By Axel Jacob
Germany sees a growing debate that may result in German Courts to allow for English to be an optional language of proceedings and hearings under certain circumstances.

The German court system is famed for being comparably fast, efficient and competent and therefore remains a preferred choice for many parties. At the same time it holds the advantage of being more cost-efficient as let us say the US court system. A good example perhaps may be patent infringement cases. Whilst litigation in the US in patent infringement cases can be very lengthy and statistics tell us that only less than 5% of disputes actually make it to a proper trial the practice of German Courts in such cases suggests that a German court decision in favor of the patent holder can be obtained more efficiently, a fact that has led to many international infringement cases in front of German courts.
Whilst the German court language naturally is German, the reality in today’s globalized commercial world looks of course different. Global commercial relations are dominated by the English language. German businesses adopting international common practice therefore are not strangers to use English as the language for cross border contracts.

The use of English as a legal language, however, is accompanied by a tendency - where open to agreement - to choose English law as the governing law of such contractual relation as well as English courts as the chosen dispute resolution forum. This tendency in combination of course with the historic success of the Commonwealth and the US has also led to the dominance of English law and English dispute resolution forums in international commercial disputes. For example it is arguable that more than 90% of the world’s ship sale & purchase agreements are being drafted not only in English but in accordance with English law, with the remainder probably being drafted in accordance with US law.
German businesses are of course accustomed to use English in their contractual cross-border relations but find themselves in a dilemma when the choice of German law may not just be a matter of convenience. In such situations they will usually have to refer to Arbitration, if the foreign counter party cannot be convinced to accept German courts. Furthermore proceedings in front of German courts would require the translation of the contracts and all correspondences and supporting documents into German, a volume of translation work that can not only be costly and time consuming but also inherits the risk of some important detail becoming lost in translation.

It would therefore make a lot of sense if German courts could offer English as official courts’ language for such international commercial cases and would make Germany as a dispute resolution destination much more attractive. It has been pointed out, though that - not to mention a necessary legislative amendment to the German procedural laws - such a move would require a number of administrational and organizational reforms for the courts in order to secure the necessary judicial and administrational personnel required to offer such service to the business community. Furthermore to calm any constitutional concerns the option can only be available in limited circumstances. It is apparent that this would require not only a commercial dispute of some volume and with a clear international dimension but moreover both parties would have to expressly agree on the choice of English as the Courts language.

The use of English as a foreign court language would of course not be new. In fact in the UAE we have the DIFC Courts whose procedures do not offer but require English as the only official court language. Here Arabic cannot even be chosen anymore. Of course this is accompanied by the far more reaching fact that the entire court rules and most of the independent DIFC laws are drawn after their English counterparts. But it is precisely the more symbolic use of the English language that attracts the international business community to the DIFC court system, because in a region that otherwise requires Arabic to be spoken in court the very use of English in the DIFC courts ensures easy access and transparency of the proceedings and hence control for international businesses.

It will be interesting to see if and when Germany adopts the new legislations. From a commercial point of view there is no reason why it should not happen soon. Without doubt the German legal landscape would benefit from it. As there appear to be no serious constitutional issues that could cause a real obstacle for such a motion, the only political resistance to it may be fuelled by a rather populist approach of national conservatism. Though unlikely to be of much substance, we can already hear the objections likely to be raised by some politicians.