The Use of English Before Swiss Courts: The

In the aftermath of the Brexit referendum in 2016 and the withdrawal of the UK from the EU on 31 January 2020, several jurisdictions established so-called «international commercial courts», at which English is the standard language. Thus far, there have been few such initiatives in Switzerland. However, according to the ongoing revisions to both the Federal Act on International Private Law and the Swiss Civil Procedure Code, it is intended to allow the use of English in certain situations. Unsurprisingly, this has given rise to a wide-ranging debate in multilingual Switzerland. The present contribution outlines this discussion and proposes several practical solutions on how to deal with this delicate political issue.


I. Introduction
Beyond doubt, English is one of the languages that are most widely used by nonnative speakers around the world, and it still beats every other language by the total number of speakers. 1 Often described as a lingua franca, 2 it is used not only in everyday life but especially in international trade -and the many disputes arising from there. For this reason, English is used not only in courts in Englishspeaking countries but also in several international commercial courts around the globe which have been established in recent years. The goal of providing such specialized courts is that domestic companies engaging in cross-border transactions will resolve their disputes in a court and under the laws of their own country. 3 When focusing on Switzerland, two important milestones should be mentioned in this regard, at both the federal and cantonal level. First, according to the ongoing revision of the 12 th chapter of the Federal Act on International Private Law 4 (IPLA CH) governing international arbitration, it is planned to allow legal submissions to be filed in English with the Federal Supreme Court (FSC), which usually acts as the sole appellate court for ____________________________ 1 The Ethnologue 200. However, this is mainly because English enjoys such popularity as a second language. For instance, far more people speak Mandarin Chinese as a first language than English; see Wikipedia. 2 A «lingua franca» may be defined as «any of various languages used as common or commercial tongues among peoples of diverse speech»; see the Merriam-Webster.com Dictionary. both domestic and international arbitration proceedings. On 24 October 2018, the Federal Council published its dispatch and the parliamentary debates remain ongoing. While the National Council supported the novelty, the Council of States argued against it. 5 Thus, it remains uncertain if the two councils will reach a consensus in the subsequent resolution of differences procedure.
Second, the Swiss Civil Procedure Code 6 (CPC CH) governing cantonal state court proceedings is also under revision and has, among others, a similar goal: to create a legal basis at the cantonal level for the filing of legal submissions in English, where the parties agree to it. The Federal Council's dispatch was published on 26 February 2020, and the parliamentary debates are about to start shortly.
Thus far, the debates on the revision of the IPLA CH suggest that the proposed amendment is controversial; it is expected that the discussions on the revision of the CPC CH will take a similar turn.
The present contribution aims to set out the pros and cons of using English in state court proceedings and weigh the various actors' interests (III). At the same time, several suggestions are made as to how the current issue might be addressed. As the debates on the revision of the CPC CH have not yet begun, the focus is mainly on appellate proceedings in arbitral matters before the FSC. But first, a short comparative analysis (II) is re- See the discussions in more detail. 6 Swiss Civil Procedure Code of 19 December 2008, as amended on 1 January 2020 (CPC CH; SR 272). quired, to put the present topic in an international context before focusing on the situation in Switzerland.

II. Comparative Aspects
The London Commercial Court has a long history of resolving cross-border disputes involving not only UK residents, but also continental Europeans, as the growing number of litigants from the region confirms. 7 However, due to the UK's departure from the EU on 30 January 2020, important EU legislation in the field of international commercial law will soon cease to apply. As a consequence, the taking of evidence and the recognition and enforcement of decisions rendered by English courts in EU member states will become much more difficult. 8 For this and other reasons, several European countries have taken the opportunity to establish international commercial courts with English as the applicable language of the proceedings. 9 In Germany, although the official language is German, 10 it has been possible since 2010 to conduct proceedings in English before the Cologne Higher Regional Court (Oberlandesgericht) and as- English may also be used provided that the court and the parties give their consent. The judgment and procedural rulings shall be drafted in one of the official languages in any event.
According to the FPC, it has never refused to conduct proceedings in English, as long as the parties have consented. ally increased; and since 2016, about 30% of all ordinary proceedings and 20% of summary proceedings have been held in English. 19 In view of litigants' growing desire for full proceedings (i.e., also including the decision) to be conducted in English, the FPC has demanded for several years now that Art. 36 of the Patent Court Act should be amended accordingly -albeit without success thus far. 20

State Court Proceedings
At the cantonal level, in a very early draft of the CPC CH from 2003, the Federal Council proposed that the use of English in civil proceedings before cantonal courts should be permitted only if the parties and the court approve. 21 However, this idea was ultimately abandoned and, according to the current Art. 129 CPC CH, proceedings must be conducted in the official language(s) of the respective canton. 22 In 2018, when the current process of revising the CPC CH commenced, the Federal Council showed itself willing to amend federal laws to enhance the attractiveness of Switzerland as a forum for the resolution of international commercial disputes. 23 During the subsequent consultation process, the Zurich Bar Association proposed the establishment of a option; it remains at their discretion to do so. It may be expected that this innovation will be of significant interest in cantons which play an important role in international commerce, such as Geneva and Zurich.
However, if the proposed amendments are enacted, there will be a divergence between cantonal and federal proceedings. At the cantonal level, the full proceedings may be conducted in Englishthat is, including the legal submissions, the oral arguments in court and the final decision. Before the FSC, however, this would apply to the legal submissions only, as foreseen by the proposed amendment to appellate proceedings in arbitral matters (see infra III.3.a). 30 It remains to be seen how the proposed amendments will be received in the upcoming debates of the Swiss Parliament. Even if they are enacted, it will remain at the cantons' discretion to avail of them; otherwise, the status quo will prevail.

Arbitration a) Introduction
Unsurprisingly, in international arbitration, English is the predominant language of the proceedings. tration have chosen English as the applicable language of the proceedings and the arbitral award is not challenged, this fact has little consequence. However, if one of the parties tries to set aside the award, the legal submissions -that is, the objection itself and the attachments thereto -must be submitted in the language of the respective appellate court. In Switzerland, for instance, this would be one of the four official languages: German, French, Italian and in some rare cases Romansh. 32 Given that the FSC usually acts as the sole appellate court for arbitral matters, an exception applies with regard to submitted attachments in a foreign language, which need not be translated if none of the parties objects. 33 However, the objection itself must be submitted in an official Swiss language as chosen by the parties and the FSC's final decision will be rendered in the same language. 34 In the proposed revisions to the IPLA CH, which governs international arbitral proceedings in Switzerland, the Federal Council has addressed this obstacle and intends to allow parties to submit not only the attachments but all legal submissions in English to the FSC. While supporters of the proposal (primarily Swiss law firms and several professors) 39 have emphasised that it should serve to promote Switzerland as a forum for arbitration, three core issues have been raised by the FSC, which are discussed below.

b) Constitutional Concerns
First, in the opening paragraph of its report on the IPLA CH's revision, the FSC flatly rejected the possibility of accepting legal submissions in English. 40 It argued that -besides contradicting its own jurisprudence, as previously mentioned 41the Swiss Constitution (Const CH) clearly states that Switzerland has four official languages. 42 Therefore, Swiss citizens have not only a right but also a duty to use one of these languages when communicating with Swiss authoritieswhich is even more so the case in relation to the FSC, Switzerland's highest judicial authority. 43  Indeed, English as the language of appellate proceedings before the FSC in arbitral matters would be problematic only if the filing of legal submissions in English were mandatory. However, this is clearly not the case, since Art. 77(2 bis ) FSCA CH is formulated as an optional provision. This is confirmed by the fact that arbitration -perhaps as no other field of lawis strongly dominated by the will of the parties. In most arbitrations, apart from investment or sports arbitration, the parties enter into an arbitration agreement based solely on their free will and without coercion. To allow legal submissions to be filed in English in a field of law where everything stands and falls on the will of the parties would facilitate the proceedings, rather than the opposite. It is thus clear that the proposed amendment only concerns a special field of law and a specific legal relationship -that is, the relationship between the parties of the arbitration.
For this reason, one might ask whether Art. 77(2 bis ) FSCA CH could be coordinated with the draft of Art. 129(2) CPC CH (see supra II.2) as follows: If the parties so request, English may also be used as the language of the proceedings.
Instead of merely allowing legal submissions to be filed in English, this would make clear that English is the governing language for the full proceedings, including the final decision. As public hearings at the FSC are very rare, and correspondence is effected exclusively in writing, this should pose no further problems.

c) Translation Difficulties
Second, the FSC questioned its ability to handle English cases in general. 50 It not only doubted the English skills of its chancellery but also envisaged difficulties with legal terms and concepts if a court clerk had to copy English passages from the parties' legal submissions when drafting the decision in one of the official languages. In the same vein, Mabillard rightly points out that translations of legal texts are «not purely linguistic translations». 51 For instance, if a party mentions «estoppel» in a statement of claim drafted in English, this could mean estoppel under US or English common law; but a German or Swiss lawyer might interpret it under the Latin proverb venire contra factum proprium -that is, no one may set himself in contradiction to his own previous conduct. 52 Admittedly, difficulties in translating foreign legal concepts can pose a significant challenge. However, it is the parties' responsibility to explain the meaning of foreign legal concepts clearly. Moreover, there is nothing to prevent the FSC from explaining how it understands such concepts when presented by one of the parties. jections themselves and then instruct a Swiss lawyer to submit them. As Swiss law is often chosen as the substantive law, it is likely that only Swiss lawyers accustomed to its provisions would dare to challenge arbitral awards before the FSC. This also applies to procedure: that is, how to file the objection with the FSC 62 and on what grounds an arbitral award may be set aside. 63 The FSC's concerns in this regard would thus appear unjustified -at least (insofar as may be estimated) at this time.

e) Cantonal Court Assistance
Finally, allowing litigation in English before the FSC will not necessarily affect the federal level only. In this regard, one should consider the provision of court assistance to arbitral tribunals by the socalled juge d'appui -that is, the respective judge who renders the assistance. This might relate to the appointment, challenge, removal or replacement of arbitrators; the order of interim measures; or the taking of evidence, among other things. 64 It is expected that such proceedings will gain increasing importance, especially with regards to the taking of evidence. In the age of big data, when requests are made for whole categories of documents in the form of emails, e-databases and chat histories, proceedings before the juge d'appui will become more crucial than ever. Such proceedings fall within the competence of the cantons. 65 In this regard, the proposed revisions to the CPC CH aim to provide a basis for the cantons to amend their laws to allow for the use of English in proceedings of the juge d'appui (see supra III.2). If they refuse to do so, both the provisions governing domestic arbitration (Arts. 353 et seqq. CPC CH) and international arbitration (Arts. 176 et seqq. IPLA CH) would have to be amended as previously suggested regarding Art. 77(2 bis ) FSCA CH (see supra III.2 and 3.b) to allow for the use of English, at least in arbitral matters.

IV. Conclusion
This contribution has shown that the use of English as a language of proceedings in commercial disputes has become increasingly popular in business hubs around the world (see supra II).
In Switzerland, however, the discussion has just begun, at both the federal and cantonal levels (see supra II and III). It has been demonstrated that -at least in appellate proceedings in arbitral matters before the FSC -the use of English as the language of proceedings does not pose problems at the constitutional level; nor are the hurdles too high for its practical realisation.
As the revisions to both the IPLA CH and the CPC CH aim to facilitate the use of English, it seems appropriate to coordinate these efforts as suggested. By doing so, unnecessary discrepancies should be ____________________________ 65 Art. 3 CPC CH: The organisation of the courts and the conciliation is in the competence of the cantons unless the law provides otherwise; see also Art. 70(2) Const CH. avoided, and English could be used throughout the full proceedings, and not merely when filing legal submissions. However, at the moment it seems unclear if the provisions suggesting the use of English before Swiss courts will pass the parliamentary debates, both in context of the revision of the IPLA CH and the CPC CH.
Nonetheless, it may be expected that the use of English before Swiss courts should enhance the attractiveness of Switzerland as a forum for the resolution of international disputes. However, this will apply only if the full proceedings -from first legal submissions to the final decisioncan be conducted in English. The Netherlands Commercial Court was an early mover in this regard, and it is hoped that Swiss courts will follow suit.