English as official language of proceedings in commercial court proceedings in Germany

On 12th February 2010, the Minister of Justice, Ms. Roswitha Müller-Piepenkötter presented to the Federal Council of Germany a draft law, according to which English shall be established as language of communication in front of courts. Hereto special chambers for commercial affairs shall be established as part of the district courts, comparable to the already existing commercial courts in Germany.

Thereby Germany as business location shall become more attractive, since English as business language for international trade and business relationships is already established. Conclusively contracts, orders, deliveries, invoices etc. between companies are already drawn up in the English language. As far as legal disputes arise in connection to those business relationships, the parties want to solve them in the English language as well.

According to a statement by the Ministry of Justice of Hamburg, the English language plays a significant role in more than 1/3 of business law related proceedings, pending before commercial courts in Germany. To that effect, the initiators of the draft law bring forward the argument that litigants very often transfer the court of venue into English-speaking foreign countries, or call upon an arbitration tribunal with English as the tribunals language. Those developments shall be antagonized by introducing English as a court language in particular proceedings, which are also characterized by high values of claims.

The draft law is highly disputed in Germany. For instance the president of the German Supreme Court (Bundesgerichtshof) looks very sceptical at this proposal, since in his opinion justice flourishes by its language and he fears that if English will be introduced as language of communication before courts, more misjudgments will be rendered, since judges are not up to the English legal terminology.
Also in general the proposal is highly disputed, first of all by the following two arguments:

a) there is a lack of educated and qualified personnel, which would be in a position to deal with court proceedings and the tasks going along with such proceedings in the English language. The costs for education, advanced training and further education would simply be too high.

This argument is weakened by the Minister of Justice, by clarifying that only a small number of persons would have to be educated, since she is of the opinion that in most states within the Federal Republic of Germany only one chamber for international commercial affairs will be established. Furthermore, in legal disputes pending before those chambers, high values of claims are involved and thereby also a high fees revenue, which could be used in order to cover the costs for the education and training of the court`s personnel.

b) It is objected that the English legal terminology would not be able to describe the German legal system accordingly, since American and Anglistic legal concepts very often contain a different meaning and must be interpreted in another way as the German legal concept requires. Against this one must say that in the aforementioned cases already the contractual documentation etc. is drafted in the English language. Also in this respect the English legal terminology has been used in order to describe legal procedures. With such an argument business relationships between parties located in different jurisdictions would in general not be possible, since each party justifiably interprets the legal terms used, in accordance with the general ideas minted by their own jurisdiction. But also in cross-border business relationships such facts and circumstances must be described in one language. Already every day attorneys have to face this dilemma, if they advise in cross-border business relationships and they have got used to dealing with such issues in the past decades, finding expedient solutions for all parties involved.
Nowadays it is expected that a commercial lawyer is able to work within the English legal terminology and to draft a contract in accordance with the German law but in the English language in order to please his client. It would therefore only be coherent if such a degree on competence in the usage of the English legal terminology is also required from judges; the more since the education of a judge and an attorney, at least in Germany, run parallel.

Therefore we very much appreciate such a draft law, even if we ourselves do not believe that it will be enacted in the current version, due to the opposition by the courts, the judges and the public authorities. We can only hope that at least the restriction for presentation of documents in the English language, as far as they are only used as proof for a claim, will be put aside. Up to now it depends on the goodwill of the judge and the opposing party, if such documents must be translated by a sworn translator, which is associated with enormous costs, or if the documents are accepted by all parties in the English language.

bunk-alliance Rechtsanwälte, offers legal advice to middle-sized companies, both foreign and domestic, on all areas of commercial law, as well as solutions to complex issues.
Our law firm’s attorneys possess extensive knowledge in their jurisdiction and have broad range of experience in international cases. Be it company law, M & A, bankruptcy law, complex restructuring or debt recovery, together we formulate the best solution for you and your company.
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This release was published on openPR.