) of the Law of Criminal Procedure.
143.
Aboulwafa (2000, p. 92).
144.
Abou Hief (1921, para 1082-3, p. 778), and Court of Cassation judgement on 8/12/1976, case no 31, judicial year 44.
145.
Ibid.
146.
According to article (163) of the law no 157 of the year 1981 on Income Tax, the court has the discretion to decide to conduct hearings of tax disputes in secrecy; absent a special rule on judgements, article (174) of the Law of Procedure, the general law applicable to court procedure in Egypt applies, and hence awards in all cases must be pronounced publicly. The same rule applied even when conducting tax disputes in secrecy was mandatory pursuant to article (94) of the predecessor of the law no 157 mentioned herein; the law no 14 of the year 1939—Judgements must always be pronounced publicly. Court of Cassation judgements on: 12/5/1996, case no 850, judicial year 60; 16/11/1995, case no 277, judicial year 59, and 1/11/1993, case no 1154, judicial year 58.
147.
Meligi (2012, vol. 3, para 1242, p. 799).
148.
El-Ashmawy (1957, vol. 2, p. 690 at B).
149.
Court of Cassation, criminal circuit, judgement on 11/3/1952, case no 901, judicial year 21.
150.
Court of Cassation judgements on: 10/3/1983, case no 926, judicial year 46; 5/5/1965, case no 95, judicial year 30, and 27/1/1965, case no 44, judicial year 31.
151.
Court of Cassation, criminal circuit, judgement on 17/6/1957, case no 475, judicial year 27.
152.
Court of Cassation judgement on 10/3/1983, case no 926, judicial year 46.
153.
Court of Cassation judgement on 22/12/1997, case no 8571, judicial year 66.
154.
Court of Cassation judgement on 5/5/1965, case no 95, judicial year 30.
155.
Article (500) of the Law of Civil Procedure.
156.
Article (12) of the Law of Criminal Procedure.
157.
Court of Cassation, judgements on: 20/11/1997, case no 7588, judicial year 63; 16/11/1995, case no 277, judicial year 59, and criminal circuit, judgement on 27/2/1962, case no 988, judicial year 31.
158.
Court of Cassation, judgement on 30/7/1990, case no 539, judicial year 55, referred to in: Meligi (2012, vol. 3, para 1246, p. 801).
159.
Court of Cassation, criminal circuit, judgement on 27/12/1987, case no 3861, judicial year 57; judgement on 5/1/1998, case no 23908, judicial year 65, and commercial circuit, judgement on 9/2/2010, case no 240, judicial year 74.
160.
Court of Cassation judgements on: 6/2/1986, case no 1883, judicial year 59; 24/12/1985, case no 483, judicial year 52, and 5/2/1985, case no 142, judicial year 54 referred to in: Aboulwafa (2000, p. 93), and commercial circuit, judgement on 9/2/2010, case no 240, judicial year 74.
161.
Court of Cassation, criminal circuit, judgement on 27/11/1996, case no 43411, judicial year 59.
162.
Court of Cassation, judgement on 8/12/1978, case no 31, judicial year 44.
163.
Al-Otifi (1964, para 407, p. 599).
164.
Court of Cassation, criminal circuit, judgement on 27/11/1996, case no 43411, judicial year 59.
165.
Case no 318, judicial year 62.
166.
The rule of public announcement of court judgements does not apply in arbitration for many reasons, among which is the fact that arbitration is always held in a private place rendering it impossible to require such public announcement in this context.
167.
Al-Otifi (1964, para 402, p. 590).
168.
Aboulwafa (2000, p. 92); El-Danasory and Okkaz (1982, p. 459).
169.
Cairo Court of Appeal, commercial circuit (108), judgement on 26/3/2008, case nos 11 and 38, judicial years 121 and 122 respectively.
170.
Article (166) of the Law of Civil Procedure.
171.
Article (167) of the Law of Civil Procedure.
172.
El-Danasoury and Okkaz (1982, p. 447); Court of Cassation judgements on: 14/2/1979, case no 1111, judicial year 48, referred to in: El-Danasoury and Okkaz (1982, p. 448); 15/6/1995, case no 3137, judicial year 61; 15/6/1995, case no 3137, judicial year no 61; 22/11/1992, case no 1470, judicial year 59, and 14/2/1980, case no 920, judicial year 46.
173.
Court of Cassation judgement on 9/12/1997, case no 157, judicial year 64, on an appeal filled by a judge who was not timely promoted, the court said that he was overtaken because he did not participate seriously in deliberations and issued suspicious judgements in which the identity of the parties and their lawyers was taken into account. El-Gharib (1999–2000, p. 247).
174.
Cairo Court of Appeal, commercial circuit no (91), judgement on 30/12/2003, case no 59, judicial year 120.
175.
Court of Cassation, criminal circuit, judgements on: 30/3/1994, case no 3635, judicial year 59; 16/1/1962, case no 621, judicial year 31; and 24/3/1959, case no 1363, judicial year 28.
176.
Court of Cassation judgement on 24/3/1966, case no 188, judicial year 32.
177.
Court of Cassation judgements on: 28/12/1971, case no 107, judicial year no 37, and 19/11/1975, case no 19, judicial year 43.
178.
Sherif (1995-July 1996, p. 145).
179.
Ibid.
180.
Sherif (1995-July 1996, pp. 144–145), and Aboulwafa (2000, para 36, p. 81).
181.
Cairo Court of Appeal, commercial circuit no (63), judgement on 20/12/1995, case no 19, judicial year 1994 Arbitration.
182.
El-Danasoury and Okkaz (1982, p. 445); Waly (2001, para 334, p. 619); Aboulwafa (1990, p. 675), and Sawy (2012, para 447, p. 710).
183.
Al-Otifi (1964, footnote 2, p. 575).
184.
Al-Otifi (1964, footnote 1, p. 575).
185.
Aboulwafa (2000, footnote 2, pp. 78–79).
186.
Abou Hief (1921, para 1081, p. 135).
187.
Cairo Court of Appeal, commercial circuit no (91), judgement on 30/5/2007, cases nos 93 and 94, judicial year 123.
188.
Waly (interview: 7/10/2010).
189.
Flett (2010, pp. 307–308).
190.
Cairo Court of Appeal, commercial circuit no (91), judgement on 29/6/2003, case no 47, judicial year 119.
191.
Cairo Court of Appeal, commercial circuit no (7), judgement on 9/1/2007, case nos 43 and 44, judicial year 123.
192.
The dissenting arbitrator in the arbitration subject of the ruling of 29/6/2003 is the late judge Yahia Al-Rifaie (1931–2010), former president of the Egyptian Court of Cassation, and honorary chairman of the Judge’s Club. He was a leading figure in defending civil rights and liberties in Egypt since the time of president Abdul Nasser in the 1960s, and until he passed away in 2010. He is the founder of what is now known as “Judiciary Independence Stream” among the judges of Egypt, which has confronted the authorities in Egypt several times, since the 1980s, particularly putting pressure on the state to pass a new legislation for the judicial authority ensuring its independence from the executive authority. His reputation and integrity were beyond doubt, as a public figure as well as a judge and a practising arbitrator.
193.
Mohamed (1999, vol. 1, p. 280).
194.
Al-Otifi (1964, para 232, p. 369).
195.
El-Gharib (1997, vol. 1, para 582-2, p. 740).
196.
Ibid.
197.
Qorma (1999, p. 630).
198.
El-Gharib (1997, vol. 1, para 582-3, p. 740) and Hosni (1988, p. 630, para 675 et seq.).
199.
Mohamed (1999, para 251, p. 282).
200.
Hosni (1988, para 674, p. 631).
201.
Obeid (1976, p. 351).
202.
Article (77) reads: “the public prosecution, the accused, the victim, the claimant and defendant in the civil suit, and their representatives can attend all inquisition proceedings. The inquisition judge may conduct it in their absence if he deems so to be necessary to reveal the truth. As soon as this necessity ends he shall allow them to be briefed about it… the parties always have the right to have their representatives present.”
203.
El-Gharib (1997, p. 739).
204.
Article (75) reads: “the inquisition procedures itself and its results are considered secrets. Interrogators, public prosecutors, and their assistants, including clerks, experts and others, who get connected to the inquisition or attend it because of their job or profession should not disclose it, and any one of them who violates this shall be punished pursuant to article (310) of the Penal Law”.
205.
Hosni (1988, para 674, p. 631).
206.
Court of Cassation, criminal circuit, judgement on 16/1/1996, case no 3478, judicial year 64.
207.
Criminal circuit, judgements on 1/12/1998, case no 19120, judicial year 66, and 8/2/1994, case no 4190, judicial year 62.
208.
Salama (2005, vol. 1, p. 357).
209.
Hosni (1988, para 679, p. 634).
210.
Article (53/1/B) of the Arbitration Law 1994.
211.
Article (35) of the Arbitration Law 1994.
212.
Al-Otifi (1964, para 301, p. 454).
213.
Al-Otifi (1964, para 298, p. 450).
214.
Al-Shawy (2006, footnote 1, p. 393).
215.
Al-Otifi (1964, para 300, p. 452).
216.
This is the article which imposes a duty of confidentiality on the professionals who get to know confidential information in the course of their practice. I shall discuss it, in further detail in Chapter 4 of this book.
217.
Salama (2005, vol. 1, p. 353), and Hosni (1988, para 676, pp. 631–632).
218.
El-Gharib (1999–2000, para 137, pp. 243–244).
219.
Abu Amer (1984, para 259, p. 664).
220.
This is according to articles (300) and (302) of the Law of Criminal Procedure which confirm that the court is not bound by any preliminary investigation or enquiry, unless there is a legal provision to the contrary, and that the judge shall rule according to his own beliefs.
221.
Sorour (1981, vol. 1, p. 763), and Awad (1981, p. 35).
222.
Op. Cit. note 15 and 16: Cairo Court of Appeal, judgements on: 9/3/2011, and 3/2/2009.

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El-Awa, M.M. (2016). Privacy and Confidentiality in the Judicial System. In: Confidentiality in Arbitration. Ius Gentium: Comparative Perspectives on Law and Justice, vol 56. Springer, Cham. https://doi.org/10.1007/978-3-319-39122-9_3

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Published: 07 July 2016
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