Georgia Journal of International and Comparative Law, Vol. 5, No. 2 (1975), pp. 407-430

Abstract

The system of Mixed Courts in Egypt was an unusual institution. It represented an international solution in the context of what was obviously a colonial situation. The system lasted 74 years from 1876 to 1949. A system of law was established whose sources were general codes created especially for use by the Mixed Courts. The Charter of the Mixed Courts specified two residual sources of law. It is these sources and their application upon which this paper is principally focused. Article 34 reads: "The new Courts, in the exercise of their jurisdiction in civil and commercial matters, and within the limits of the jurisdiction conferred upon them in penal matters, shall apply the codes presented by Egypt to the Powers, and in case of silence, insufficiency, and obscurity of the law, the judge shall follow the principles of natural law and equity." The language of the Charter was incorporated into article 11 of the Mixed Civil Code of Egypt which stated: "In case of silence, insufficiency, or obscurity of the law, the judge shall apply the principles of natural law and the rules of equity." Such a provision does not appear to have a counterpart in other modern legal systems. Neither the Swiss Civil Code nor any other European code permits the judge to make use of these sources of law as the entire basis for a judgment. The discussion of the application of article 34 of the Charter and article 11 of the Mixed Civil Code will be preceded by a description of the origins of the system of the Mixed Courts, of their jurisdiction and organization, of the background of the Mixed Codes, and of their content. The Mixed Courts operated under the original Charter from 1876 to 1937. The revision of the Charter in 1937, in preparation for the termination of the Mixed Courts which was to take place 12 years later, did not affect article 11 of the Civil Code. Article 52 of the revised Charter reaffirmed the use of natural law and equity in the same terms as article 34 of the original Charter. Whatever conclusions may be drawn from the use of natural law and equity by the Mixed Courts, the technique itself merits the attention of the jurisprude, the comparativist, and the expert in international law and transnational transactions.