«
»

From The Local:

The Frankfurter Allgemeine Zeitung paper reported at the weekend that justice ministers of North Rhine-Westphalia and Hamburg, Roswitha Müller-Piepenkötter and Till Steffen respectively, aimed to change the law governing the German courts so that cases could be conducted in English.

The paper says many internationally-active businesses were used to negotiating and closing contracts in English, and made provisions to deal with disputes in the same language — ensuring that any court cases are heard in an English-speaking country.

“Germany as a legal centre suffers from the fact that court laws stipulate that German is the language to be used,” Müller-Piepenkötter said. “Foreign contract partners and parties in court cases are wary of dealing with things in a foreign language before a German court.” …

Thanks to David Wilson for the pointer.

Categories: Uncategorized    

    14 Comments

    1. Martinned says:

      As long as the consent of both parties is required, this seems like a good idea. (Assuming a German version of the ruling will still be published.)

      January 10, 2010, 6:08 pm

    2. dearieme says:

      But won’t they then need official translations of German law into English?

      January 10, 2010, 7:13 pm

    3. Martinned says:

      dearieme: But won’t they then need official translations of German law into English?

      Why? The lawyers for both parties and the judge will all still be German, or at least German-speaking. As confirmed in Peśla v. Justizministerium Mecklenburg-Vorpommern last month, you do have to actually know about German law in order to be a lawyer in Germany. As long as the lawyers and the judge(s) know about the law, why shouldn’t they hold hearings in English? Most of the conversation would be about the meaning of the contractual terms, the context in which they were negotiated, etc. If a legal term comes up, either the German original can be used or a commonly understood but not necessarily exact translation.

      BTW, an official translation of the civil code is already available in the German justice ministry’s statute law database. Normally, that would be the only law you’d need.

      January 10, 2010, 7:41 pm

    4. Northern Dave says:

      Thanks for the link to the Bundesministerium der Justiz site, Martinned!

      1. It is really well written in English

      2. Section 231

      Self-help by mistake

      If a person does any of the acts described in section 229 in the mistaken assumption that the requirements necessary to exclude unlawfulness are satisfied, he is obliged to pay damages to the other party, even if the mistake does not result from negligence.

      Hmmmmm….can I get an time out to consider if the Polizei really are too far away to assist the little old lady before I ruin the sport coat of the purse-snatcher? :-) Sounds like some pretty universal legalese.

      January 10, 2010, 8:01 pm

    5. Martinned says:

      @Northern Dave: Here’s the list of all the translations that are available.

      As for section 231, I think the point is simply to put the risk for a mistake 100% with the would-be defendant. If the obligation to pay damages were limited to cases of negligence, that might put the plaintiff in a difficult evidentiary position, even though they normally did do anything to get stuck in this situation. (To stick with the little old lady example: you try to catch the purse-snatcher, but end up grabbing the wrong guy, causing injury or causing him to miss an important meeting. Should that person now prove that you acted negligently? Is that fair?) Maybe a more equitable solution would have been to allow the defendant to prove that he did not act negligently.

      Edit: Actually, I think the little old lady example doesn’t work anyway. After all, the article only talks about self-help, not help of another. Still, my point still stands.

      January 10, 2010, 8:18 pm

    6. Northern Dave says:

      Martinned: @Northern Dave: Here’s the list of all the translations that are available.As for section 231, I think the point is simply to put the risk for a mistake 100% with the would-be defendant. If the obligation to pay damages were limited to cases of negligence, that might put the plaintiff in a difficult evidentiary position, even though they normally did do anything to get stuck in this situation. (To stick with the little old lady example: you try to catch the purse-snatcher, but end up grabbing the wrong guy, causing injury or causing him to miss an important meeting. Should that person now prove that you acted negligently? Is that fair?) Maybe a more equitable solution would have been to allow the defendant to prove that he did not act negligently.Edit: Actually, I think the little old lady example doesn’t work anyway. After all, the article only talks about self-help, not help of another. Still, my point still stands.

      Ahh, I stand corrected on the example. Section 227 and 228 deal with self-defense of oneself or another, but you are quite correct that 229 refers only to oneself.

      January 10, 2010, 8:59 pm

    7. Martinned says:

      Northern Dave:
      Ahh, I stand corrected on the example.Section 227 and 228 deal with self-defense of oneself or another, but you are quite correct that 229 refers only to oneself.

      Anyway, that’s what a real life Civl Code looks like. The first Dutch civil code of 1838 was modeled after the French one. (Available in English here. A list of other French statutes translated in English here.) The German BGB of 1900 is generally considered an outstanding work of lawmaking, and the new Dutch Civil Code of 1992 was based mostly on its German counterpart. The same goes for many other Civil Codes that were enacted around the world since 1900. Wiki:

      The late 18th century and the beginning 19th century saw the emergence of the School of Pandectism, whose work peaked in the German Civil Code (BGB), which was enacted in 1900 in the course of Germany’s national unification project, and in the Swiss Civil Code (Zivilgesetzbuch) of 1907. Those two codes had been most advanced in their systematic structure and classification from fundamental and general principles to specific areas of law (e.g. contract law, labour law, inheritance law). While the French Civil Code was structured in a “casuistic” approach attempting to regulate every possible case, the German BGB and the later Swiss ZGB applied a more abstract and systematic approach. Therefore, the BGB had a great deal of influence on later codification projects in countries as diverse as Japan, Greece, Turkey, Portugal (1966 Civil Code) and Macau (1999 Civil Code).

      January 10, 2010, 9:13 pm

    8. Bill Poser says:

      The Germans are very practical people. The French, in contrast, are still a bit miffed that English courts are no longer conducted in French…

      January 10, 2010, 11:16 pm

    9. Anon says:

      Are any court proceedings in the US conducted wholly in a foreign language?

      I can imagine having small claims court or trials for minor criminal offenses being conducted in Spanish in some parts of the country. Maybe not a terrible idea when the parties may all speak better Spanish than English.

      January 11, 2010, 7:19 am

    10. BZ says:

      I believe that Puerto Rican local courts are conducted in Spanish; federal courts are in English.

      As for the proposition that it is a good idea to conduct proceedings in a language other than that of the jurisdiction, consider the role of the courts: are they to be solely the arbiters between two private parties or are they also to be considered as upholding the rules and priorities of the society and jurisdiction as a whole? In other words, if international businesspeople want to conduct their affairs in English, but the people of Germany want to know whether their courts are operating appropriately, how are the people to judge? Only through the inexact filter of translation? Case in point (one of a vast and increasing number): Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994)(Alito, J.).

      “[T]he general public does not have a constitutional right to have the State provide services in any particular language.” Yniguez v. Arizonans for Official English, 69 F.3d 920, 958 (9th Cir. 1995)(Fernandez, J., dissenting), vacated, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997); Guadalupe Org., Inc. v. Tempe Elementary Sch., Dist. No. 3, 587 F.2d 1022, 1026-27 (9th Cir. 1978)(rejecting demands for bilingual education because such choices are inherently political and for the people to decide).

      January 11, 2010, 10:28 am

    11. Martinned says:

      BZ: In other words, if international businesspeople want to conduct their affairs in English, but the people of Germany want to know whether their courts are operating appropriately, how are the people to judge? Only through the inexact filter of translation?

      Why would the translation be more inexact than the original? For all I know, the judge might write his ruling in German first, and then have it translated into English. The law might stipulate that the German ruling is authoritative in case of differences between the language versions. In any case, the German version, be it the original or a translation, has the exactness that comes with being in the same language as the relevant statutes and precedents.

      January 11, 2010, 11:47 am

    12. ADF Alliance Alert » German court proceedings in English? says:

      [...] The Volokh Conspiracy links to this report in the Local. [...]

      January 11, 2010, 1:07 pm

    13. Northern Dave says:

      BZ: I believe that Puerto Rican local courts are conducted in Spanish; federal courts are in English. As for the proposition that it is a good idea to conduct proceedings in a language other than that of the jurisdiction, consider the role of the courts: are they to be solely the arbiters between two private parties or are they also to be considered as upholding the rules and priorities of the society and jurisdiction as a whole? In other words, if international businesspeople want to conduct their affairs in English, but the people of Germany want to know whether their courts are operating appropriately, how are the people to judge? Only through the inexact filter of translation? Case in point (one of a vast and increasing number): Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994)(Alito, J.). “[T]he general public does not have a constitutional right to have the State provide services in any particular language.” Yniguez v. Arizonans for Official English, 69 F.3d 920, 958 (9th Cir. 1995)(Fernandez, J., dissenting), vacated, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997); Guadalupe Org., Inc. v. Tempe Elementary Sch., Dist. No. 3, 587 F.2d 1022, 1026–27 (9th Cir. 1978)(rejecting demands for bilingual education because such choices are inherently political and for the people to decide).

      I think what’s happening, BZ, in the German case is that they are losing home court advantage because cases are being dealt with outside of Germany (though impacting German interests). These are not for run of the mill you-shot-my-dog cases between individual citizens but big business cases. Would you like to have almost all cases of international business including those involving US businesses and contracting divisions of US government departments arbitrated by, say, French courts because the industry standard was French? As the article in the Local says:

      “The initiative was launched after it was noted that the most lucrative cases – for both state coffers and lawyers – were being conducted outside of Germany because international businesses did not want to handle legal matters in German.”

      Let’s face it, Home Court matters! (pun intended :-) )

      January 11, 2010, 7:10 pm

    14. Martinned says:

      Northern Dave: Let’s face it, Home Court matters! (pun intended :-) )

      Indeed. And so even if they can get these cases back to German courts, the courts might still end up applying foreign law, due to choice of law clauses.

      Q: Would these size cases be likely to end up in front of a jury in the US? If so, presumably that would put the US at a significant disadvantage, similar to the German disadvantage of working in the wrong language.

      January 12, 2010, 12:06 pm