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.