Promoting English as a court language in Germany
By Dr. Hanns Christoph Siebold and Dr. Mark C. Hilgard
In recent years, there have been continuous efforts to introduce English as a court language in Germany. The reasons are manifold. As the number of in-ternational cases grows, so too does the influence of the English language, the lingua franca of international trade. The internet is steadily growing in im-portance and knows no national borders.
At the same time, national jurisdictions are struggling to remain relevant in increasingly international competition between substantive law and court sys-tems. States want their substantive law and, in turn, their courts to be interna-tionally relevant. From a German point of view, the virtues that make German law and German courts internationally attractive are their efficiency and cost transparency. One major aspect of such competition is international accessibility, which requires the possibility of using English in proceedings.
However, the use of English in state court proceedings in Germany is currently severely limited. By law, at present only German is permitted as the language of the court. Foreign parties must use interpreters, authorized translations and German-language attorneys. Considering the costs and delays associated with translations and interpreters, this is a downright deterrent. As a consequence, major cases involving German parties are either dealt with by foreign courts or by arbitration. This weakens both the importance of Germany as an attractive jurisdiction and the importance of German substantive law.
A legislative proposal in Germany seeks to change this by introducing special court chambers for proceedings in English. Such proceedings would be dealt with by chambers of commerce in international commercial matters, which would hold the entire proceedings in English. However, although introduced in 2010 and again in 2014, the legislative proposal has not yet been accepted.
Nevertheless, the Regional Court of Frankfurt am Main has announced its intention to create a chamber of commerce in international matters in 2018 without waiting for a change in legislation. This proposal comes despite the perceived failure of such an attempt in the Higher Regional Court of Cologne in 2010, where less than a handful of cases were submitted. There is one ob-vious disadvantage: While awaiting the intended legislative changes, courts only hold oral hearings in English – memoranda still have to be filed in German. This severely limits the accessibility of court proceedings for foreign parties.
Other countries are making similar efforts. The Netherlands is set to launch a new concept this year, introducing the Netherlands Commercial Court. In contrast to current German experiments, the Netherlands Commercial Court will be able to hold entire proceedings in English, including written communication.
For Germany, it is questionable whether introducing English-speaking proceedings in a limited scope will be successful. Still, the Frankfurt initiative shows the (once more) growing inclination of courts to offer services in English.
Pros and cons of English in proceedings
The initiative to introduce English as a legal language is based on the hope that it will bring a larger number of international proceedings to Germany.
In principle, the Corporate and Business Law Committee of the American Chamber of Commerce in Germany (AmCham Germany) welcomes the initiative but believes a differentiated approach is appropriate. AmCham Germany believes that there are excessively high hopes for a fundamental strengthening of the role of German proceedings in the international context.
First of all, under the proposed legislation, parties could not freely choose to hold proceedings in English. This option would only be available for specific commercial matters with an international dimension. On the other hand, the use of exhibits in a foreign language is already possible in German-language proceedings. Requiring a translation is at the discretion of the judge. Thus, even in proceedings that are not being held entirely in English, it is possible to use exhibits in English.
However, German proceedings might still prove unattractive to some foreign parties even if they were to be held in English.
Issues with procedure
One major issue is the gathering of evidence, specifically the process of discovery. The time-honored dispute between American and British lawyers and German lawyers over the advantages and disadvantages of discovery can only be touched upon here. In essence, common-law lawyers believe that only the discovery process can unveil the truth, while from a German point of view, discovery leads to extensive submissions of completely irrelevant documents, bloating both proceedings and costs. In any case, parties with a common-law background and experience will be hesitant to largely forego discovery possibilities and German law, no matter the language of the proceedings. Consequently, holding proceedings in English is likely to be a bonus when weighing up the advantages and disadvantages of Germany as a forum. However, in the final analysis, other procedural aspects are likely to play a decisive role in the selection of a place of jurisdiction.
In this regard, it is also worth mentioning that the German habit of not taking detailed minutes of proceedings, but merely recording the outcome, might be unattractive to foreign parties.
Participation of third parties
The possibility of introducing proceedings in English is limited by the need to protect the interests of third parties that have not agreed to litigate in English. The involvement of third parties dragged into a dispute later is common, especially in more complex cases. If such parties do not agree to proceedings in English, the options envisioned by the legislative proposal are either using translations and interpreters or switching to German entirely. To safeguard third-party interests, there does not seem to be any other reasonable alternative. However, this not only eliminates the advantages of using English, but creates more work in the middle of proceedings, as previous communication might have to be translated. Thus, because of third-party rights, there is an inherent limit to the possibility of multi-language court proceedings.
Adequate language capabilities
The American Chamber of Commerce believes that there is no need to certify lawyers with regard to their English-language skills. Just as there is no objective restriction on the admission of lawyers to arbitration proceedings in English; this too should be the case for litigation in English: A client must trust that the appointed lawyer knows how to properly express him- or herself in English. English-speaking clients can ascertain this themselves.
However, the situation is different when it comes to judges. Unlike in arbitration, where the parties can convince themselves of the language abilities of an arbitrator before making a selection, a prior review is impossible in state court proceedings. Under the principle of the legal judge, selection of a particular judge is impossible. The parties must therefore trust in the abilities of the judges chosen by the state.
Making English-language litigation possible in Germany is a positive development in principle. However, one should not expect foreign-language case numbers to skyrocket. Certain procedural peculiarities of German law do not lose their deterrent effect just because they are translated into English. Moreover, a legislative change is still required to hold proceedings in English.