By: Ashraf Feshawi – Partner
Mohamad Hoballah – Associate
Ibrahim ElAmin – Paralegal
Similar to judgments issued by other courts, decisions and orders issued by the Enforcement Court can be contested for errors through specific appeal or objection procedures. The appeal process depends on the nature of the decisions and orders being challenged. An enforcement judge’s decisions cover a range of matters, including both substantive disputes and urgent, provisional issues. An enforcement judge is responsible for adjudicating substantive disputes, performing provisional acts, issuing orders on petitions, and overseeing decisions related to enforcement procedures.
A notable feature of the new Judicial Enforcement Law (Law No. 4 of 2024) is the establishment of a specialised Enforcement Court responsible for adjudicating execution requests, substantive and provisional disputes, and the issuance and enforcement of judgments, decisions, and orders concerning these matters. These decisions, orders, and judgments correspond to those previously outlined in Article 366 of the Civil and Commercial Procedures Law (Law No. 13 of 1990)(“CCPL”). The Judicial Enforcement Law also introduces a new mechanism for appealing the decisions, orders, and judgments issued by enforcement judges.
Under the repealed CCPL, enforcement was supervised and managed by enforcement judges from either the Plenary or Summary Courts, depending on legal jurisdiction rules. Procedures before the Enforcement Judge were similar to those before the respective courts unless stipulated otherwise by law. This judge had exclusive competence to adjudicate all substantive and provisional execution disputes and issue related decisions and orders[1]. Objections to enforcement procedures before the Enforcement Judge could not be based on challenging or correcting the judgment to be enforced[2].
However, appeals against judgments issued by the Enforcement Judge were permissible unless the law provided otherwise[3]. Such appeals were to be filed before the competent Court of Appeal within seven days, in accordance to Article 157 of the aforementioned CCPL. Since an enforcement judge issues decisions, orders, and judgments[4], the prior law differentiated between appeals of decisions and orders versus judgments, limiting appeals to judgments only while permitting objections to the Enforcement Judge’s decisions and orders concerning enforcement, provided that the objection was not based on challenging the judgment intended for enforcement, or its validity.
The new Enforcement Law introduces a revised appeal mechanism by establishing an appellate chamber within the new Enforcement Court. According to Article 38 of the Judicial Enforcement Law, one or more appellate chambers are formed within the Enforcement Court to hear appeals against orders and decisions issued by the Enforcement Judge, within ten working days of notification or knowledge thereof. This chamber also handles provisional disputes or objections affecting execution. Appeals must be filed through a petition that includes the details of the appellant, the respondent, the enforcement number, and grounds for appeal. Judgments by the appellate chamber are final and non-appealable.
The chamber may also order a temporary stay of execution until its judgment is issued. The procedures for appeal and the issuance of judgements are governed by the provisions set forth in the aforementioned CCPL. Objections to enforcement procedures are not permitted if based on challenging the judgment intended for enforcement or its validity.
Thus, litigants have the right to appeal both orders and decisions of enforcement judges, as well as provisional disputes and objections affecting execution, before the appellate chamber in the new Enforcement Court. The Enforcement Court may, upon request by the litigants, decide to temporarily suspend enforcement pending its judgment.
It is noteworthy that, according to the fourth paragraph of Article 38 of the Judicial Enforcement Law, appeals against judgments of the appellate chamber cannot be submitted to the Court of Cassation, as these judgments are final and non-appealable. However, ambiguity arises from the fifth paragraph, which states that the provisions of the CCPL shall apply to judgments issued in the appeal. These provisions address the methods of appealing judgments and do not prohibit an appeal unless the judgment is final. Further, Law No. 12 of 2005 concerning Cases and Procedures of Cassation Appeals in Non-Criminal Matters, in its first article, states that:
The parties may appeal in cassation any final judgment issued by the Court of Appeal in the following cases:
- If the appealed judgment is based on a violation of the law, an error in its application, or an incorrect interpretation.
- If there is a nullity in the judgment or in the procedures that affected the judgment.
The parties may appeal in cassation against any final judgment, regardless of the court that issued it, if it resolves a dispute contrary to a previous judgment that has acquired the force of res judicata between the same parties.
In our view, this ambiguity is resolved by the specific provision in the Enforcement Law stating that no appeal is permitted, and the reference to the CCPL applies only where the Enforcement Law does not provide specific provisions.
Additionally, under the Judicial Enforcement Law, a party subject to enforcement can object to enforcement before the newly established Enforcement Court, based on claims of full or partial payment compliance, fraud, or other claims as per Article 33 of the new law, within ten working days of notification. The judge may grant up to ninety working days for the defendant to file a substantive case to prove their claim and suspend execution during this period. The judge or the court of subject-matter jurisdiction may extend the suspension period as appropriate. The judge may reject the request for enforcement if he considers that the enforcement necessitates the resolution of substantive issues.
Moreover, it is also permitted under Article 20 of the Judicial Enforcement Law to file a grievance against an order denying the enforcement of an arbitral award, in accordance with the provisions of Article 35 of the Civil and Commercial Arbitration Law (“Arbitration Law”). The Arbitration Law, especially subsection (3), provides that the grievance is to be filed before the competent court within thirty days from the date of issuance of the order.
In conclusion, the Judicial Enforcement Law has reorganised the mechanisms available for litigants to object to and challenge the decisions of the Enforcement Judge , and the most prominent thing it introduced was the Appeal Chamber within the Enforcement Court, which would limit this jurisdiction to that court and unify the decisions it issues, thereby ensuring the stability and consistency of judicial judgments according to unified standards.
[1] Article 363 of the Civil and Commercial Procedures Law No. (13) of 1990.
[2] Paragraph 1 of Article 364 of the Civil and Commercial Procedures Law No. (13) of 1990.
[3] Article 365 of the Civil and Commercial Procedures Law No. (13) of 1990.
[4] Article 366 of the Civil and Commercial Procedures Law No. (13) of 1990.
