German courts holding commercial cases in English

The subject of German judges holding cases in English has raised its ugly head again and is not likely to go away. I’ve mentioned it several times, from 2010 on.

Courts in Paris and Amsterdam as well as Frankfurt would like to take over the international commercial cases so often held in London. Apparently after Brexit UK decisions won’t be automatically effective in the EU and this will slow things down.

Frankfurt am Main Landgericht (Regional Court) has announced this week that from January it will have an English-speaking commercial chamber. From Legal Tribune Online (in German!):

Gerichtsstandort Frankfurt Eng­lisch­spra­chige Kammer für Han­dels­sa­chen ab 2018

Das Landgericht (LG) Frankfurt am Main will ab Januar 2018 eine englischsprachige Kammer für Handelssachen einrichten. Wie das LG am Donnerstag mitteilte, soll Frankfurt damit als Gerichtsstandort gestärkt werden. “Unternehmen sollen die Möglichkeit erhalten, nach ihrer Wahl die Verhandlung auf Englisch durchzuführen”, sagte der Gerichtspräsident Wilhelm Wolf.

I’m not going to analyse this at length, but it is fun reading some of the comments on articles quoted here.

Here is something in English from Bloomberg:

Paris, Frankfurt Try to Grab Lucrative Legal Action From London

“London is stepping into the shadows,” says Roman Poseck, president of the appeals court in Frankfurt, where officials plan to have an English-language panel in place by January. “Frankfurt wants a piece of the pie.”

(Is this what’s known as a mixed metaphor?)

This is all early November 2017 stuff. It was being discussed in March though.

Here is my earlier report on a colleague’s description of the first court hearing in English:

First German court hearing in English

I remember coming to the conclusion that the judges understood each other despite using English, not because of it.

The problem for me, of course, is the language, and above all the gulf between what some judges think is fluent English and what some translators and interpreters think. Especially when it comes to talking about one’s own or a different legal system in a foreign language.

Language that even judges don’t understand, sought on Twitter

A tweet yesterday from Prof Jo Delahunty QC:

Twitter help plz?HoL session nxt wk on legal interpreting:can u think of legal terms/turn of speech that r unintelligible even 2 lawyers?

Suggestions posted there:

Scottish law reports and odd use of Latin.
Any use of Latin
‘We are sitting on x day’ – do clients think we distinguish between standing up or not

‘Conference’ instead of meeting.

‘Shall remain in place until after c has left the jurisdiction’ but c can’t leave the jurisdiction if it’s still in place

Ex tempore, de minimis cd. esily be expressed in English.

Subtle judicial putdowns.

‘Miss X’s ambitious submission…’

‘Bold’. ambitious slightly more bitchy than bold.

Notwithstanding

In the alternative

Home Office unable to understand that ‘within 14 days’ means a fortnight – they think it means 3 months or so.

‘Proportionality’ in costs: mine are proportionate, yours are extortionate.

Double negatives and putting stuff in the passive – done to communicate nuance, but hardly plain English.

‘Forthwith’ – if you mean RIGHT NOW say so!

‘I listened to smultran of a ECJ hearing and the interpreter gave the exact opposite meaning for one word.’

Frequently words that have specific legal meaning or use but are in daily palance that cause bother, e.g. ‘robbing’.

Assault – conversion – occasioning – blackmail. I ‘submit’

And our insistence on using fancy words like ‘vernacular’ or ‘particularise’ or ‘traverse’.

Disguised compliance.

Mutatis mutandis

I don’t know if these examples are meant to be things difficult for interpreters, or for readers who aren’t lawyers.They are presumably what barristers think are confusing.

This kind of language is used by German lawyers too. I don’t find it particularly difficult to undestand becasue I think I switch my mind to that register. But I am not sure about ‘language that even judges don’t understand’.

 

LATER NOTE

I am told that the House of Lords meeting referred to in the tweet was the All Party Parliamentary Group on Modern Languages, of which a bit more in a later post.

The Oxford comma

Why do US American sources refer to the Oxford comma (also known as the serial comma)? My old copy of the Chicago Style Manual doesn’t call it that. It’s the standard thing in the USA. In the UK, the Oxford University Press famously differs from the many in permitting -ize as well as -ise (subject of another rant since someone in the EU has decided it must always be -ise) and in supporting the use of the serial comma.

Court cases about punctuation are always fun. The latest one was in the USA and concerns the following text:

(Overtime rules do not apply to:)
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

Should it be packing for shipment or distribution, or packing for shipment, or distribution? that is, does it refer to distribution, or just to two kinds of packing?

The New York Times reports:
Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute

It refers to the Maine Legislative Drafting Manual, which says this about commas:

Commas are probably the most misused and misunderstood punctuation marks in legal
drafting and, perhaps, the English language. Use them thoughtfully and sparingly.

A. Series. Although authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.

Do not write:
Trailers, semitrailers, and pole trailers
Write: Trailers, semitrailers and pole trailers

The Maine Legislative Drafting Manual does not call it the Oxford comma. What British person has been influencing the US media this week?

LATER NOTE: Lynne Murphy says ‘Oxford comma’ is the more common term in USA and there is a song by Vampire Weekend, ‘Oxford Comma’. Wikipedia has more:

On January 28, 2008, Michael Hogan of Vanity Fair interviewed Ezra Koenig regarding the title of the song and its relevance to the song’s meaning. Koenig said he first encountered the Oxford comma (a comma used before the conjunction at the end of a list) after learning of a Columbia University Facebook group called Students for the Preservation of the Oxford Comma. The idea for the song came several months later while Koenig was sitting at a piano in his parents’ house. He began “writing the song and the first thing that came out was ‘Who gives a fuck about an Oxford comma?'” He stated that the song “is more about not giving a fuck than about Oxford commas.”

It looks to me, but what do I know, as if the term was taken up because it seemed weird. Lynne says (on Twitter) that the Chicago Manual would not call it the Oxford comma because OUP is a rival publisher. I’m not now going to research how long the term has been used in the USA because it is very low on my list of things to do.

LATER STILL NOTE:

I see I actually posted about this song in 2010.

Rape yellow/Rapsgelb

Aldi scraps name of ‘rape yellow’ paint after complaints from sexual assault victim

rape yellow
Only in England? It’s rather shocking to read that Aldi has changed the name rape yellow on its paint to rapeseed yellow after a complaint from a customer who had been sexually assaulted.

Apparently the plant is known as rape or rapeseed, that is, the word rapeseed can refer to the whole plant. I am sure the yellow is the yellow of the flowers, not the seeds, as some papers seem to think. It’s also known as oilseed rape and canola.

The name “canola” was chosen by the board of the Rapeseed Association of Canada in the 1970s. The “Can” part stands for Canada and “ola” refers to oil.[5][6] However, a number of sources, including The Free Dictionary, continue to claim it stands for “Can(ada)+o(il)+l(ow)+a(cid). The name was coined partially to euphemize the name of rapeseed oil, to avoid the negative connotations of rape as a violent sex crime, from the Latin “rapere”.

But the standard name is either rape yellow or rapeseed yellow, see RAL 1021 here.

A Wikipedia site seems to be mainly German, because it says of light ivory ‘Mandatory for taxis in Germany since 1971, although in limited states only in recent years’ and broom yellow: ‘Deutsche Bundespost since 1980, since 1998 Deutsche Post AG’. And for what it calls rapeseed yellow: ‘Österreichische Post, Deutsche Bundespost 1972–1980, Gold in the Flag of Germany’.

This reminded me of the paediatrician/paedophile story, but apparently that was a myth.

Well, it’s hard to forget something that never happened. There was no attack on a paediatrician in Portsmouth. As is frequently the case when relatively minor events are turned into massive morality tales, the facts of what happened 10 years ago are continually twisted – in Gwent, people! – it was not carried out by the ‘populace’ but probably by a small group of teenagers.

A mere conduit?

Under the E-Commerce Regulations, an ISP can escape liability for content because it is a mere conduit.

Conduit in the figurative sense: the OED says

4. fig. The channel or medium by which anything (e.g. knowledge, influence, wealth, etc.) is conveyed;

But currently in the USA, there is an argument as to whether an interpreter or translator is a mere conduit.

I suppose that’s how some customers see us.

When the police use an interpreter in an interrogation and do not record the defendant’s words but only the translation of them into English, can the interpreter be challenged legally? Lawrence Solan writes in his Balkinization blog:

An interesting question concerning forensic linguistics is making its way through the appellate courts: When the police use an interpreter during an interview (or interrogation) of a suspect who later becomes a defendant in a prosecution, and the defendant’s words in her original language are not recorded, does the defendant have a constitutional right to confront the interpreter? As a cost-saving measure, more and more law enforcement agencies, and some courts, have been retaining services that interpret the interview over the telephone. One of them, Language Line Solutions. http://www.languageline.com/, has found itself in the middle of this constitutional question.

courts should be more realistic in their understanding of what interpreters and translators can do. First, courts should stop relying on the “conduit” theory of translation. Compare two reputable translations of any work of literature. They will be similar in some ways, different in others. To the extent that word choice matters in the context of a criminal prosecution, nuanced differences may affect a case’s outcome. Second, interpreters make errors. The legal system should recognize this. Third, courts should not accept as accurate representations that the entire professional staff of a private firm retained by the government is dispassionate and of high professional character. Surely the defendant need not accept such representations.

Solan recommends that at least the original statements should be recorded as potential evidence.

Volkswagen CEO speaks English

It seems that Matthias Müller was speaking in acoustically confusing surroundings at the North American International Auto Show in Detroit:

Frankly spoken, it was a technical problem. We made a default, we had a … not the right interpretation of the American law. And we had some targets for our technical engineers, and they solved this problem and reached targets with some software solutions which haven’t been compatible to the American law. That is the thing. And the other question you mentioned — it was an ethical problem? I cannot understand why you say that.

(I have the impression that the word ‘default’ is popular with Germans speaking bad English). Colleagues wonder why he was not accompanied by an interpreter. The interview can be heard here. Müller was allowed a ‘do-over’ later:

Mueller: I have to apologize for yesterday evening because the situation was a little bit difficult for me to handle in front of all these colleagues of yours and everybody shouting. OK. Thank you very much for coming again and giving me the opportunity to say some words.

NPR: When we talked yesterday, the key line seemed to be that this was a technical error. Which sounds to us in English, like, “Oops.” When it wasn’t an oops. It was more than a technical error. It seemed to be intentional.

Mueller: Yeah, the situation is, first of all we fully accept the violation. There is no doubt about it. Second, we have to apologize on behalf of Volkswagen for that situation we have created in front of customers, in front of dealers and, of course, to the authorities. …

I don’t quite understand what Müller means by ‘I cannot understand whether you say that'(corrected in this second transcript to ‘why you say that’).

Details of the lawsuit against Volkswagen here.

LATER NOTE: Richard Schneider reports that Müller intends always to use an interpreter in future appearances in the USA. He apparently understood ‘ethical’ as ‘technical’ in the above story.

German juror in hot water

Miklas Scholz, professor of civil engineering at Salford University, caused a trial in which he was a juror to collapse because he researched the defendant on the internet. He claims that when the judge told the jurors they would be ‘in hot water’ if they did this, he did not understand what was meant.

The Independent writes (with mugshot):

“I just did not understand what the phrase ‘in hot water’ meant in this context. It just seems meaningless,” he told the Daily Telegraph.

“I have written many journals so I am used to writing in proper English and proper sentences and wouldn’t use words and phrases like being ‘in hot water’ to describe being in trouble because it is not correct.

“They don’t mean anything, definitely not in the context of looking on the internet.

“You would say someone is ‘in trouble’ and the judge should have said that.”

Translating barristers’ language

The Secret Barrister tries to help a work experience student understand criminal court proceedings at Translating barrister-speak: A beginner’s guide.

For example, ‘My client has had the benefit of robust advice’ translates as ‘I have told the stupid dildo REPEATEDLY how utterly rubber ducked he is’.

Legal cheek decodes what a supervisor says to a supervisee.

For example, the supervisor says ‘I hear what you say’, the supervisee understands ‘He accepts my point of view’, but the supervisor means ‘I entirely disagree and do not want to discuss it further’.

This does ring very true.