By:
The Project Counsel Group
11 January 2018 – Last year we completed a rather complex e-discovery review project in an international arbitration that crossed France, Germany and the UK. The actual arbitral proceeding was in Germany. Over the last few years e-discovery has become a more relevant topic in modern international arbitrations, since the use of electronic media has become common practice for the creation, storage and transmission of information.
There has been some push back. Many arbitration practitioners see e-discovery as a time consuming process, and they do not want e-discovery to turn arbitration into a more expensive procedure, since one of its main principles is the cost-effective advantage over other forms of dispute resolution.
However, we have now completed four e-discovery review projects in arbitral proceedings and all parties have been satisfied with the result.
But most interesting was that the proceeding was conducted in both English and German (consent of the parties). It brought up a point made by one of the German lawyers on the case:
International corporations don’t want to negotiate in a language they don’t speak themselves and our court system’s current mandated language – German – hinders us.
So it comes as no surprise that in the state of North Rhine-Westphalia (NRW), economic legal proceedings could in future also be conducted in the English language. As part of a Federal Council initiative, justice minister of NRW Peter Biesenbach aims to stop the increasing relocation of lucrative economic processes abroad. In spite of section 184 of the Judicial Act stating that “the court language is German” Biesenbach sees this as a disadvantage and in a German press interview echoed the thoughts of the German lawyer in our German arbitration case:
I think the “only German” rule contributes to significant commercial disputes being settled either abroad or before private arbitration courts. This is to the disadvantage of German companies and the courts located in Germany.
The Christian Democrat (CDU) politician’s Federal Council initiative is already supported by Bavaria and Lower Saxony. Hamburg has plans to take part as well. Later in the interview Biesenbach said:
We not only want to make our courts more attractive, but also the whole of NRW as a business location. Even companies in NRW, which are internationally active, often have to adapt their contracts for courts abroad due to language issues.
According to the Association of German Chambers of Commerce and Industry, the number of proceedings in the chambers of commerce in NRW fell from 12,101 in 2007 to 7,769 in 2016. With a decrease in international business lawsuits that are lucrative for law firms, legal professions in Germany have been negatively affected, Biesenbach said.
Also quoted in the interview was Christian Friehoff, chairman of the Association of Judges and Public Prosecutors in NRW, who supports the initiative, stating:
German jurisdiction has an excellent reputation in terms of its quality and lack of corruption. Reducing language barriers can therefore contribute to international companies agreeing on court cases in NRW rather than in English-speaking regions.
Friehoff also noted he does not believe judges will have issues communicating in English. He cited proposed legislation from 2010 that stated:
There are numerous judges in Germany who have an excellent command of the English language. Many of them have earned a Master of Law degree abroad.
Obviously, issues abound. This may not work well from the perspective of the rule of law, as far as German law is applied in these proceedings, because German statutory law is enacted in German and only available as original valid law in German, and the same applies to with German rules of civil procedure. Also, all caselaw is also only available in its German original.
Hence, in my mind, this could end up being a German legal proceeding, but done in an unofficial English translation, for better or worse. That might be sufficient for many.
But … German judges, even if they speak English, are in no way qualified as translators usually, and that would be very special. So, who, on the governmental side or the court administration side, is going to check whether the German judge speaks sufficient English? And what kind of English? British English? American English? The English of Singapore?
Being a bit of a cynic, I think this is more a marketing ploy for Germany as a place of legal business and totally different from an English court procedure that is fully and originally in English, from the statutory law and the case law, the legal tradition, and the documents.
Because if this was for real, you would, in my view, have the German parliament enact statues in English, thus officially in English. Of course, if your parties agree to English (or the cases that apply are in English), German courts may apply laws from anywhere in the world. But I still question whether a German judge would even be permitted to apply rules of procedure via an English translation that is not officially enacted by the German parliament.
