“It’s not that we use technology, we live technology” – Godfrey Reggio
We use technology in our everyday quick paced lives in order to facilitate our daily interactions in all fields. The ever growing and evolving technology is transferrable to give everyone access to its use. In this article we aim at tackling various points and shed light on the transfer of technology in Egypt and its effects on developing projects.
As our world grows more into a global village, one cannot deny that its universal culture was cultivated due to our ever-growing attachment and development in all fields of technology. When we compare people’s basic daily use of equipment or exposure to sources or items associated with the tech world 20 years ago to today, the leap is immeasurable. The speeds in which we have come to improve, acquire, and disperse the “know-how” and knowledge behind technology is incalculable, and only getting faster and more efficient.
The transfer of technology (TOT), is a process that is not only the transferring of skills, knowledge, licensing, trade and various methods of invention, industrialization and production of both data and products, but also a platform that gives access to an extensive range of users (both in the technological or scientific fields) allowing them to penetrate, develop and utilize the technology to either, on one hand, further their products or studies, or on the other hand, help them initiate the development of innovative applications, products or materials.
Synonymous to the transfer of information or knowledge, TOT is done through conferences or research journals. It can be transferred both vertically and horizontally, meaning it can be transferred from scientific or research centers to various research and development (R&D) departments in various industries or it can be transferred from one field or industry into another.
Egypt is becoming a growing tech hub in the Middle East and North Africa (MENA) region and it is all due to conferences such as RiseUp Summit Egypt, which is an annual conference in Cairo that acts as a platform for startup and the entrepreneurial communities worldwide to come together to network and share ideas. From gamers, lawyers, real estate developers and Facebook executives, RiseUp brings together people from various industries who are all interested in the same thing, innovation, and that is not conceivable without TOT.
Such summits become a bridge between industries and nations, allowing for countries like Egypt (classified as an emerging economy) to become exposed to the new concepts and scientific developments across the various fields associated with technology. Moreover, as the speed of innovation accelerates, so does the volume of knowledge that becomes distributed. With that being said, it is the duty of the Law to give these bright minds the legitimate right to their ideas, and the knowledge they have thirsted upon our universal culture.
Basically, technology is transferred from developed societies to other societies that need to develop themselves in various fields including the economic, social, technological and others fields. The developing countries are in need of technology, not only not only in the form of state of the art machines and equipment, but also they need the know-how that would enable them to make use of the foreign expertise, to boost their production, achieve optimum usage of its resources whether in manufacturing, consumption or other assorted fields.
Given that these are human activities and transactions, they must be organized and legitimized by law. In Egypt, on the commencement of the actual TOT activities, the relevant contracts were subject the general rules of law. However, as the need for more specific rules of law was quite manifested by acceleration of the TOT activities, the Egyptian legislator has deemed it fit, for the first time in the history of the Egyptian legislation, to introduce regulations organizing TOT, which has been provided for under articles 72 – 87 of the Commercial Law No. 17 /1999. The aim of this legislation was to match the conflicting interests of the different parties of the TOT contracts, preserving the interests of our society on the one hand without prejudice to the lawful interests of the technology providers. The aim of the legislation organizing the TOT contracts should in no way prevent the technology providers from coming into the Egyptian market, buy at the same time, it should warrant that the Egyptian importer would actually acquire and understand this technology in such a manner that it would become a tool to develop the economy and maximize its capabilities to compete in the of International Trade Markets.
For that reason, the Legislator have set a condition that the Governing Law for the TOT contracts and any dispute arising thereof would be the EGYPTIAN LAW and under the Egyptian Courts jurisdiction. In view of the trend to arbitrate commercial disputes to arbitration, the Egyptian legislator allowed the Parties to resort to arbitration provided that it would be held in Egypt. Any agreement to the contrary of the said rules shall be considered null and void, notwithstanding the contractual parties’ agreement to the contrary.
Having noted the rapid development of the technology and the price of the new tech drastically fluctuates over the time, the legislator allowed the contractual parties to freely determine the duration of the agreement, to request its termination or to improve its conditions no less than five years from the conclusion of the agreement. This may be repeated every five years bearing in mind that the parties to the contract may agree to a different period than this five years period.
Technology Transfer Projects In Egypt:
Egypt is one of the developing countries, which remains in need of technology transfer to become part of the industrial world, and the main areas where technology transfer agreements are presently concluded are the fast growing energy sector, the automotive industries as well as other heavy industries.
Given that Egypt is aiming to enhance its infrastructure in securing a clean energy resource to create more attractive business environment and provide various kind of energy for investors, recently Egypt and the Russian Federation reached an agreement on transferring technology as concerns EL-Dabaa Nuclear power plant. Egypt has decided to enter into this agreement to possess the know-how of this sort of technology from a country that owns the know-how of this kind of technology.
We hope that this kind of mega and high tech projects will be the beginning of a series of similar projects in the different fields of industry, communications, energy, gas and oil and will enable the smooth transfer of technology into Egypt and from Egypt to less developed countries.
“Wars will remain while human remains. I believe in my soul in cooperation, in arbitration but the soldier’s occupation we cannot say is gone until human nature is gone.”
Rutherford B. Hayes
Apart from the fact that shipping is a fascinating, globalised and complex industry, it still remains unique and different from other industries.
The main reason we find the shipping industry to be unique is due to its international nature, the volume of risk associated with each transported shipment and the fact that operations take place both marine and non-marine environment. The contracting parties may be exposed to significant risks and the arbitration may constitute the most convenient alternative dispute resolution method.
Both Hamburg rules and the Egyptian maritime law have recognized the peculiar nature of the marine industry and their articles were tailored to cope with the volatile nature of the market, searching for a better protection for the goods owner.
In fact, that was the reason why a notable number of countries didn’t ratify or accede to Hamburg because those countries adhere to the political exception of liability provided in The Hague Visby Rules
It is no surprise that the number of states that have ratified the convention have a small market share in the shipping industry and do not play a significant role in the maritime traffic of goods, a situation which will become prejudicial to the unification of maritime law and international trade.
The present dissimilarity between both Hamburg Rules and Hague Visby Rules concerns the arbitration agreement and the choice of both seat of arbitration and the applicable law. According to the Egyptian Maritime Law any prior arbitration agreement depriving the claimant of his right to choose the seat (venue) of arbitration or judging in inconsistency with the Egyptian Maritime Law No. 8/1990 will be null and void.
Article 246 of the Egyptian Maritime Law No 8 /1990 stipulates that “ In case the parties agreed in the sea transport contract that all claims arising under the said contract shall be referred to arbitration, then the said arbitration shall be conducted at the claimant’s choice, within the jurisdiction of the court at the port of loading or discharging, at the defendant’s country of residence or at the location where the contract has been concluded, provided that the defendant would have a head office, branch or agency at that location or at the location where it has been agreed upon to hold the arbitration in the arbitration agreement or within the court jurisdiction where the arrest on the ship has been placed. Any agreement prior to the dispute depriving the claimant from such privilege of choosing or restricting this choice shall be null and void”.
It is clear from the above mentioned article that the nullification not only denies the claimant’s right to choose the seat of arbitration but also disallows any action that may restrict the claimant’s right to choose the seat of arbitration which would be more suitable for the claimants after the dispute has arisen.
Article 247 of the Egyptian Maritime Law No 8 for the year of 1990 stipulates that “ In case it has been agreed in the sea transport contract that all claims arising under the said contract shall be referred to arbitration, then arbitrators shall be bound to rule in the dispute pursuant to the provisions of the present law (No 8 /1990). Any agreement prior to the dispute depriving the arbitrators from holding under the provisions of the said law shall be null and void”.
It may be derived from the above that the legislator has taken into account the importance of arbitration as a preferred alternative dispute resolution mode for both the carriers and cargo interests (merchants).
In this respect, the legislator has deemed it fit to set up a balance between the conflicting interests of both the carriers and cargo interests (merchants), since any disequilibrium between these interests will likely enable the stronger party to force the weaker party at the time of concluding the contract to accept an unsuitable forum which would also cost the weaker party excessive expenses, that would be ultimately prevent that party from commencing arbitration proceedings or would give to the arbitrators the power not to abide by the governing law which in our case will be the Egyptian Maritime Law No. 8/1990. In fact, the legislator has nullified any prior agreement that has been brought up before the dispute has arisen which would dispossess the plaintiff right from (1) choosing the suitable forum (provided that the conditions required for a proper forum are available in the seat of the arbitration chosen by the plaintiff), and/or (2) preventing the arbitrators from ruling under the applicable law. These rules are consistent with the provisions of articles 22 and 23 of the United Nations convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules).
In this respect, we would refer to a precedent set by the Egyptian Supreme Court (Cour de Cassation)which ruled in a case where the Bill of lading included an arbitration clause referring to the place of arbitration agreed in the charter party.
The said arbitration clause provided for that “the place of arbitration New York U.S. Law and Antwerp Rules 1974 to apply”.
The Cassation court held that “what is mentioned in the charter party (C/P) deprives the consignee of his right of choosing the place of arbitration and confines it to New York City and also does not allow the application of the provisions of the Egyptian Maritime Law No. 8 of 1990 on the dispute, providing that the applicable law is the law of USA and the York Antwerp rules. This invalidates both conditions stipulated in the relevant C/P, hence the arbitration clause becomes null and void and gives the claimant the right to resort to the courts, having the general jurisdiction over all disputes except in case a special provision is in place, given that the claimant has insisted on the nullity of the arbitration clause for having exclusively confined the location of arbitration to New York.
The Provisions of the Egyptian Maritime Law No. 8/1990 should apply on the issue of the arbitration clause subject to the present dispute and on its consequential effects and a ruling should be given nullifying this clause and given that the judgment rendered by the court below ruled differently, it is ill founded.
((Cassation No 595/63 –hearing 28/02/2006))
The above gives in brief the view of the Egyptian legislator and how it its applied in practice before the courts, in the quest to maintain the equilibrium needed between the parties. This need is manifested in not allowing any pre-written clauses in the contract of carriage to govern the disputes between the carrier and the cargo interests. Those articles were proclaimed to protect the shipper’s and receiver’s right in the B/L and to prevent the carrier from exempting his responsibility by choosing a seat of arbitration that will avert the shipper to commence arbitration because of legal fees/cost or to choose a substantive law to govern the arbitration agreement giving them an advantage not stipulated in the Egyptian Maritime Law. Hence, the arbitration clauses referring to complex, expensive and far forums will be nullified by the Egyptian judges as these would prevent the cargo interests from claiming their rights before a jurisdiction they would choose and would force them to resort to unfavorable jurisdictions; same goes for the governing law in foreign jurisdictions.