Doing Business In... 2021

Last Updated July 13, 2021

Egypt

Law and Practice

Author



ALC Alieldean, Weshahi & Partners is a leading Egyptian law firm that has been providing personalised services to a diverse array of national and international clients for more than two decades. The team of 40 experienced lawyers provides counsel to clients who engage in large, sophisticated transactions – from national megaprojects, cross-border acquisitions and regulatory affairs to securitised offerings, syndicated facilities, and complex litigation and arbitration cases. The firm has an unparalleled track record in legal, strategic, capital markets, operational and financial management matters, and utilises its expertise in domestic and international law to deliver distinctive, quality services to clients. ALC has headquarters in Cairo and strategic alliances with leading global law firms.

The Egyptian legal system is a civil law system inspired by the French Napoleonic Code.

The Egyptian legal system is based on codified laws adopted by the Parliament that observe the principles of Islamic law (sharia).

Under the Egyptian Constitution, the judiciary order is independent authority. The judicial authority is vested in courts of different types with distinct competences, as follows:

  • Civil Courts;
  • Administrative Courts;
  • Constitutional Court;
  • Military Courts;
  • State Security Courts; and
  • the Administrative Prosecution Authority.

The Egyptian judicial system observes the principles of due process and judicial review, as court proceedings are two-tier proceedings that involve a first-degree court and a second-degree appeal court that reviews the awards of the first-degree court.

Investment Law

Investments are governed by the New Investment Law No 72 of the year 2017 and its Executive Regulations No 2310 of the year 2017 (the Investment Law).

The General Authority For Investment and Free Zones (GAFI) is the principal government body that regulates and facilitates foreign investment in Egypt. It is also the central authority responsible for the licences, approvals and permits required for investment activities.

The different types of investment in Egypt are categorised as follows:

  • Internal Investment System;
  • Investment Zones System;
  • Free Zones System; and
  • Establishment of Technological Zones.

The licensing of each type of investment is subject to a distinct set of requirements, as set out in the Investment Law.

Limitations to Foreign Investments

Real estate restrictions

Direct foreign ownership of real estate (ie, properties such as buildings and land) is limited and is subject to certain rules and regulations governing such ownership, including restrictions on direct ownership by foreigners of agricultural land, desert land and land and real estate in the Sinai Peninsula.

Sectorial restrictions

In general, there are no restrictions on foreign investors acquiring and participating in Egyptian companies, which may be owned entirely by foreigners. However, foreign participation is restricted in certain activities, including:

  • commercial agency, which is required to be wholly owned by Egyptians or persons who have held Egyptian nationality for at least ten years;
  • importation activities for trading purposes and export whereby 51% of the shareholders must be Egyptians; and
  • Egyptian Media companies and websites.

Foreign investors obtain approval on the contemplated activity by submitting a request to obtain a licence to operate where there is a statutory requirement to obtain a licence. When there is no licence requirement, the company could operate upon its registration at the Commercial Register.

The rules governing the application for the operation licence and the relevant requirements to meet in order to obtain the licence are provided for in the rules and regulations governing the sector/activity.

The timing for completing the registration procedures and obtaining a licence to operate where applicable differs depending on the type of activity and the extent of completeness of the investor’s file.

Depending on the type of activity, sanctions may vary from fine penalties to closure of the establishment by the competent authorities.

The Investment Law does not impose any commitments on foreign investors in terms of minimum investment amount or posting investment security.

Investors can challenge any decision issued by GAFI before the Administrative Courts.

The most common types of corporate vehicles used for investments are the limited liability company (which is similar to the English limited liability company) and the joint stock company (which is similar to the French société anonyme).

Unlike the limited liability company, the joint stock company has certain advantages that make it more suitable for investments by foreign investors in Egypt, including:

  • the ease of creating security over the shares (ie, as part of any security package to the lenders of the project);
  • the ability to issue two classes of shares – ordinary and preferred shares;
  • the ability to issue shares at premium;
  • the ability to list the shares on the stock exchange; and
  • the ability to offer shares in an initial public offering.

Shareholders

There must be a minimum of three shareholders in a joint stock company.

Generally, there are no limitations on foreign participation, except as may be expressly provided under the applicable laws of a given activity.

Name

A joint stock company must operate under a commercial name derived from its business object, which may include the name(s) of its shareholders.

Duration

A joint stock company is incorporated for term of 25 years, which may be renewed for one or more additional term(s).

Head Office

The head office of a joint stock company must be in Egypt.

Purpose

A joint stock company may carry out any business purpose permitted under the applicable law.

Capital

The minimum share capital for a joint stock company is EGP250,000.

The incorporation process is typically carried out by a resident representative acting on behalf of the investor by way of a power of attorney.

The process of incorporation involves the following steps:

  • obtaining a business name availability certificate;
  • opening a bank account for the company under incorporation;
  • depositing the capital of the company;
  • obtaining a bank certificate evidencing the deposit of the full capital and its freezing until the completion of the incorporation procedures;
  • submitting the memorandum and articles of association to GAFI in order to proceed with the incorporation procedures;
  • obtaining a certificate from GAFI evidencing the incorporation of the company (the Incorporation Certificate);
  • publishing the Incorporation Certificate and the articles of association in the investment gazette;
  • registering the company with the commercial register office; and
  • opening a tax file with the Tax Authority and obtaining a tax card for the company.

The incorporation process of an investment company in Egypt involves a security check, going up to the level of the ultimate beneficial owner of the investment company.

Any change in the memorandum and articles of association must be approved by GAFI.

Any change in the shareholders of the investment company must be recorded by way of an amendment to the memorandum of incorporation and notified to GAFI for ratification.

All corporate resolutions by the investment company (including any resolutions changing the board of directors) must be submitted to GAFI for ratification to ensure the resolutions do not breach the applicable laws.

The balance sheets of the investment company must be approved by the general shareholders meeting of the investment company and then submitted to GAFI by way of reporting.

Supervision of Management Through General Assembly Meetings

The shareholders oversee the management of the company through the general shareholders meeting of the company. There are two types of general shareholders’ meetings: the ordinary general assembly meeting (OGM) and the extraordinary general assembly (EGM).

The OGM is held at least once every financial year within the three months following the end of the company’s financial year, and has the following aims:

  • to supervise and release the Board members/manager(s) from liability;
  • to approve the balance sheets and profits and loss statements;
  • to approve the Board's annual report on the company’s activity;
  • to approve the distribution of dividends and the remuneration and allowances of Board members;
  • to appoint the auditor of the company and determine his remuneration; and
  • to resolve on other matters as may be proposed by the Board, the competent authority or shareholders holding 5% of the capital of the joint stock company.

The EGM is held to decide on any amendment of the memorandum and articles of incorporation of the company, share issue, merger, spin-off or dissolution of the company.

Board of Directors

The management of a joint stock company vests in the board of directors (the Board), which must have a minimum of three members.

The Board shall appoint a chairman from amongst its members and may appoint one or more managing director(s) (ie, executive director) with such powers as the Board may determine. The chairman may also act as the managing director.

The managing director shall deal with the day-to-day business of the company and supervise the implementation of the resolutions of the Board.

Liability of Shareholders

The liability of the shareholders of a joint stock company is limited to their respective shareholdings in the company.

Egyptian law does not allow for piercing of the corporate veil by having a recourse against the shareholders for any liabilities assumed by the company.

Liability of the Board

Each member of the board (a Director) acting individually or acting collectively with the other Directors as a Board is entrusted with an agency mandate to manage the affairs of the company as an agent on behalf of the company (Agency Mandate).

The Director shall incur no personal liability as a result of the performance of the Agency Mandate as long as the acts performed by the Director fall within the limits of the Agency Mandate and comply with the applicable laws.

The applicable laws impose certain individual duties on each Director as well as collective fiduciary duties on the Board in performing their Agency Mandate (Fiduciary Duties).

The breach of any of the Fiduciary Duties is an implicit “fault” that may trigger the civil liability of the originator of such breach.

Any person who suffers damage from the breach may claim the civil liability of the originator by way of filing court proceedings before the competent courts in Egypt. This includes the company, any of the shareholders and any third party dealing with the company.

The company may claim the civil liability of the Board or a Director (as the case may be) if a fault that is attributable to the Board or the Director (as the case may be) caused damage to the company, while a shareholder may claim the civil liability of the Board or a Director (as the case may be) if a fault that is attributable to the Board or the Director caused damage to the company and/or the shareholder.

If the breach was committed by more than one Director acting individually or acting collectively as a Board, then the originators of the breach may be jointly and severally liable to compensate the damage suffered by the company or the shareholders.

Other than the liability for breach of Fiduciary Duties, a Director may be subject to penal sanctions if he or she Director commits any of the violations prescribed under the Applicable Laws.

Penal liability is a “personal” liability and may only be imposed on the originator of the violation; however, if the act results in damage to any person, then the company’s civil liability may be engaged in relation to compensation where the act was committed by the Director in the course of, or as a result of, his instructions from the company.

Directors’ liability – whether civil or penal – cannot be excluded or limited by contract or corporate resolution.

With regard to civil liability, the following measures may mitigate the Director’s civil liability:

  • submitting regular Directors’ reports to the OGM;
  • taking out a Board Liability Insurance Policy; and
  • adopting the appropriate delegation of powers to the executive director(s) and/or employees of the company.

The Egyptian Constitution establishes the right to work as a fundamental right, duty and honour, which is guaranteed by the state. The state shall protect workers’ rights, and see that work relationships between both parties are balanced during the production process. The state must also protect workers against work hazards, guarantee their safety and occupational health, and protect them from the unjustified termination of their contracts in accordance with the law. The Constitution also guarantees workers’ rights to peacefully strike, and to engage in collective bargaining.

Employment relationships (ie, the relationship between employees and their employers as defined under the Law) are primarily governed by the provisions of Labour Law No 12/2003 and relevant Minister of Manpower decrees.

Among other things, the Labour Law organises individual and collective employment contracts between employees and their employers.

Employment contracts must be in written form, can be in a bilingual form so long as the prevailing language is Arabic, and should be drawn up in in at least three original counterparts. The employer, the employee and the Office for Social Security Affairs should each receive one of the counterparts. The employment contract must include the following:

  • the name of the employer;
  • the address of the workplace;
  • the name of the employee as well as their education level and vocation;
  • the employee’s insurance number, address and identification papers;
  • a job description; and
  • the agreed upon salary and benefits, and the details of their provision.

Employment contracts can be concluded for a definite or an indefinite term. When an employment contract is concluded for a fixed term and the parties thereto continue to act thereunder beyond the expiration of such definite term, without expressly renewing the agreement for similar definite terms, the employment relationship shall be governed by the provisions governing indefinite employment contracts, provided that the employee is Egyptian. Foreign employees may not enter into indefinite term employment contracts. Furthermore, the duration of an employment contract term for a foreign employee may not exceed three years. Parties are allowed to conclude multiple definite term employment contracts, provided their terms do not exceed in aggregate five years. Employment contracts must be expressly renewed in writing.

Employers may not expect their employees to work for more than eight hours a day or a total of 48 hours a week. Those hours are exclusive of break and meal times, and should include one or more periods of time for employees to rest and eat; the aggregate of such periods should not exceed one hour per working day. In setting out break and meal times, the employer should ensure that employees do not work more than five consecutive hours. The competent Minister shall determine which cases and professions require uninterrupted work without breaks or meals times due to the nature of the work or for operation purposes. Similarly, the competent Minister’s decision shall include a list of the professions that are deemed difficult or exhausting, in which resting time should be included within the actual working hours.

The above shall not apply in cases of exceptional work requirements or situations. In such cases, the employer must inform the relevant Labour Office and seek prior written approval for the exceptional working hours arrangements. In such exceptional cases, the employee is entitled to the daily wage in addition to overtime pay as agreed in the individual or collective employment contracts. In any case, such overtime pay may not be less than 35% of the daily wage for day hours and 70% of the daily wage for night hours.

When the employee is required to work during his/her day off, the employer must pay him/her twice the daily wage and give him/her another day off during the following week. In any case, the actual working hours for an employee may not exceed ten hours per day.

The dismissal of an ill-performing employee and/or the termination of an employment relationship is strictly regulated. In practice, an employer can minimise the risk associated with the highly regulated employment rules by starting employment relationships under definite term employment contracts.

Termination

Under Egyptian Labour Law, an employment contract may be terminated for the following reasons.

  • An employment contract may be terminated during the probation period and until the last day therein. The probation period may not exceed three months. Similarly, an employee may not be employed under several probation periods of three months for the same employer. However, during such probation period, an employment relationship could be terminated for whatever reason by either party without any liability or risk of compensation.
  • A definite term employment contract is terminated at the expiry of its term. In the case of temporary and casual employees, their employment contracts end at the completion of the work that is the subject of the employment contract. The termination of a definite term employment contract is not subject to notification requirements to establish that the employment contract is no longer valid. However, the employer is advised to duly serve such termination notice at the end of the employment contract term in order to avoid the automatic renewal thereof. The termination of a definite term employment contract prior to the expiry of its term is not expressly regulated under the Egyptian Labour Law. However, in practice, an employer wishing to terminate a definite term employment contract without fault (as defined under the provisions of the Egyptian Labour Law) on the part of the employee must compensate the latter with an amount equivalent to the employee’s total salary for the remaining period of the contract.
  • In the case of definite term employment contracts that are concluded for more than five years, the employee may terminate such contract, after the lapse of five years, without any liability on his part, subject to providing three months’ notice to the employer of his/her wish to terminate the contract at a given date. However, where contracts are concluded for the performance of a specific work/job, the employee may not terminate the employment contract unless the work is finalised/completed.
  • Either party may terminate an indefinite employment contract on the condition that the terminating party would notify the other party of such intention by virtue of a written notice. However, where such termination is not justified under the cases provided for under the Law, the terminating party may be liable for the payment of compensation to the other party. An employee may not terminate an indefinite employment contract without compensation unless doing so is for legitimate and sufficient reasons related to his or her health, social or economic situation. On the other hand, an employer may only terminate an employment contract concluded for an indefinite term for the reasons provided for under the Law, or when the employer can establish the employee’s ill performance under previously approved internal regulations. An employer's unjustified termination of an employee under an indefinite term employment contract is subject to compensation, equivalent to at least two months of the last salary perceived for each year of work with the employer. It is worth mentioning that the notice period for the termination of an indefinite term employment contract is two months when the employee has worked fewer than ten consecutive years for the employer, and three months when the employer has worked more than ten consecutive years for said employer.
  • An employment contract is also terminated by the death of the employee or the total disability of the employee.
  • An employment contract automatically terminates if the employee is found guilty of a crime.
  • Finally, the employment relationship ends at the age of retirement of the employee. The statutory age for retirement is at least 60 years of age. However, the employment relationship with an employee under a definite term employment contract who has reached the age of retirement shall not end before the term of the definite term employment contract.

Dismissal

Employers may dismiss their employees on the grounds of the provisions of Article 69 of the Law or when the unsatisfactory performance of the employee can be established under internal regulations that were previously approved by the competent authorities. Dismissal must be carried out in compliance with legally required procedures.

An employer can initiate the dismissal process for an employee on the grounds of a gross fault under the provisions of Article 69 of the Law. Acts that constitute a gross fault include the following:

  • the assumption by the employee of a false identity or the submission thereby of false documents;
  • the commitment by the employee of an error resulting in considerable damages to the employer, providing the employer notifies the event to the competent authorities within 24 hours of its occurrence;
  • if the employee repeatedly fails to observe the instructions necessary to be followed for the safety of workers and the establishment, despite having been warned in writing to do so, provided such instructions are issued in writing and displayed in a prominent place;
  • the absence of the employee without legitimate justification for more than 20 intermittent days during the same year, or more than ten consecutive days, providing the discharge of such employee is preceded by a written warning by registered letter with acknowledgement of receipt, ten days following the absence in the first case, and five days following the absence in the second case;
  • if it is established that the employee has disclosed work secrets, leading to the occurrence of significant damages and harms to the workplace;
  • if the employee embarks on competing with the employer in the same activity;
  • if during working hours the employee is found to be in a state of plain drunkenness or affected by an intoxicating substance; and
  • if it is established that the employee has assaulted the employer or the general manager, or has committed a serious assault on any of his or her superiors during working hours or for work-related reasons.

Even when an employee’s act falls within the scope of application of Article 69 of the Law, said employee may not be dismissed unless the following dismissal procedures are followed.

  • The employer must conduct an interrogation of the employee regarding the facts on which the dismissal will be based.
  • The employee or the employer may apply for a committee formed of a representative of the competent administrative authority, a representative of the workers' union and a representative of the Employers' Association to settle, amicably, any dispute arising out of the employment contract within ten days of the dispute. If no settlement is reached within 21 days from the date of submission of such request, either party to the dispute may request the competent administrative authority to refer the dispute to the labour court or to have recourse to said court within a maximum of 45 days from the date when the period set for settlement has expired. This procedure must be followed regardless of whether or not a request has been filed with the committee referred to above for amicable settlement of the dispute; otherwise, the parties’ right to refer the matter to court shall lapse.
  • In practice, employers choose to settle amicably with employees when the required procedures were not followed. Generally, an agreement is reached whereby the employee receives two months' salary for each year spent in the service of the employer in exchange for a handwritten resignation and the signing of financial quittances to avoid the lengthy and cumbersome court procedures in Egypt.

Collective Dismissal for Economic Reasons

An employer may opt, for economic reasons, to partially or fully shut down an establishment, or to downscale its size and activity in a way that would affect the number of employees therein, in accordance with the rules and regulations provided for under the Law.

In such case, the employer submits a request to a committee specifically formed to this effect. Such request shall include the reasons for downscaling, and the number and categories of employees subject to dismissal.

Under a procedure of collective dismissal for economic reasons, an employer may opt to amend an employee’s agreement and amend his/her job description and cut his/her salary to the statutory minimum wage. If the employee refuses such amendment to the employment contract, he/she shall be entitled to compensation equal to one month's salary for the first five years spent in the service of the employer, and one and a half month's salary for any additional years spent at the service of employer.

In the context of collective employment contracts, collective bargaining is defined as the discussions and dialogue that occur between workers' syndicates and employers, in order to:

  • improve work conditions and rules, and the terms of use;
  • establish co-operation between the two parties to attain social development for the workers of the establishment; and
  • resolve conflicts between employees and employers.

Collective bargaining happens at the level of the establishment, or the activity branch/type, or the profession or industry, as well as at the provincial/regional and national levels.

Bargaining takes place in establishments that hire 50 workers or more, between the employer and representatives of the syndicates’ council within the establishment and the general syndicate. In the absence of a syndicates’ council within the establishment, bargaining occurs between the employee and five workers selected by the relevant general syndicate, on the condition that at least three of those five are employed at the relevant establishment.

For establishments that employ fewer than 50 workers, bargaining occurs between representatives of the relevant general syndicate, and representatives of the relevant organisation for employers or the employer himself. The representatives of all parties are considered legally authorised to carry out negotiations and execute the resulting agreement.

If one of the two parties refuses to carry out collective bargaining, the other party may request the relevant administrative authority to initiate negotiation procedures by notifying the relevant employers' organisation or the workers’ syndicate as the case may be, in order for them to initiate bargaining on behalf of the refusing party. The relevant organisation here is considered to be legally authorised to carry out negotiations and sign the collective agreement.

Salaries paid to employees are subject to income tax in Egypt, regardless of whether the employee is a resident or non-resident.

The Salary Tax rate is determined based on income brackets in an escalating manner, ranging from 0% (for annual income from EGP0 to EGP15,000) up to 25% (for annual income of more than EGP400,000).

The employer is duty bound to withhold the Salary Tax and pay it to the relevant tax authorities on a monthly basis, within 15 days following the month of the salary payment.

The Tax Law imposes corporate income tax on legal entities residing in Egypt on the income realised in Egypt as well as the income realised outside of Egypt (ie, worldwide income).

The default corporate income tax rate in Egypt is 22.5% on the net taxable profits of a company. A higher rate of 40.55% applies to oil exploration companies.

All investments made under the umbrella of the Investment Law benefit from the following incentives:

  • the Notarisation of the Memorandum and Articles of Association and of finance documentation (including security documents) is exempt from stamp duty tax and notary public fees for five years from the date of incorporation of the company;
  • the registration of ownership title of the land on which the project is established is exempt from registration fees; and
  • a flat rate of 2% (unified rate) applies on the importation of all machines and equipment required for establishing the investment project.

Projects established in Free Zones benefit from corporate income tax exemption but are required to pay the following fees:

  • Public Free Zones:
    1. a fee of 2% of the value of goods imported by storage projects on a cost, insurance and freight (CIF) basis, and 1% of the goods exported by manufacturing and assembling projects on a free on board (FOB) basis; and
    2. a fee of 1% of the total revenue of projects that do not export or import products.
  • Private Free Zones:
    1. a fee of 1% of the total revenue achieved from exporting products outside Egypt for manufacturing and assembling projects, and 2% for those products imported into Egypt from the Free Zone; and
    2. a fee of 2% of the total revenue of projects working in areas other than manufacturing and assembling.

Projects in public free zones and private free zones shall pay an annual service fee to GAFI equivalent to 0.001% of its share capital, subject to a cap of EGP100,000.

Exemption under the Tax Law

The Egyptian Tax Law provides certain tax exemptions to incentivise investment in specific industries, as follows:

  • reclamation and cultivation of land, for a period of ten years commencing in the first fiscal year in which the land is considered productive; and
  • poultry breeding projects and fisheries involving the use of fishing boats and trawlers, for a period of ten years beginning on the date when such activities are first commenced.

The Egyptian Tax Law does not recognise the concept of tax consolidation amongst entities of the same group: parent companies and their subsidiaries/affiliates/sister companies are taxed on a standalone basis.

The Egyptian Tax Law restricts thin capitalisation by providing a maximum debt-to-equity ratio of 4:1, which applies to the deduction of interest on loans from the taxable income of the company. The ratio applies to all debts extended to the company, with the exception of debt extended by Egyptian registered banks, insurance and/or leasing companies.

The Egyptian Tax Law includes transfer pricing regulation aligned with the OECD Transfer Pricing Guidelines. It applies to the commercial and financial transactions between related parties, including the exchange of goods and services and the allocation of expenses, royalties and interest.

As of 1 July 2014, the Egyptian Tax Law applies the General Anti-Avoidance Rule (GAAR), which aims to exclude any tax effect of transactions that are designed mainly to avoid tax.

The Egyptian competition law only requires post-merger notification to the Egyptian Competition Authority for transactions that involve a combined turnover in Egypt of more than EGP100 million.

Failure to comply with the post-merger notification is sanctioned by a penalty ranging between EGP20,000 and EGP500,000.

However, Egypt is getting closer to adopting a new merger control regime that would transform the system from a post-closing to a pre-closing filing regime; please see 9. Looking Forward.

The post-merger notification to the Egyptian Competition Authority shall be made within 30 days of closing the transaction.

The acquiring or merging party in a share or assets transaction is required to make the post-closing notification. In a joint venture transaction, the party that meets the control test (ie, turnover threshold) is required to submit the post-closing notification.

The notification process does not attract fees payable to the Egyptian Competition Authority.

The merger filing form requires the submission of supporting documents including financials, transaction documents, and other regulatory consents as applicable, and the commercial registration certificates of the entities involved in the merger.

The Egyptian competition law restricts cartel agreements and practices that are deemed restrictive to free market competition between competitors (horizontal competition), such as:

  • price fixing by way of maintaining, increasing or decreasing prices of products;
  • market sharing arrangements that aim to allocate/divide a market amongst competitors based on geographic areas, customers' identity or time periods;
  • bid-rigging practices, whereby competitors co-ordinate to bid or tender for the supply or procurement of products; and
  • the restriction of the manufacturing, production, distribution or marketing of products' capabilities.

The Egyptian competition law also restricts agreements and practices that are deemed restrictive to free market competition between a party and its suppliers and/or customers (vertical competition). The Egyptian competition law sets the following subjective criteria to serve as a test for the agreements and practices:

  • the market effect of the agreement or the practice in terms of free competition;
  • the consumer’s benefit resulting from the relevant agreement or practice;
  • the considerations relevant to the protection of the quality of the product and its brand name and the safety and security requirements; and
  • whether or not the relevant agreement or practice is in line with the established commercial practice of the relevant activity.

The Egyptian competition law defines a dominant position as one in which an entity's market share exceeds 25% of the total market share, giving it effective influence on the price determination or volume supply while other competitors do not have the capability to restrict the practices of the “Market Dominant Person” in the relevant market.

The Egyptian competition law sets out the following exhaustive list of restricted practices that a Market Dominant Person should not carry out:

  • any act that leads to a restriction of the manufacturing or distribution of a product during a period of time;
  • abstaining from concluding a sale or purchase agreement with any person or ceasing dealing with that person, in a manner that limits market access or exit at any time;
  • an act that imposes restrictions on the distribution of a specific product based on geographic criteria, the identity of customers or time periods or seasons;
  • concluding the sale of products on conditions that differ from the original conditions with the view to imposing said conditions on consumers;
  • discriminating between sellers or buyers of equal standing regarding the sale or purchase prices or the terms and conditions of the sale;
  • abstaining from manufacturing or supplying a scarcely available product when its production is economically viable;
  • instructing the suppliers of the Market Dominant Person not to give a competitor access to their facilities or services, when doing so is economically possible;
  • selling goods or services below their marginal or average variable cost; and
  • restricting a supplier from dealing with other competitors.

Definition

In Egypt, a patent must be novel, creative and industrially applicable in order to be registered and for intellectual property rights granted thereto. An invention is not deemed novel when and if:

  • a filing had been made for a similar invention, or when – prior to the date of the filing of the patent application – a patent has been actually granted for a similar invention or part thereof in Egypt or abroad; or
  • the invention that is the subject of the patent application had previously been used or exploited, publicly, in Egypt or abroad, or when – prior to the submission of a request for patent registration – the invention has been described in detail to the public in a way that would facilitate the use and exploitation thereof by people with relevant experience.

Inventions affecting national security, public order or morals, the environment and public health cannot be subject to patent registration. Furthermore, certain discoveries cannot be patented, in order to guarantee the dissemination of knowledge into society. Such knowledge includes scientific theories, mathematical methods, medical treatments and surgeries, and biological materials.

Period of Protection

A patent confers protection on its owner for a period of 20 years from the date of filing the patent request.

A patent will give its owner the right to exploit the patented invention and the right to prohibit anyone from using and exploiting the patented invention.

Employees who develop an invention as part as their job shall be compensated for their inventions; the same applies to inventions that were subject to an obligatory licence.

Procedures, Enforcements and Remedies

Applications for patent registration must be filed in three counterparts in the Arabic language to the Patent Office at the Scientific Research Academy. The file must include a very detailed description of the invention.

The Patent Office will review the application file to verify that the invention is novel, represents an inventive step and is industrially applicable. It will further examine whether the application prerequisites were duly met. Objections and appeals can be filed within a period of 60 days from the date of publication of the patent application; this period is extended to 90 days where the patent applications are deemed to be related to defence, military production or public security. The patent office is competent to decide on any objections raised. Legal recourse may be taken against the decision of the Patent Office.

Trade marks are governed under the Intellectual Property Rights Law No 82 of the year 2002 (IPR Law).

Definition

Article 63 of the IPR Law defines a trade mark as “all that characterises a product, be it a commodity or a service.” It also sets out the condition that trade marks must be discernible by sight, in all cases.

The legal owner of a trade mark may prevent third parties from importing, using, selling or distributing the products characterised by this mark, unless he or she markets these products in any country or authorises a third party to do so.

The owner of a “well-known” trade mark, both in Egypt and worldwide, shall have the right to enjoy the protection conferred by the IPR Law even when said mark is not registered in Egypt (Article 68 of the IPR Law).

Certain marks are ineligible for trade mark registration, such as those that violate public order and morals, those that are attributable to public or international institutions, those that pertain to third parties, those without original characteristics and those that profess misleading geographical indications.

Period of Protection

According to Article 90 of the IPR Law, a trade mark is protected for a period of ten years, which can be renewed any number of times.

An application for renewal must be submitted during the final year of the period of protection, or at the latest three months following the expiration of the protection, provided appropriate notification was submitted to the trade mark office.

Registration of Trade Marks

The Trademarks and Industrial Designs Office at the Internal Trade Development Authority of the Ministry of Trade and Industry (ITDA) is the competent authority for the registration of trade marks in Egypt. Ownership of a trade mark and conferring protection thereupon is subject not only to the proper registration thereof with the ITDA, but also to its use within five years of said registration (Article 65 of the IPR Law).

Trade marks are registered under certain classes for goods and services, and protection thereof will be limited to the class under which the products or services are registered.

In order for a trade mark to be considered protected, the decision approving the application of registration issued by the ITDA must be published in the ITDA Trademarks and Industrial Drawings and Designs Gazette. Third parties may oppose the ITDA’s decision to approve the application for trade mark registration, in which case the opposing party has 60 days to file an opposition before the competent committee. When the committee rejects the opposition, the third party may appeal such decision; if such appeal is equally rejected, the third party may file a claim before the State Council to seek the cancellation of the ITDA decision. However, upon the lapse of a period of 60 days from the date of publication of the approval of the trade mark registration application without any opposition, the trade mark is deemed finally registered. The trade mark registration date will be the date of the filing of the application for trade mark registration before the ITDA.

Industrial designs and models are governed under the IPR Law.

Definition

Article 119 of the IPR Law defines industrial designs and models as “all script layout and all forms embossed, whether in colour or not when it adopts a discerned appearance characterised by novelty and is industrially applicable.”

Industrial designs and models are not deemed novel when they are publicly displayed or described or used prior to the date of the submission of the request for registration.

Period of Protection

Industrial designs or models are protected for a period of ten years, starting from the date of the submission of the request for registration in the Arab Republic of Egypt.

The protection may be renewed for another five years if a request for renewal is submitted during the last year of the period, or within three months following the expiry of the protection period.

Extent of the Protection

Registration of the industrial design or model allows its owner to prohibit third parties from manufacturing, selling or importing products that infringe upon said design or model.

Protected industrial designs or models can be used for non-commercial, educational or scientific purposes, and whenever used without prejudice to the owner’s interests.

Registration Procedures

The Trademarks and Industrial Designs Office at the ITDA is the competent authority for the registration of industrial designs and models.

The procedures for filing the registration application for industrial designs and models are similar to those for the registration of trade marks, varying only in the requirements of the file submission.

As is the case with trade marks, approval of the application requires the publication thereof. As for the rejection of the application, the same rules and regulations for filing oppositions and appeals shall apply (see 7.2 Trade Marks).

Copyrights are governed under the IPR Law.

Definition

Article 140 of the IPR Law confers the authors of literary and technical compilations protection in Egypt. A "compilation" is defined under Article 138 of the IPR Law as “any literary, technical or scientific compilation, whatever its kind, the method of expressing it, its importance, or the purpose of its composition.” Accordingly, copyright protection shall be conferred to the following:

  • books, booklets, articles, publications and other written compilations;
  • computer software;
  • databases;
  • lectures, speeches and sermons;
  • drama compilations;
  • musical compilations;
  • audio-visual compilations;
  • architectural compilations;
  • drawing compilations, carvings and prints;
  • photographic compilations;
  • applied and plastic art compilations;
  • illustrative figures, geographical charts, sketches and three-dimensional compilations; and
  • derived compilations solely to the extent of the derivations from the original compilation.

The title of a compilation can be protected if it is original and innovative.

Extent of the Protection

Copyright grants the author of a compilation the exclusive right to:

  • license the use of his/her compilation; and
  • prohibit third parties from exploiting his/her work in any way, especially through copying, broadcasting, re-broadcasting, public diction and performance, public transmission, translation, editing, lending, loaning or making it accessible to the public, including its accessibility through computers, the internet, data networks or communications networks, and other methods.

In addition, an author has non-prescriptive and inalienable rights on his protected compilations, such as:

  • the right of first distribution to the public;
  • the right to relate the work to himself or herself; and
  • the right to prevent the misrepresentation of such compilation.

Copyright protection under the IPR Law also addresses the author’s financial rights. An author may dispose of all or part of his or her financial rights to third parties, provided that such transfer may be established in writing and detailed with regards to its extent, purpose, duration and place.

However, the IPR Law prohibits an author from disposing of the entirety of his/her future compilations.

Duration of the Protection

The author’s financial right is protected during the life of the author and for a period of 50 years following his/her death.

Registration of Copyright

Under the Egyptian IPR Law, the ownership of copyright is not established through the formal registration of compilations with the competent authorities, but a recent amendment to the IPR Law No 178 of the year 2020 requires that each Ministry competent under the IPR Law creates a unit for the registration of authors’ compilations and any licence rights and assignments thereof. Transfer of the relevant rights will not have effect vis-à-vis third parties until the compilation is registered before the competent authority.

Software

Software is protected under the rules and regulations governing copyright. The Minister of Telecommunication Decree No 107 of the year 2005 created the Intellectual Property Office for the protection of Software (IPR Office) under the Information Technology Industry Development Agency (ITIDA).

The IPR Office is competent to offer the following services:

  • granting an operation licence for new software products, IT enterprises, net cafés and computer games shops;
  • registering a new software product and the updates thereof;
  • registering licence agreements and assignment of the registered software and the updates thereof;
  • registering restrictions on the use of a licence to use certain software; and
  • granting a licence for copying, selling and circulating a software product.

Databases and Trade Secrets

The Egyptian IPR Law protects trade secrets and databases.

Undisclosed data and information will be protected under the Egyptian IPR Law when the information is secret by nature – ie, the information in its entirety or the elements of its constitution are not known nor in circulation in the public domain of those working in the field to which it is relevant. Furthermore, the commercial value of the information should derive from the secrecy thereof. Finally, the secrecy of the information should depend on the extent of the measures taken by its holder to effectively preserve it.

Owners of undisclosed information and trade secrets must exert reasonable efforts to preserve the secrecy of such information.

The protection conferred to the owner of undisclosed data and information is limited to the right to prohibit third parties from infringing such information by way of unfair commercial practices. The law sets out an exhaustive list of what is deemed unfair commercial practices that give the owners of undisclosed data and information grounds for legal recourse before Egyptian Courts.

The New Data Protection Law No 151 of the Year 2020

The long-anticipated law governing the protection of personal data and privacy was promulgated and issued on 16 October 2020. The Data Protection Law 151/2020 (DPL) is the main legislation pertaining to the protection of personal data, and specifically focuses on safeguarding the personal data of individuals that is stored, processed or controlled electronically through online platforms.

The DPL is greatly modelled on the European Union’s General Data Protection Regulation (GDPR).

The law introduces rights for data subjects (ie, individuals whose data is being electronically stored, processed or controlled) and obligations for the controllers and processors of such personal data.

It is applicable to personal data that belongs to Egyptians residing in Egypt and abroad, as well as foreigners residing in Egypt.

The DPL regulates and governs the usage of personal data of individuals and sets the rules for the disclosure of such data. It expressly prohibits the storing, processing, disclosure, use and transfer of personal data without the express prior consent of the concerned data subject.

The Anti-Cyber and Information Technology Crimes Law No 175 of the Year 2018

In 2018, the Anti-Cyber and Information Technology Crimes Law No 175 of the year 2018 (the Cyber-Crime Law) was promulgated in an attempt to protect data available through information technology and its transfer against piracy and cyber-crimes, and to enhance the regulation of data processing and e-commerce activities. It also provides certain technical standards regarding data protection.

The DPL is applicable to personal data that belongs to Egyptians residing in Egypt and abroad, as well as foreigners residing in Egypt. Accordingly, the duties of a foreign company targeting data subjects in Egypt will vary depending on whether they act as holders, processors or controllers.

Rights of Data Subjects

Under the DPL, data subjects have the following basic rights:

  • to be aware of, review, access and obtain personal data that belongs to them and is held by any holder, controller or processor;
  • to withdraw consent previously granted for the retention or processing of personal data;
  • to rectify, edit, erase, add or update their personal data;
  • to limit the processing of their personal data to a limited scope; and
  • to have knowledge of any breach in relation to their personal data.

A data holder/processor/controller must respond to the data subject’s request in relation to these rights within six days of receiving the request.

Additionally, the proper collection, processing and storage of the data must conform to the following:

  • data must be collected for legitimate and specific purposes, of which the data subject must be aware;
  • data must be correct, safe and secured;
  • data must be processed in a legitimate fashion and for the purpose for which it was collected; and
  • data must not be stored for a period longer than necessary for the purpose of its storage.

A violation by a data holder, processor or controller of these data subject rights is subject to a penalty of between EGP200,000 and EGP1 million.

Cross-border Transfer of Personal Data

The transferring or sharing to a foreign country of personal data that is collected or prepared for processing is prohibited unless such country guarantees the personal data a level of protection that does not fall below that stipulated under the DPL.

The Personal Data Protection Centre (PDPC) is yet to be established.

According to the DPL, the PDPC should be established upon the promulgation of the DPL Executive Regulations, within six months of the date of the issuance of the DPL. The PDPC should aim to protect personal data and regulate the activities of processing and granting access to such personal data.

Particularly, the PDPC shall have the right to do the following:

  • set and develop the policies and strategic plans as well as the programmes necessary to protect personal data and the implementation thereof;
  • unify the policies and plans to secure and process personal data within the Arab Republic of Egypt;
  • regulate and implement the decisions, regulations, safeguards, procedures and criteria related to the protection of personal data;
  • put in place a framework for the code of conduct related to the protection of personal data and approval of the code of conduct of the different entities;
  • co-operate with all the entities, including governmental and non-governmental bodies, in guaranteeing personal data protection procedures, and communicate with all related initiatives;
  • build the capacity of those who will work in all the governmental and non-governmental entities on the protection of personal data;
  • issue licences, permits, certifications and various measures related to the protection of personal data and apply the provisions of the DPL;
  • accredit entities or individuals and grant them permits to provide consultation in relation to personal data protection measures;
  • receive complaints and filings related to the provisions of the DPL and issue decisions thereon;
  • comment on various draft laws and international agreements that regulate or relate to personal data, or the provisions of which directly or indirectly have an impact on personal data;
  • regulate and inspect those subjected to the DPL, and initiate the necessary legal procedures;
  • verify the conditions of cross-border movements of personal data and take decisions governing such movements;
  • organise conferences, workshops, training and educational courses, and issue publications to raise awareness and educate individuals and entities about their rights in relation to personal data;
  • provide all types of expertise and advice related to the protection of personal data, particularly to investigative authorities and the judiciary;
  • enter into agreements and memoranda of understanding, co-operation and knowledge exchange agreements with international entities that are relevant to the PDPC’s work and in accordance with the mechanisms followed in this regard;
  • issue circulars that update the personal data protection measures, in accordance with the activities of different sectors and the PDPC's recommendations; and
  • prepare and issue an annual report on the status of protection of personal data in the Arab Republic of Egypt.

More insight about the PDPC’s role should come with the issuance of the DPL Executive Regulations.

New Merger Control Regime: Pre-closing Filing Regime

On 25 November 2020, the Cabinet of Ministers announced its approval of certain amendments to the Egyptian Antitrust Law and referred it to the Parliament to consider its enactment.

The proposed amendments aim to introduce the concept of “Economic Concentration” to the Egyptian Antitrust Law. The term “Economic Concentration” is expected to capture entities resulting from mergers as well as direct and/or indirect share and/or asset acquisitions and hence transactions leading to the creation of an “Economic Concentration” will have to be approved by the Egyptian Competition Authority by way of the pre-closing filing regime.

The amendments are expected to be voted on by the Parliament during 2021.

It is likely that the amendments will have immediate effect, with no transition period.

The proposed amendment suggests that the turnover thresholds for determining an “Economic Concentration” will be determined by the Executive Regulations, which are to be issued by the competent minister after enactment of the amendments. However, the proposed draft amendment also suggests interim thresholds (ie, until the Executive Regulations are issued by the competent minister), as follows:

  • if the annual turnover achieved or the aggregate cumulative assets in Egypt for the persons included in the Economic Concentration transaction, as per the last approved consolidated financial statements, exceed EGP250 million; or
  • if the annual turnover achieved or the aggregate cumulative assets worldwide for the persons included in the Economic Concentration transaction, as per the last approved consolidated financial statements, exceed EGP1 billion and the revenues in Egypt for at least one person involved (in the transaction) as per the last approved consolidated financial statements exceed EGP150 million.

The above thresholds remain indicative and subject to the final approval of the Parliament.

The draft amendments remain under discussion by the Parliament and the outcome in terms of the final provisions and timing of enactment remains uncertain.

BEPS Implementation

Egypt adhered to the OECD’s BEPS Project regarding tax erosion, which requires the implementation of the four minimum standard action points of the BEPS Project. Egypt opted to apply, amongst other standards, the “principal purpose test” to its covered dual tax treatment agreements (DTTs), which will likely impose firmer substance requirements on the claimants of DTT benefits.

ALC Alieldean, Weshahi & Partners

5 Abdel Kawy Shams
Dokki
Giza
Egypt

+3336 4312

+3338 6709

amr.namek@alc.law www.alc.law
Author Business Card

Trends and Developments


Author



ALC Alieldean Weshahi & Partners is a leading Egyptian law firm that has been providing personalised services to a diverse array of national and international clients for more than two decades. The team of 40 experienced lawyers provides counsel to clients who engage in large, sophisticated transactions – from national megaprojects, cross-border acquisitions and regulatory affairs to securitised offerings, syndicated facilities, and complex litigation and arbitration cases. The firm has an unparalleled track record in legal, strategic, capital markets, operational and financial management matters, and utilises its expertise in domestic and international law to deliver distinctive, quality services to clients. ALC has headquarters in Cairo and strategic alliances with leading global law firms.

Opportunity for Practitioners and Investors Alike in Egypt’s Compelling Debt Capital Market

To borrow from Mr Dickens, COVID-19 has seen both the best of times and the worst of times for Egypt’s capital markets – “best of times” for issuers of (and investors in) debt instruments, but rather more challenging if equities are more your flavour.

Egypt’s benchmark EGX30 was down 23% in 2020 and is lagging 8% year-to-date in 2021 after the exit of international institutions in the early days of the pandemic. The country has since broken a nearly two-year IPO drought (Egypt’s first listed pure-play higher education provider) and seen its first ever technical listing (of London-listed consumer healthcare giant IDH), and at least four companies are on deck with potential offerings for the fall listing window.

By contrast, the nation’s debt capital markets have been very active, with Egyptian issuers setting new national records for the largest securitised offering and largest sukuk (a form of sharia-compliant bond) during the pandemic. The secondary market for debt is starting to take shape, and the pipeline of companies preparing to take issuances to market in the back half of the year is deep and varied. Indeed, securitisation, Islamic finance and corporate bonds have taken off in a way that the CEO of the region’s largest investment bank recently described as “extraordinary”.

Developments in the real economy support an optimistic outlook for corporate Egypt: it was one of only two economies in the Arab world to grow last year (+3.6%), and GDP is comfortably on track to return to pre-pandemic levels north of 5% by 2022, with the IMF’s World Economic Outlook pencilling in 5.7% growth for the state’s 2021–2022 fiscal year.

This is a position of which regulators including the Financial Regulatory Authority (FRA) are more than passingly aware. Legal and regulatory changes (including a drive to make debt more tradable) have been key drivers of the market’s development, and two new legal changes expected in the second half of this year should look to add depth and complexity to the debt market: the securitisation of future, off-balance-sheet cash flows and the launch of sovereign sukuk.

These new instruments will create new ways of driving corporate growth, and open new investment opportunities for fund and treasury managers the world over.

COVID-19 Did Nothing to Sap Energy from the Debt Market

Egypt’s debt market has boomed despite the pandemic: Egypt had listed corporate bonds, securitised bonds and sukuk worth a total of EGP9.75 billion at the end of June 2019 (the end of the state’s fiscal year), according to Central Bank of Egypt data. That figure rose to EGP21.8 billion by June 2020, to EGP30.86 billion by the end of 2020, and stood at EGP36.83 billion as of the end of April 2021, the most recent period for which full data is available.

Enterprise, the country’s respected business daily, tracked a total of 13 bond issuances in 2020 (12 securitised and one conventional) raising just north of EGP20 billion. That is down slightly from the EGP22 billion raised from 18 offerings (all securitised) the previous year, but is still a solid performance for a pandemic year that involved coping with lockdown and a transition to working from home. While real estate developers continued to be the most aggressive in taking securitised bonds to market, they were followed closely in 2020 by players in the country’s booming non-bank financial services (NBFS) industry, including providers of factoring, consumer finance and leasing services.

2020 also saw the quiet debut of corporate sukuk and green bonds. Two high-profile issuers issued sukuk worth a combined EGP4.5 billion last year, and Egypt’s FRA said at the end of 2020 that it expects another EGP10 billion worth of issuances in 2021. With Egypt's first sovereign green bond under its belt, the Commercial International Bank (CIB, the country’s largest private sector bank) became the first to announce a corporate green bond with backing from the International Finance Corporation.

Securitisation of Future Cash Flows

For more than 15 years, Egyptian corporations have been able to issue bonds backed by on-balance sheet accounts receivable – the key words here being “on-balance sheet”. The exciting new development is that the FRA is moving ahead with amendments to the Capital Markets Act that would allow the issuance of bonds backed by expected future cash flows that do not yet exist on the company’s balance sheet.

Writing in an explanatory note, the chairman of the FRA noted that the new financing tool could be of great benefit to state-owned (or “public”) entities, providing them with an alternative source of finance. It noted in particular that such a tool could benefit state-run companies and institutions that provide a number of public utilities to citizens on a daily basis. “Sustainability” and “growth” are key words in this respect, particularly as the note singles out industries such as electricity distribution, water, telecommunication, transport, roads, health, education and housing as among those that may benefit from the instruments. There is also discussion now in the business press on the securitisation of future taxes or electricity bills.

Egypt is not alone: the note further states that the FRA has found a number of other countries that allow the securitisation of future cash flows.

The private sector will also benefit. Although the FRA’s explanatory note emphasises the benefits to public entities, it is clear from the language of the amendment that private-sector companies can also use the proposed instrument, opening significant new opportunities for corporations with reliable future cash flows that may wish to pursue new avenues to obtain finance. Membership-driven sporting clubs and private-sector utilities are expected to be among the first in line.

Pointing to the clear success of traditional securitisation, the FRA bluntly predicts that the securitisation of future cash flows will prove equally successful in the Egyptian market. The take-home message is that this is not a trial balloon, but a serious proposal for a very real financial instrument that is now in its final stages.

The legal amendment that introduces the concept of bonds backed by future cash flow will be made by way of adding a chapter to existing legal provisions governing securitisation. This chapter will include two or three articles that will solely aim to introduce the principle of the securitisation of future cash flows. The existing legal provisions of traditional securitisation will serve as the basis and foundation for the securitisation of future cash flows and will be equally applicable to this new form of bonds. This approach by the FRA is likely to contribute to the success of this new financing instrument, as the nation’s community of advisers – from lawyers to investment and commercial bankers – is already familiar with the majority of the rules and provisions governing securitisation.

There are clearly questions still to be answered. The draft does not make clear how these bonds will be structured or how documentation will address the risks and challenges relating to future cash flows. These challenges are more pronounced when the issuer of the bond expects the bond to be off-balance sheet (as is the case with securitised offerings, meaning bond-holders have recourse over only the portfolio covered by the issuance and not the issuer). This will require a lot of work from all advisers and consultants on each bond, but it is certain that Egypt will witness its first securitisation bond of future cash flow before the end of 2021.

The Introduction of Sovereign Sukuk

Egypt is relatively new to the global, multitrillion-USD Islamic finance market and, as noted above, 2020 was the year in which it started catching up through the issuance of its first private-sector sukuk. These included a EGP2 billion issuance by a major private-sector real estate developer and a EGP2.5 billion issuance by consumer and structured finance player Sarwa Capital.

Sukuk (the Arabic plural form of the word “sakk” or “certificate”) is a sharia-compliant instrument of co-ownership and co-investment in cash-generating assets. Sukuk need the approval of an accredited religious committee composed of scholars who provide a written report that a given sukuk structure is compliant with sharia.

With the private-sector precedent now set, Egypt’s House of Representatives is now in the final stages of discussing a law that would permit sovereign sukuk – an instrument the Finance Ministry has made clear it is eager to take to market. The law will set out a framework that will regulate Egypt’s sovereign sukuk issuances, including governing how the sharia-compliant debt is securitised and traded. Once ratified, the executive regulations for the bill are expected to be issued within three months.

The draft law proposes that sukuk can be issued in Egyptian pounds or in foreign currencies, via both public and private placements in local or international markets. The law has outlined specifical forms of sukuk, including mudaraba, murabaha, ijara and istisnaa. The draft law also makes it clear that fixed and movable assets that are publicly owned by the state cannot be subject to sukuk – only the usufruct rights of fixed and movable assets privately owned by the state can be subject to sovereign sukuk. Article 7 of the law proposes that a prime ministerial decree shall be issued to define those assets that are publicly held by the state, and further confirms that the sale or lease of privately owned assets is prohibited. Only a usufruct right can be granted.

Usufruct is a real right (in rem) giving its holder the right to use a property owned by another person for a specific period of time. During this period, the holder of the usufruct right can use the property and commercially exploit it.

Key Points of the Draft Law

The key points of the draft law are as follows:

  • the Ministry of Finance is the only governmental body that can issue sukuk, and the proceeds shall be used to fund the state’s budget; an account in the Central Bank shall be opened to channel the proceeds;
  • issuance of the sukuk shall be made through a special purpose vehicle (SPV) that shall be established for this purpose and act as an agent for the holders of the sukuk. This company will administer and manage the issuance;
  • the SPV shall be issued by a decision of the Prime Minister and shall be fully owned by the state. The governance of the company and its management shall be set out in the Executive Regulations of the law;
  • a governmental committee shall be established to evaluate the assets the usufruct of which shall be subject to the sukuk; a Prime Minister decree shall be issued to set out the basis for such evaluation;
  • the maximum tenor of the sukuk is 30 years;
  • the SPV is exempt from all forms of taxes (direct and indirect) and from all fees related to registration and notarisation;
  • sukuk issued in Egypt, whether in Egyptian pounds or foreign currency, shall be listed on the Egyptian Stock Exchange; those issued abroad in foreign currency shall be listed on the relevant international stock exchange. In all cases, it shall be subject to the applicable rules relating to governmental securities and debt instruments;
  • a religious committee shall be established by the law; a decree from the Prime Minister shall be issued setting out the terms of reference of the committee; and
  • the prospectus or information memorandum of the sukuk can have arbitration as the dispute settlement mechanism in respect of local and international sukuk.

The government plans to take its first sukuk to market as soon as the law is ratified. In order for this to happen, the executive regulations of the law need to be issued and all the prime ministerial decrees referred to in the law would have to be issued. The issues that need to be settled include the following:

  • What are the exact assets that may be subject to sukuk?
  • How would the evaluation committee evaluate such assets?
  • Would the usufruct of these assets over 30 years be viable to investors?
  • Would the SPV be given the necessary powers to negotiate the terms of the sukuk and adequately administer the issuance?
  • Would the sukuk be off-balance sheet or require a guarantee from the Ministry of Finance?

Conclusion

We are, then, extremely excited about the state of the nation’s debt market at the half-year mark. Two exciting new instruments are about to be made possible. More than a dozen companies are known to be exploring traditional securitised issuances and corporate sukuk. The country's first private-sector green bond is in the pipeline. And a strong economy is floating all boats – not just the real estate and NBFS players that benefit from traditional securitisation, but also the clubs and utilities and others who might be in a position to take advantage of an instrument allowing them to securitise future off-balance sheet cash flows.

ALC Alieldean Weshahi & Partners

5 Abdel Kawy Shams
Dokki
Giza
Egypt

+3336 4312

+3338 6709

info@alc.law alc.law
Author Business Card

Law and Practice

Author



ALC Alieldean, Weshahi & Partners is a leading Egyptian law firm that has been providing personalised services to a diverse array of national and international clients for more than two decades. The team of 40 experienced lawyers provides counsel to clients who engage in large, sophisticated transactions – from national megaprojects, cross-border acquisitions and regulatory affairs to securitised offerings, syndicated facilities, and complex litigation and arbitration cases. The firm has an unparalleled track record in legal, strategic, capital markets, operational and financial management matters, and utilises its expertise in domestic and international law to deliver distinctive, quality services to clients. ALC has headquarters in Cairo and strategic alliances with leading global law firms.

Trends and Development

Author



ALC Alieldean Weshahi & Partners is a leading Egyptian law firm that has been providing personalised services to a diverse array of national and international clients for more than two decades. The team of 40 experienced lawyers provides counsel to clients who engage in large, sophisticated transactions – from national megaprojects, cross-border acquisitions and regulatory affairs to securitised offerings, syndicated facilities, and complex litigation and arbitration cases. The firm has an unparalleled track record in legal, strategic, capital markets, operational and financial management matters, and utilises its expertise in domestic and international law to deliver distinctive, quality services to clients. ALC has headquarters in Cairo and strategic alliances with leading global law firms.

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