1896 TO 1905.
Introduction,
The description of these years begins with The Further Develop
ment of the Theory of a Mixed I n t e r es t ,continuing the discussion from the previous chapter.The next section looks at Government Sovereignty and I m m un i ty ,including the Dongola Expedition with its wide r am if ic at io ns ,and other matters of Government immunity.
The chapter continues with Tax and the Mixed C o u r t s ,T r ad em a rk s, and Personal Status and the Mixed Courts.The section on General Jurisprudence provides further examples of topical cases,such as the fairness or otherwise of c o nt ra ct s,i ll eg al it y,and
champertous a gr e em e n t s.This leads to a discussion of the
Structural Development of the Mixed C o ur t s ,reviewing events and cases contributing to the evolution of the framework of the c o u r t s .
The third decade saw a greater involvement in areas touching upon the lives of the ordinary inhabitants of Egypt.Although the events of the previous twenty years had also affected the residents of Egypt the law had begun to become established at a more personal level,and recourse to a court of law became an automatic factor to be c on sidered,whereas in the years before 1875 it had been the very thing to avoid,not for the usual
reasons always present in such matters,but simply because of the extreme unlikelihood of a fair trial.The Mixed Courts showed that a fair trial was not only possible but desirable.
The Further Development of the Theory of a Mixed Interest.
The years 1896 to 1905 saw no reduction in the Mixed C o u r t s 1 control of litigation by use of the theory of a mixed
interest.The most important such case in this period was another action concerning the Municipality of Alexandria.
In the previous chapter this Municipality was discussed under the heading of Public Administration and Government
Immunity,and it will be remembered that it was held that the Municipality was not part of the Egyptian Government^.
The present case followed on from that decision and others concerning mixed i n te re st s,and involved local native
subjects in an action over a compulsory purchase order of land for the construction of a road .The plaintiffs sought
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an order in the Mixed Courts forbidding the construction of the road without an agreement as to compensation ,but in the event the only issue of importance was whether,as the
Municipality and the Egyptian Government both argued,the Mixed Courts were not competent because both the plaintiffs and the defendant were native persons.
The judgements in the District Court and the Mixed Court of Appeal were carefully reasoned.In the Alexandria District Court it was first stated that all previous jurisprudence on the question of a mixed interest had to be considered, together with the letter and spirit of A r t. 9 of the
Judicial Regulations.Continuing this theme the court held that previous decisions regarding the Domains,the Daira
Sanieh,the Railways,the Suez Canal C o m p an y ,Cairo Waterworks, the Credit Foncier,and the Ottoman Bank,amongst others,had established beyond doubt the principle that the competence of the Mixed Courts derived from the mixed nature of the interests in cause,and not just from the nationality of the parties.
The court then set out guidelines for the construction of a mixed interest.Wrhat was the origin of the Municipality and its avowed purpose?Who comprised the members and what was its authority?Kow and through whom did it operate?
Considering these questions there was no doubt at all that
the Municipality had mixed interests and therefore the Mixed Courts were competent.
The reasoning thus far could have sufficed for the case in question,but the court went on to review other facts that were stated to be equally impor ta nt ,and these must be taken as equally forming the reasons behind the
judgement.lt was clear from the historical facts presented that the Capitulatory Powers were freely consulted by
Zulficar Pasha before the Municipality was created in 1 890.Indeed,France insisted on certain safeguards over taxation and other fiscal matters affecting her subjects, and the court reviewed the pre-inauguration discussions and concluded that none of the Capitulatory Powers could have intended such an organisation to be judged by the Native Courts.
In addition,the court looked much further than any possible causes in action and considered the work of the Municipality in administering the city of Alexandria to the benefit of its i nh ab it an ts ,amongst whom were a very high proportion of f or ei gn er s.Outlining the importance of local a dm in is tr a tion for the wealth and prosperity of a city,the court stated that the welfare of Alexandria's foreign residents was thus so closely bound with the Municipality that there was a mixed interest in that respect.
The argument next dealt with was that by its decree of
organisation the Municipality was declared to have a native nationality ,and that consequently all disputes between it and natives should be heard by the Native Courts.The judges approached the point by assuming that the argument was
correct.If therefore it was true,it would have been a renunciation of foreign established rights by taking away from the Mixed Courts cases that by agreed and tested precedent for many years were within their jurisdiction.
Such a renunciation of established rights had to be beyond doubt,and the court stated that it was inconceivable that the Capitulatory Powers could have discussed the decree of organisation of the Municipality and accepted its terms,
knowing that the result would be a renunciation of rights, without having expressly or impliedly stated their agreement that the Municipality was to be subjected to the jurisdiction of the Native Court.The Alexandria District Court again
referred to the preparatory discussions between Egypt and the Capitulatory Powers,and especially to the French
insistence that the Municipality would 'above everything else'be a truly international organisation.All this,it was held,was incompatible with the competence of the Native
Courts but completely consistent with that of the Mixed Courts,based on the theory of a mixed interest.
The case did not rest there but went to appeal.At this later stage the arguments and the reasons of the court developed on two lines.The first was straightforward and part of the continuing theory of mixed interest.The Municipality was
held to be a civil person just like banks and other companies, and therefore the mixed interests it represented meant that the proper forum for disputes was the Mixed Courts.This was no more than a continuation of previous cases^ quoted as direct a ut ho ri ty ,and it was reaffirmed that the nationality of a company was not conclusive as to jurisdiction.
The second argument was more original.The court held that it was wrong to consider a dual jurisdiction for an entity such as the Alexandria M unicipality.If in disputes with natives the Native Courts had jurisdiction,and in disputes with foreigners the Mixed Courts were c ompetent,the Munici
pality would have the bother and expense of fighting cases in two separate Egyptian courts with no guarantee that any one set of facts would meet with the same response in
both courts.On the grounds that this was an inefficient way to organise a city the size of Alexandria,the Mixed Court of Appeal confirmed the decision of the Alexandria District Court and declared that only the Mixed Courts were competent.
Three matters of importance arise.In both the acceptance of previous decisions and the willingness to consider material arising out of preliminary conferences and the exchange of letters between Egyptian Government officials
and foreign M i n i s t er s ,the courts showed a strong desire to follow their own cases and also to place issues in the context of Egyptian society and the appropriate background to the dispute.The third matter of importance is that the problem of a potential duality of jurisdiction was in fact solved by a decree in 1900 that altered the Codes to prevent natives suing the Municipality in the Mixed Courts .Thus a
the very duality of jurisdiction feared by the Mixed Court of Appeal actually arose.As it happened the type of dispute that concerned the Municipality was quite straightforward and clear,and there was no major clash between the Native and Mixed Courts in this area.
The decree of 1900 also covered other points about mixed interests that had been discussed at an international conference in 1 8 9 8. The most objectionable practice from the Egyptian Government*s point of view was the assignment of debts by natives to foreigners by which a mixed interest was introduced into a dispute , thus forcing the case to go before the Mixed Courts.
Before 1900,A r t .4-36 of the Mixed Civil Code allowed an assignment of rights to third parties so long as the assignment was in writing and notified to the debtor,and the Mixed Courts were quite unwilling to refuse to hear actions that had developed a mixed interest even if they should have gone initially before the Native Courts.This meant that natives arranged to pursue their actions before the Mixed and not the Native Courts because of the much higher reputation of the former and the lack of experience of the latter.The only way to solve the dilemma was to provide the Native Courts with more judicial experience and thus raise their p r es ti ge .This was accomplished in relation to third party assignment by the new provision that no assignment of rights between natives could take place to a third party unless the debtor agreed^*.By this measure the Mixed Courts lost a certain amount of litigation, but so great were the demands on their facilities that in
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