For another blog on this topic, see German American Law Journal.

AmCham is what the American Chamber of Commerce calls itself. It has produced a Positionspapier des Corporate an Business Law Committee von AmCham Germany: Englisch als Gerichtssprache in Deutschland. Maybe there’s an English version, but I haven’t found it.

I was particularly glad to read that some circles in Frankfurt am Main do not support the initiative, because in Frankfurt am Main there is the greatest number of lawyers who use English in their work. The Landgericht judges could not agree to support it – persons surveyed had misgivings in particular with regard to quality. Similarly, the board of the Rechtsanwaltskammer, the Frankfurt bar association, could not support it either, again on grounds of quality.

Interessant ist in diesem Zusammenhang, wie sich die betroffenen Justizkreise an dem wohl internationalsten Standort Deutschlands, in Frankfurt am Main, zu den Reformbestrebungen stellen.

Die Richter am Landgericht Frankfurt am Main haben sich in einer im Jahr 2010 durchgeführten Befragung nicht dazu durchringen können, sich der von den Verbänden unterstützten Initiative zur Einführung von Englisch als Gerichtssprache anzuschließen. Bedenken wurden insbesondere im Hinblick auf die Sicherung eines hohen Qualitätsstandards geäußert.

Erstaunlicherweise hat sich auch der Vorstand der Rechtsanwaltskammer Frankfurt im Frühjahr 2010 nicht zu einer Unterstützung dieser Initiative durchringen können. Auch hier standen insbesondere Befürchtungen hinsichtlich einer Sicherung des Qualitätsstandards im Vordergrund. Da in kaum einer anderen deutschen Stadt Englisch so häufig im täglichen Verkehr anzutreffen sein dürfte wie in Frankfurt, muss diesen Bedenken besonderes Gewicht beigemessen werden. Internationalität kann eben nicht von bestimmten Qualitätsstandards abgekoppelt werden.

There’s also some discussion of the differences between German and English procedure. For instance, discovery is important in the common law, together with fishing expeditions, whereas in Germany the parties each have to present their own facts and prove them – and those who choose the German courts probably want to avoid the discovery system, which they may regard as largely superfluous.

However, the German understanding of oral proceedings is described as gewöhnungsbedürftig (needs getting used to), which is rather politely put: the lack of a full transcript – German judges dictate witness statements and thus filter them. I remember being surprised by this myself, hearing the Amtsgericht judge translate the witness’s Franconian statements into High German, and when I was contacted by someone in Britain who sells transcription software and wanted to enter the German market, I had to suggest to him it might not have a future.

Viel gewichtiger allerdings ist der Einwand, dass das Verfahren in Deutschland zwar unter dem Grundsatz der Mündlichkeit steht, dass dieser Grundsatz allerdings aus Sicht ausländischer Juristen sehr gewöhnungsbedürftig gehandhabt wird. Was soll eine ausländische Partei von einer mündlichen Verhandlung halten, in der laut einem knappen (laut Entwurf des § 184 Abs. 2 GVG englischsprachigen) Protokoll „die Rechts- und
Sachlage umfassend erörtert“ wurde? Und, schlimmer noch, von einer Beweisaufnahme, bei der die Zeugenaussagen zwar in Englisch, aber nicht wörtlich („verbatim“), sondern zusammenfassend durch den Filter des eine Aussage ins Protokoll diktierenden Richters wiedergegeben werden? Die Art der Protokollführung in deutschen Gerichtsverfahren ist im internationalen Vergleich so abschreckend, dass sie aus Sicht anderes gewöhnter
Juristen die Vorteile einer Verfahrensführung in Englisch schnell zunichte macht. Wer je in einem Schiedsverfahren die segensreichen Vorzüge eines Wortprotokolls erleben durfte, wird einer Beweisaufnahme vor einem deutschen Gericht – gleich ob in Deutsch oder in Englisch – und noch mehr der Bewertung von Zeugenaussagen nach Auswertung eines solchen Protokolls sehr skeptisch gegenüberstehen.

And indeed, I hadn’t thought of the problems when German judges dictate the record in English.

Another comment is that very long contracts may have to be translated at great expense. AmCham is storngly of the opinion that exhibits in English should be permitted without a requirement of a German translation, because the translation expenses can be very high and this tends to act as a bar to further proceedings – the parties may feel forced to settle.

As for the quality of the English spoken by attorneys, AmCham thinks the client who is a native speaker of English should be capable of judging that. But what about the linguistic abilities of judges? It has been stated several times (by the proponents of the bill) that getting an LL.M. abroad proves your English is good enough, but there are some, including some in AmCham, who don’t regard it as adequate.

In diversen Publikationen wird ausgeführt, dass ein Auslandsaufenthalt, insbesondere ein Master-Studium im anglophilen Ausland (und damit meist der Erwerb eines LL.M.-Titels) eine entsprechende sprachliche Qualifikation belege. Es gibt allerdings (auch innerhalb der amerikanischen Handelskammer) ernstzunehmende Stimmen, welche allein eine derartig nachgewiesene Qualifikation für nicht ausreichend halten. Zudem wäre zu überlegen, wer eine entsprechende Zulassungsprüfung überhaupt abnehmen sollte und ob hierfür innerhalb der Justiz überhaupt die nötige Sachkunde bereitsteht. Wie groß ist denn eigentlich der „Pool“ entsprechend qualifizierter Richter beim BGH oder OLG? Diesbezüglich ist noch eine ganze Reihe von Fragen unbeantwortet.

Google Blog:

Giving you fresher, more recent search results
11/03/2011 08:19:00 AM
Search results, like warm cookies right out of the oven or cool refreshing fruit on a hot summer’s day, are best when they’re fresh. Even if you don’t specify it in your search, you probably want search results that are relevant and recent.

If I search for [olympics], I probably want information about next summer’s upcoming Olympics, not the 1900 Summer Olympics (the only time my favorite sport, cricket, was played). Google Search uses a freshness algorithm, designed to give you the most up-to-date results, so even when I just type [olympics] without specifying 2012, I still find what I’m looking for.

This is not what we translators want, and how does Google know what the majority of searchers want?

This follows another idiotic change: it used to be easier to search for obscure words. Now, Google says ‘Did you mean X? Searching for X’ – you can click on your original term if you still want it.

Some colleagues say they are using DuckDuckGo and Blekko.

I had forgotten that two days before the Bundestag committee hearing on introducing English as a language in the German courts, there is one on anchoring German in the constitution.

Actually this is a meeting of the Petitionsausschuss.

One of the experts invited to that is Anatol Stefanowitsch, a professor of linguistics who has a blog and who writes on the subject here (in German). He links to two earlier Guardian articles on ‘Denglish’: German
s language finds English voice and Mind your language: German linguists oppose influx of English words.

I find this constant harping on about anglicisms really irritating. I suppose it’s the sort of thing some journalists love to write about. In fact there was an article in the Fürther Nachrichten again today.

Stefanowitsch interviewed Falco Pfalzgraf, an expert on the subject of language purism who teaches at London University. Among other things he received advice on how to behave at the hearing:

AS: Zum Schluss noch eine praktische Frage: Haben Sie noch einen Ratschlag für mich, wenn ich am Montag im Petitionsausschuss dem VDS-Vorsitzenden Walter Krämer gegenüberstehe?

FP: Ich bin Walter Krämer nie persönlich begegnet, habe aber viele seiner Auftritte im Fernsehen verfolgt. Ich würde sagen: Der Mann glänzt weder durch Sachlichkeit noch durch Selbstbeherrschung. Zu beidem würde ich Ihnen raten.

On November 9 the Bundestag law committee will be discussing the draft bill for an Act to introduce Chambers for International Commercial Matters (Gesetz zur Einführung von Kammern für internationale Handelssachen – KfiHG).

On the Bundestag site you can find the text, list of the seven experts who have been invited, agenda and opinions of four of them, all in German.

All those involved seem pretty positive about the whole thing. I noted some points in the bill and accompanying blurb – paraphrase of the bill except for my remarks in brackets):

1. At present German is the court language. These chambers at the Landgericht will be able to hold proceedings in English, and their records and decisions can be in English too – the parties have to agree. The Oberlandesgericht courts which hear appeals from the chambers can do it in English too (but no reference to the Bundesgerichtshof).

2. In introducing these chambers, Germany will become much more attractive as a jurisdiction. It will be shown that Germany has judges of the highest quality who have trained abroad, and similarly brilliant lay judges with great practical experience.

3. The use of English won’t encourage the introduction of the common law – it will be a case of German law, German courts, but English language.

4. Obviously the court personnel need to speak English too. But there are a large number of judges who can not only speak English but also know the legal terminology (I always think people put too much emphasis on the terminology – this terminology needs to be put into sentences – but these judges are so good at English that we need have no fear).

5. The work required in doing an LL.M. in an English-speaking country is scarcely different in language and content than writing a judgment.

6. We realize that English legal concepts don’t always coincide with German legal concepts. But the content of German legal concepts can certainly be correctly expressed in English (but by whom?).

7. There may be problems with the English of the court staff (after all, they aren’t judges and they haven’t done an LL.M.). But there won’t be many of these chambers in Germany, and training courses may be introduced.

8. A problem that arises is the principle that court proceedings are public: how many of the public in the court can understand English. In April 2008 there was a survey in which 67 per cent of those questioned, over 16 years old, said that they can speak and understand English fairly well. (A new language test: what the person claims to be able to do).

9. There shouldn’t be any costs problem – for instance, a draft decision written in German and translated into English will be borne by the parties. (Am not sure that drafting in one language and translating into another is the best way to go).

10. The opinion of the Federal government is attached. It is fairly pro. It says that how far there is really a need for this kind of chamber for commercial matters will have to be determined in practice.

I found an interesting opinion of the American Chamber of Commerce in Germany which I will deal with in my next entry.

St. Jerome Publishing, who produce a wonderful series of books on translation practice, among other things, also publish a periodical called The Translator. I’ve never seen it but the tables of contents online certainly look very intellectual.

They are now looking for contributions to a special edition on Law in Translation, to be published in 2014. The editor is Dr Simone Glanert, who is a law lecturer at Kent University (UK). For the call for papers, see Juris Diversitas.

Some mysterious reader has nominated Transblawg as an international and foreign law blog at LexisNexis.

We don’t quite fit into any categories, but thanks anyway!

Theoretically you can improve Transblawg’s chances by commenting somewhere on the LexisNexis site, but it sounds quite a procedure.

I’ve mentioned the Radmacher/Granatino case before: Prenups in the UK/Eheverträge in GB. It was regarded as an exciting case, because it decided that prenuptial contracts could be valid in England and Wales. But since the parties entered into their contract in Germany and were not British, although their married life was in England, I wasn’t sure how much effect it might have. (The marriage should have been governed by English law, but the fact that the contract was entered into in Germany affected the court’s decision).

At all events, the contract giving Mr Granatino no claims in the case of divorce was upheld. I have now seen an article (in German) by a German notary commenting on the fact that Mr Granatino did not get a translation of the contract, although the German notary told him to. Reading the case report, one does not get the impression that it would have changed his decision to enter into the contract, and I presume that the court thought he had made his own bed and had to lie in it, so to speak.

The decision can be found at www.bailii.org. Here’s part of it:

# At the time the parties met in November 1997 they were both living in London. The wife comes from a very rich German family, whose wealth is derived primarily from two very successful businesses in chromatography, filtration and the processing/refinement of paper, and the manufacture of paper. The husband comes from a family which is well-off, his father having been a senior executive with IBM, at one time in charge of its European operations. He now resides in London for tax reasons, but retains property in Antibes. When the couple met the husband had been working in London for about 2 years with JP Morgan & Co, and was earning about £50,000, which was a substantial sum at that date, particularly given his age, and which had increased to about £120,000 by the time the ante-nuptial agreement was executed. They became engaged in June 1998 and were married in November 1998. They made London their home.

# It was the wife who suggested that the parties should enter into an ante-nuptial agreement. Although the judge was sure that the wife wanted her husband to love her for herself, the wife emphasised her father’s insistence, because she felt it made her seem less insensitive to her future spouse, given that the terms excluded all his potential rights (even in times of crisis). The wife did not make it obvious that she personally demanded it as a precondition of marriage. The judge found that the husband was eager to comply because he did not want the wife to be disinherited, he wanted to marry her, and he could not perceive of circumstances where he would wish to make a claim.

# The wife’s family decided that this agreement would be drawn up in Germany by a notary, Dr N Magis, who had undertaken other work for the family. The instructions to Dr Magis came originally from the wife’s mother on 6 July, 1998, who told him that the marriage was to be in London in the autumn and that neither of the parties wished to make any claim on the other in the event of divorce. Dr Magis pointed out that such a deal might leave a young mother with children in difficulty but he was informed that the daughter’s income was some DM500,000 a year plus other monies managed by their father and so despite the future son-in-law’s excellent income “even in the worse case scenario there would be no risk to their daughter”. On the same day, 6 July, 1998, Dr Magis spoke by telephone to the wife. She confirmed the facts given by her mother. It was agreed that the draft was to be prepared as quickly as possible in order to give the husband “an opportunity to prepare for the conclusion of the contract” which was to be signed on the first weekend of August. Dr Magis was insistent that the husband had sufficient time so that he could take advice if he wished and fully understand the implications of what he was signing.

# On 17 July, 1998 Dr Magis sent by fax to the wife a draft of the agreement, under cover of a letter in which he wrote: “You wanted to discuss the content of the agreement with your future spouse and have it translated into a language convenient for him”. In the draft, which was in German, there was a clause for the parties to insert the approximate value of their respective assets; but the wife telephoned Dr Magis that day and said that the clause should be deleted and that she and the husband would separately notify each other of the value of their assets.

# A second draft was produced by 20 July, 1998 and it was sent to the wife’s father. On 23 July, 1998 the wife telephoned Dr Magis and told him that she had discussed the draft with her father and he wanted additions in relation to company shares – specifically that the husband should not be able to inherit them directly or “circuitously via their children”. It was agreed that this would be dealt with by the wife’s drawing up a will. A final draft version was made available to the wife in London at about this date.

# The judge found that it was highly unlikely that the wife showed the husband the first draft, or that she informed him about her mother’s or father’s involvement in the drawing up the terms of the agreement. But the judge rejected the husband’s evidence that he did not see the draft at all. The judge found that the wife showed him the final draft which was available on about 24 July, 1998, about one week before the signing ceremony. The basic terms were made clear to the husband, but the husband was not made aware that Dr Magis wanted him to have a translation to give him a proper opportunity to consider the precise terms and see a lawyer.

# On 1 August, 1998 the parties attended at the office of Dr Magis near Düsseldorf. Their meeting with him lasted for between two and three hours. The husband told Dr Magis that he had seen the draft agreement but that he did not have a translation of it. Dr Magis was angry when he learned of the absence of a translation, which he considered to be important for the purpose of ensuring that the husband had had a proper opportunity to consider its terms. Dr Magis indicated that he was minded to postpone its execution but, when told that the parties were unlikely again to be in Germany prior to the marriage, he was persuaded to continue. Dr Magis, speaking English, then took the parties through the terms of the agreement in detail and explained them clearly; but he did not offer a verbatim translation of every line. The parties executed the agreement (which bears the date of 4 August, 1998) in his presence.

# Not only did the husband not take advantage of Dr Magis’ wish to postpone execution so that he could take independent legal advice, but in the 4 months or so following the execution of the agreement at the beginning of August 1998 until the marriage in London on 28 November, 1998, the husband did not take the opportunity to seek independent advice. .

Actually Mr Granatino was earning a lot less as a Ph.D. student at Oxford and he wanted some ancillary relief so he could afford a house where his daughters could visit him. He wasn’t asking for half his wife’s property.

The question now is why the husband did not get independent legal advice. The notary allowed himself to be persuaded to help the couple enter into the contract, and he used English, which both understood, to go through the contract, if not in full detail.

The article by Dr. Jörn Heinemann, a German notary, commenting on this is entitled Wer nicht übersetzt, bleibt dumm (If you don’t translate, you will stay stupid). The author concludes:

So oder so ähnlich ist es schon vielen Notaren ergangen. Die Bemühung, fremdsprachige Beteiligte schon im Vorfeld einer Beurkundung und nicht erst im Verhandlungstermin mit dem Inhalt des Rechtsgeschäfts vertraut zu machen, scheitert oft am Desinteresse des Betroffenen oder am Wunsch des anderen Vertragsteils, die rechtlichen Konsequenzen des Vertrags zu verharmlosen.

(Many German notaries have had this experience – they tried to arrange for parties who were not German speakers to get information in advance, but either the party was uninterested or the other party wanted to play down the legal consequences of the contract).

I also often wonder about notaries who do the English translation themselves. It’s common for a notary to claim to speak wonderful English, but I’m not convinced they always do.

(Article found via Forum, the journal of ATICOM, a German translation association).