THE MIXED COURTS OF EGYPT,1875-1949;A STUDY OF THEIR DEVELOPMENT AND OPERATION,AND THEIR INFLUENCE ON POST-WAR EGYPTIAN LAW MARK STANLEY WADIH HOYLE Submitted for the Degree of Doctor of Philosophy. School of Oriental and African Studies (University of London) Department of Law. v SEPTEMBER 1983. (c) 1983 Mark SW Hoyle ProQuest Number: 11015845 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11015845 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT. This study starts with an Introduction,describing the historical background of Egypt.Chapter 1,Origins of the Mixed Courts,covers the build up to the reforms of 1875,and Chapter 2 deals with the Structure and Laws of the Mixed Courts,including their organisation,judiciary,and administration,and how the sovereignty of Egypt was affected.Chapter 3,the first of seven chapters dealing with the history of the courts over their lifespan, is on 1875 to 1885,which covers the first important move of the Mixed Courts-upholding the law against the Khedive,thus showing that even the ruler of Egypt was subject to the law. The British Occupation in 1882,and the establishment of the reformed Native Courts in 1883 are also discussed. 1886 to 1895 sees the Mixed Courts in a more active role, assuming jurisdiction over large companies and institutions. The theory of Government Immunity begins to develop,and this appears again in Chapter 5,1896 to 1905,in considering the Dongola Expedition.Taxation,Trademarks,Personal Status and General Jurisprudence are all considered. Chapter 6,1906 to 1915,introduces further cases on Taxation and Company Law,as well as on the definition of foreigners. The 1st.World War is discussed,as is the arrangement of bind­ ing precedent from a plenary session of the Mixed Court of Appeal,to resolve disputes within the Mixed Courts.1916 to 1925 is discussed against the background of rapid political change in Egypt's status,and 1926 to 1937 considers the general work of the Mixed Courts as well as the Salem Claim, a dispute between the USA and Egypt over the Mixed Courts. 1937 was a landmark year,and the Montreux Convention and its effects is considered. 1937 to 194-9 sees the closure of the Mixed Courts,the transfer of functions to the new National Courts,and a series of important judgements on the Jurisdictional Immunity of Foreign Armed Forces in Egypt. 3 TABLE OF CONTENTS. ABSTRACT .... 3 ACKNOWLEDGEMENTS . 8 Selected Abbreviations . 9 INTRODUCTION . * 1 1 Chapter 1: ORIGINS OF THE MIXED COURTS OF EGYPT Introduction . * 2 1 The Capitulations . • 22 Turkish Firmans & Laws . * 2 4 Laws & Jurisdiction for Commerce before 1875 • 29 Necessity for the Mixed Courts . 32 Progress to Reform . * 3 3 The Inauguration . - 3 5 Notes . 3 6 Chapter 2: STRUCTURE AND LAWS OF THE MIXED COURTS,AND THEIR PLACE IN EGYPT Introduction . 40 Jurisdiction . *4.1 The Law of the Mixed Courts . 4 5 The Judiciary . * 5 3 The Mixed Court Bar . * 5 7 The Organisation of the Courts . 60 The Parquet . * 6 2 Egyptian Sovereignty and the Mixed Courts . 64 Notes . 6 6 Chapter 3: 1875 TO 1885 Introduction . 7 2 The Independence of the Mixed Courts from the Khedive Ismail . 73 The Caisse de la Dette Publique,the British Occupation,and the Native Courts . 79 General Jurisprudence . 8 6 The Mixed Court as a court of claims . 93 Administrative Influence . 9 4 Conclusion . * 9 5 Notes . 9 6 4 Chapter A: 1886 TO 1895 Introduction . 99 The Development of a Theory of a Mixed Interest 100 Competence of the Mixed Courts by virtue of Nationality;the approach to Consular Immunity 106 Public Administration and Government Immunity 109 The Legislative Capacity of the Mixed Courts, and the effect on Police Offences 113 The Mixed Courts and taxation of Foreigners 118 General Jurisprudence 120 The Effect of the Enforcement of Mortgages by the Mixed Courts 122 Notes .... 123 Chapter 5: 1896 TO 1905 Introduction 126 The Further Development of a Theory of a Mixed Interest 127 Government Sovereignty and Immunity . 133 Tax and the Mixed Courts 142 Trademarks 144 Personal Status and the Mixed Courts 146 General Jurisprudence . ^ 148 Structural Development of the Mixed Courts 154 Notes .... 156 Chapter 6: 1906 TO 1915 Introduction 159 Government Immunity 160 The Mixed Courts and Taxation 163 The Mixed Courts and Company Law 169 The British Protectorate and the 1st.World War 173 The Mixed Courts and Foreigners 176 General Jurisprudence 178 The Structural Development of the Mixed Courts 185 Egyptian Nationalism and the Mixed Courts 188 Notes .... 189 5 Chapter 7; 1916 TO 1925 Introduction .... 193 The Mixed Courts, Martial Law and the War . 194- The Mixed Courts and Foreigners . 198 The Mixed Courts and Government Immunity . 206 General Jurisprudence . 210 Plenary decisions of the Mixed Courts . 217 Structural Development . 219 A View from Other Courts . 220 Notes ..... 221 Chapter 8: 1925 TO 1937 Introduction .... 227 The Mixed Courts and Foreigners . 228 The Mixed Courts and Government Immunity . 235^ The Salem Claim . 24.6 The Mixed Courts and Internal Conflict of Laws 256 The Mixed Courts and Companies • . 259 Taxation . 262 The Treaty of Alliance & Friendship with Great Britain . 264. The Montreux Convention . 265 General Jurisprudence . 269 A View from Other Courts . • . 272 Notes ..... 273 Chapter 9: 1937 TO 194-9 Introduction . 284- The Broad Effect of the Montreux Convention on the Mixed Courts . 285 The Mixed Courts and Government Immunity . 290 Taxation .... 293 The Mixed Courts and the Jurisdictional Immunity of Foreign Armed Forces in Egypt . 298 General Jurisprudence . 319 The Closing of the Mixed Courts . 322 Notes . 325 Chapter 10: CONCLUSION 335 Notes 348 Appendix I: Bibliography of works referred to in the Study 350 Bibliography of background Historical Works 353 Bibliography of background Legal Works 354 Appendix II: Table of Volumes & Years- Gazette des Tribunaux Mixtes 356 Bulletin de Legislation 357 Appendix III: Selected Glossary of Egyptian Arabic Words 358 Appendix IV: Income & Expenditure 1875 to 1926 359 Appendix V; The Employees1 Mutual Fund 361 7 ACKNOWLEDGEMENTS. Very many people have helped in my search for material over several years.In particular I would like to thank the staff of the Court of Appeal library,and the Court Records Office,in Alexandria,the staff of the Institute of Advanced Legal Studies Library,and the Inner Temple library,for their courteous help, and the School of Oriental and African Studies library staff, especially Barbara Terris of Interlibrary loans. I would also like to thank the following from Egypt:Maitre Charles Ayoub,Ancien Conseiller,Mme.Sophie Maakad,Richard Remanda,esq.,M.Raphael Azer,and Maitre Marie Khalil,all of Alexandria,and Maitre Raphael Cassis of Cairo.The following from England also deserve a mention:Dr.Doreen Hinchcliffe,for her initial support and encouragement,Prof.Noel Coulson for overseeing and encouraging the study for several years,Ian Edge,who acted as a temporary but conscientious supervisor last summer,Valerie Hoare,for cheerful appointment coordination,William M Ballantyne for his advice and observations,Mary Rowlatt,John Brinton,and Dean Charles Morrison for permitting me to continue with the study while a Permanent Lecturer at the Inns of Court School of Law. Finally,I thank my wife and my family,without whom,in more ways than can be set out here,this thesis could not have been written. Mark SW Hoyle September 1983 8 Selected Abbreviations. ADPIL Annual Digest of Public International Law. AJIL American Journal of International Law. BLJ Bulletin de Legislation et de Jurisprudence Egyptiennes(also known as Bollettino di Legislazione e Giurisprudenza Egiziana).See Appendix II. BO Bulletin Officiel(Cairo). BYIL British Yearbook of International Law. Clunet Journal du Droit International Prive. ESIL Journal of the Egyptian Society of International Law,Cairo• FO Foreign Office Reports at the Public Record Office,Kew. General Rules RGJ(q.v.)1875• GTM Gazette des Tribunaux Mixtes d 1Egypte-Revue Judiciaire Mensuelle.See Appendix II. ILR International Law Reports. JCL Journal of Comparative Legislation & Inter­ national Law. JTM Journal des Tribunaux Mixtes. Judicial Rules/ ROJ(q.v.)1875• Regulations LE Egyptian Pound. LQR Law Quarterly Review. MCA Mixed Court of Appeal(based in Alexandria). MCA(P) Plenary Session of Mixed Court of Appeal. MCC Mixed Civil Code. MCCass. Mixed Court of Cassation(based in Alexandria). MCom.C Mixed Commercial Code. MCCiv.Proc. Mixed Code of Civil Procedure. MCCr.I Mixed Code of Criminal Instruction. MCd'Assises Cour d'Assises Mixte. MPC Mixed Penal Code. NPC Native Penal Code. PC Penal Code for both Mixed and Native Courts(1937). PT Piastre(100 PT = LE 1). 9 Rev.Regs. Regleinent d 1 Organisation Judiciaire(1937) . RGJ Regleinent General Judiciaire(1875)-(General Rules). R0 Recueil Officiel des Arrets de la Cour d'Appel Mixte. ROJ Reglement d 1 Organisation Judiciaire(1875)- (Judicial Rules/Regulations). SLR Sudan Law Reports. j I I 10 INTRODUCTION. Any study of a legal system in Egypt,which was inaugurated in the late 19th. Century and lasted until the second half of the 20th. Century,would be incomplete without an overview of Egypt*s history in the preceding centuries,with particular regard to foreign commercial and political involvement.