Coll 15/3(1) 'Egypt. Abolition of Capitulations in Montreux Conference and Convention 1937' [‎596v] (1197/1220)

state of affairs, and therefore His Majesty s Government consider it should be
uifreed that for civil cases, the definition of foreigner for the purposes of
determining jurisdiction of the Mixed Courts should be that resulting f rom
existing jurisprudence of these courts. ,, ,, r .
e o bj 4s r e<r a rds criminal matters, the definition of foreigner” for th^
existing criminal jurisdiction of the Mixed Courts contraventions,” bank
riintov offences and offences against the court and its officers) should remain as at
nresent and His Majesty’s Government consider it would he the best and most
Lical solution to adopt as the definition of foreigner for the purposes of the
'X cr iminal jurisdiction of the Mixed Courts the same definition. If, however
, T. ^ dVinnlH see strong obiection to this on the ground tw
over “ foreigners ” without any express restriction, they would he exercising it
over a class of non-Egyptians over which the national tribunals now claim
iurisdiction His Majesty’s Government would he prepared to agree to a provision
transferring expressly to the Mixed Courts full correctional and criminal juris
diction over all persons hitherto entitled to consular jurisdiction, together with
such other persons, if any, to whom the Egyptian Government may by subsequent
legislation extend such jurisdiction. This would amount to a substitution of the
description for the definition. The advantage of this substitution is that it avoids
complicated argument about the definition of a rare category of cases the exact
status of which is not clearly defined at present, and in fact maintains the status
guo with regard to such cases while leaving open the possibility of special
agreements between the Egyptian Government and other Powers.
4 ir or civil cases between two foreigners of the same nationality, which
would also now pass to the Mixed Courts, no definition is required. The desired
result would be achieved by omitting the words “ de nationalite differente” in
R rwio ‘ - 1 j n i UX,rl«rv™f
iudiciaire mixte. T _. ^
5 As regards statut personnel cases, His Majesty s (uovernment consider
( 1 ) that the Mfxed Courts should have jurisdiction in such cases, and the present
specific exclusion from their jurisdiction of statut personnel embodied in article 4
and article 5 of the Code civil mixte and article 9 of the Reglement d'Organisa-
tion judiciaire mixte should be abrogated*, ( 2 ) that if the majoiity of the
capitulatory Powers at the conference press for a right to exclude statut personnel
cases concerning their nationals from the transfer of consular jurisdiction to the
Mixed Courts, the Egyptian Government should be ready to agree to the inclusion
in the convention of a provision under which such transfer should not take place
in the case of nationals of such capitulatory Powers as give notice within a
certain fixed period that they desire to exercise their right. His Majesty s
Government desire to remind the Egyptian Government in this connexion that
this right is expressly contemplated in paragraph 7 of the annex to article 13 of
the Treaty of Alliance. They would further point out that, in view of the large
number of Egyptian nationals subject in matters of statut personnel to religious
tribunals in Egypt at present, it would not appear to be open to objection from
the Egyptian point of view to accord this right.
6 . If the majority of the capitulatory Powers at the conference are wnh^g
to agree that jurisdiction in statut personnel cases over their nationals should be
transferred to the Mixed Courts, His Majesty’s Government are also prepared
to agree. If, however, in view of the attitude of the majority of these Powers, it
is necessary to concede a right to except statut personnel cases from the transfer,
it is probable that His Majesty’s Government would also exercise this right.
7. Statut personnel cases form part of civil jurisdiction, and therefore so
far as the Mixed Courts are concerned no special (lefinition of " foreigner toi
this purpose would be required. The Mixed Courts would have jurisdiction in
statut personnel over the same foreigners as are covered by their existing juris
prudence in connexion with their jurisdiction in other civil suits, except t0 ^ e
extent that this jurisdiction was cut down by the exercise of the right referred o
in paragraph 5 (2) above. There might also be a provision that the Mixed Cour s
when dealing with a statut personnel case should, so far as possible, arrange tna
the chamber should include a judge of the “ nationality ” of the “ suit ana
that where there was no such judge they might appoint assessors of tna
nationality, and that they should apply the law of this nationality as 6
substantive law to determine matters in dispute.