The Use of English Before Swiss Courts: The
Lorenz Raess *
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.
Lorenz Raess, The Use of English Before Swiss Courts: The
Current Debate, in: sui-generis 2020, S. 165
* Attorney-at-law at Eversheds Sutherland (CH), firstname.lastname@example.org. The author recently defended his dissertation entitled «Court Assistance in the Taking of Evidence in International Arbitration» (forthcoming 2020). He would like to thank Prof. Martin Beyeler, Prof. Ramon Mabillard,
Dr. iur. Mark Schweizer and Joëlle Raess for their helpful comments on this article.
Beyond doubt, English is one of the languages that are most widely used by
non-native speakers around the world, and it still beats every other
language by the total number of speakers.
Often described as a lingua franca,
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 English-speaking 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.
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 12th chapter of the
Federal Act on International Private Law
(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 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.
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
(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
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 required, to put the
present topic in an international context before focusing on the situation
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.
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.
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.
In Germany, although the official language is German,
it has been possible since 2010 to conduct proceedings in English before
the Cologne Higher Regional Court
(Oberlandesgericht) and associated regional courts in Cologne,
Bonn and Aachen. Since 2018, this has also been an option at the regional
courts of Frankfurt am Main and Hamburg, where specialised courts
allow hearings in English upon the request of the parties. However, all
formal submissions must be filed in German, and both the judgment and all
procedural rulings and transcripts are rendered in German.
In 2018 France followed suit: Both the Paris Commercial Court (Tribunal de commerce de Paris) and the Paris Court of Appeal (Paris Cour d'appel) changed their procedural rules to allow
hearings and legal submissions in English.
Here again, as the French Constitution
states that the official language is French, the final decision is drafted
in French. In contrast to the German approach, however, the final decision
is accompanied by a sworn English translation, to facilitate its
Another difference is that as the Paris Court of Appeal acts as the
appellate court for decisions of the Paris Commercial Court,
English may thus be used in two instances.
More recently, the Netherlands went one step further. On 1 January 2019, it
established the Netherlands Commercial Court as a
separate chamber of the Regional Court of Amsterdam, whose decisions may be
challenged before the Netherlands Commercial Court of Appeal.
Unlike in Germany and France, English is the standard language of the
proceedings, from submission of claims to final decision.
III. Current Debate
1. Federal Patent Court
By contrast, Switzerland has been somewhat hesitant to take similar steps.
At the federal level, it is only at the Federal Patent Court (FPC) that
English is the standard language of proceedings. Art. 36 of the Patent Court Act,
which entered into force in 2012, states:
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. Since its inauguration, the
number of cases conducted in English has continually increased; and since
2016, about 30% of all ordinary proceedings and 20% of summary proceedings
have been held in English.
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.
2. 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
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.
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.
During the subsequent consultation process, the Zurich Bar Association
proposed the establishment of a legal basis, at both federal
level, for the creation of specialised commercial courts with English as
the language of the proceedings. With the publication of its dispatch on 26
February 2020, the Federal Council followed these suggestions. Accordingly,
the cantons may add separate chambers to their commercial courts, to which
parties may resort directly in order to resolve international commercial
It is also intended to introduce a second section to Art. 129 CPC CH stating:
Cantonal law may provide that if the parties so request, another
national language or English may be used.
In addition to this new possibility at the cantonal level, a draft of
Art. 42(1bis) of the Federal Supreme Court Act
(FSCA CH) reads as follows:
If the proceeding of the lower court has been conducted in English,
legal submission can be filed in this language.
These two amendments are intended to promote Switzerland as a forum for the
resolution of international disputes by allowing the use of English
throughout the cantonal and potential subsequent (federal) appellate
proceedings. The cantons are not obliged to avail of this new 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 English - that 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).
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.
Unsurprisingly, in international arbitration, English is the predominant
language of the proceedings. In 2018, for instance, it was used in over 80%
of all recorded arbitrations under the International Chamber of Commerce
and Swiss Rules.
As long as the parties to the arbitration 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.
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
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.
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. Since this
concerns proceedings before the FSC, the FSCA CH would also have to be
Because Art. 77 FSCA CH governs
objections against both domestic and international arbitral awards, the
amendment would also apply to domestic arbitration. At the time of writing
(March 2020), the Swiss Parliament is debating a proposed new Art. 77(2bis) FSCA CH, which reads
Legal submissions may be drafted in English. At the request and expense of
a party, the Federal Supreme Court draws up an authenticated English
translation of the fully executed decision which will be enclosed to the
notice of the decision.
According to the Federal Council's rather brief reasoning, the first phrase
aims to reduce the parties' translation burden by allowing for the use of
English as the standard language in all arbitral proceedings in
Switzerland, including appellate proceedings before the FSC.
The National Council added the second phrase during parliamentary debates
on 19 December 2019.
Unsurprisingly, Art. 77(2bis) FSCA CH received
significant criticism very early in the consultation process, and there
appears to be little consensus between arbitration practitioners and the
While supporters of the proposal (primarily Swiss law firms and several
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
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.
It argued that - besides contradicting its own jurisprudence, as previously
- the Swiss Constitution (Const
CH) clearly states that Switzerland has four official languages.
Therefore, Swiss citizens have not only a right but also a duty to
use one of these languages when communicating with Swiss authorities -
which is even more so the case in relation to the FSC, Switzerland's
highest judicial authority.
For this reason, according to the FSC, in order to uphold the so-called
«peace of languages» in Switzerland, no English submissions
should be allowed, especially given the negligible interest of the parties
to the arbitration in reducing their translation costs.
It is true that the introduction of a new official language utilising a
federal act would indeed represent a circumvention of the Const CH.
However, it is also true that English is already de facto an
essential language in certain areas of law. In addition, English is either
one of several binding languages or even the sole binding language in
several international treaties. This does not seem to be at odds with Art. 70 Const CH in certain areas
of law and for special legal relationships. For instance, at the Swiss
Federal Institute of Technology in Zurich, the language of teaching and
learning is English, in addition to the three main official languages.
Likewise, the standard language in radio-communications and air traffic is
Legal authors such as Belser/Waldmann, Biaggini and Kägi-Diener
therefore argue that as long as citizens are not forced to use an
unofficial language, exceptions such as these do not seem to be in conflict
with Art. 70 Const CH.
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(2bis) FSCA CH
is formulated as an optional provision.
This is confirmed by the fact that arbitration - perhaps as no other field
of law - is 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(2bis) 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
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.
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
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.
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. Why not, for instance, speak of a
«Swiss estoppel» as understood by the FSC? Also, as the draft Art. 77(2bis) FSCA CH sets out, an
English translation is only needed if one of the parties demands it. The
court clerk may thus continue to draft decisions in one of the official
languages, and only needs to provide a translation when requested. That
said, particularly in international arbitration, it can be expected that
parties will regularly avail of this possibility, to assist with
recognition and enforcement of the FSC's decision in a foreign country.
From a practical point of view, the fact that federal acts such as the CPC CH are increasingly translated
into English should substantially facilitate the translation process.
More specific to arbitration, according to the Federal Chancellery, English
translations of the FSCA CH and
the IPLA CH will soon be
published. Moreover, the translation service of the Federal Chancellery
could be very useful in this regard; as could its terminology database
which is being updated continuously and ensures that English terms are used
consistently by the Swiss government. A more creative solution could also
be appropriate: assistance from the Swiss Institute of Comparative Law,
which is also based at the FSC's headquarters in Lausanne. This institute
is home to a wide range of experts on many different legal systems,
and the Federal Council is authorised to entrust it with further tasks,
such as the translation of decisions.
d) Workload at the FSC versus
Unemployed Swiss Lawyers?
Third, the FSC stated that as a result of the proposed amendment, the
reduced translation costs of the parties could result in even more
objections in civil matters arising from arbitral proceedings.
It also fears that in future proceedings, foreign law firms will be
instructed to draft legal submissions, and as a consequence, Swiss lawyers
will lose important mandates.
According to the latest available statistics, as per 2017, the FSC handles
between 30 and 40 challenges to international arbitral awards and between
10 and 15 challenges to domestic arbitral awards every year.
Insofar as may be estimated at this point, the number of legal submissions
in English should not increase dramatically just because this option
becomes available. One might argue that under current law, as German,
French and Italian are official Swiss languages, one could expect lawyers
from Germany, Austria, France and Italy to be eager to draft objections
themselves before they are handed in by their Swiss colleagues.
However, this is clearly not the case.
Swiss lawyers thus should not worry that their foreign colleagues will
encroach on their field of expertise. The chance of successfully
challenging an arbitral award remains at around just 7% for international
awards and around 20% for domestic awards.
It is therefore unlikely that foreign law firms would draft objections
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
and on what grounds an arbitral award may be set aside.
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 so-called 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.
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
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.
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(2bis) FSCA CH (see supra III.2 and 3.b) to allow for the use of English, at least
in arbitral matters.
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 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 decision - can
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.
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.
A «lingua franca» may be defined as «any of
various languages used as common or commercial tongues among
peoples of diverse speech»; see the
Dorothee Ruckteschler/Tanja Stooss, International Commercial
Courts: A Superior Alternative to Arbitration? Journal of International Arbitration 4/2019, 434.
Federal Act of 18 December 1987 on International Private Law, as
amended on 1 January 2019 (IPLA CH; SR 291 [classified
compilation of Swiss law]).
Swiss Civil Procedure Code of 19 December 2008, as amended on 1
January 2020 (CPC CH; SR 272).
e.g. EU Regulation 1215/2012 of
11 December 2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters; and EU Regulation 1206/2001 of
28 May 2001 on cooperation between the courts of the Member States
in the taking of evidence in civil or commercial matters.
Ruckteschler/Stoos, 437 (fn. 3); Giesela Rühl, Auf dem Weg zu
einem europäischen Handelsgericht? Zum Wettbewerb der
Justizstandorte in Zeiten des Brexit, Juristenzeitung 22/2018,
Protocol of the Paris Commercial Court
of 7 February 2017; Alexandre Biard, International Commercial
Courts in France: Innovation without Revolution?, Erasmus Law
Review 2019, 29; Rühl (fn. 11), 1077.
Ibid., Section 2.1; Henke (fn. 16), 275; see also the first judgments of the
Netherland Commercial Court.
Federal Act on the Federal Patent Court of 20 March 2009, as
amended on 1 August 2018 (Patent Court Act; SR 173.41).
Julia Gschwend, in: Basler Kommentar Zivilprozessordnung (ZPO),
2017, n. 4 of Art. 129.
49 et seqq.; translated by the author.
Federal Supreme Court Act of 17 June 2005, as amended on 1 January
2019 (FSCA CH; SR 173.110)
82 et seq.; translated by the author.
In the period from 2004-2018, English was the language of the
proceedings in 70% of all cases; see SCAI Arbitration statistics of 2018; see also the latest ICC Dispute Resolution 2018
Statistics, according to which nearly 80% of all awards have been
rendered in English, 15.
the Opinion of Organisations.
For example, the Swiss Arbitration Association (28, n. 107 et
seqq.); a group of Swiss law firms (123, n. 59 et seqq.); Swiss
Holdings (202); University of Geneva (232) and the University of
Lucerne (269, n. 81 et seqq.) are all strongly in favour of the
fn. 31 and fn. 32 supra.
Opinion of Organisations, 32, with reference to Art. 188(1) Const CH; Eva Maria Belser/Bernhard Waldmann, in: Basler Kommentar
Bundesverfassung, 2015, n. 15 of Art. 70 (cited:
BSK-Belser/Waldmann); see also Regula Kägi-Diener,
in: Bundesverfassung St. Galler Kommentar, 3rd ed. 2014,
n. 17 of Art. 70 (cited: SGK-Kägi-Diener).
BSK-Belser/Waldmann (fn. 43), n. 23 of Art. 70;
SGK-Kägi-Diener (fn. 43), n. 18 of Art. 70.
the double taxation agreement between Switzerland and the US, SR 0.672.933.61; or the
investment treaty between Switzerland and Egypt, SR 0.975.232.1. For an
extensive overview, see Max Baumann, Die Amtssprachen des
Bundes sind Deutsch, Französisch, Italienisch und Englisch,
SJZ 101/2005, 36 et seqq.
Federal Act on the Federal Institutes of Technology of 4 October
1991, as amended on 1 May 2017 (ETH Act; SR 414.110).
BSK-Belser/Waldmann (fn. 43), n. 23 et seq. of Art. 70;
SGK-Kägi-Diener (fn. 43), n. 18 of Art. 70; Givoanni Biaggini,
in: BV Kommentar, Bundesverfassung der Schweizerischen
Eidgenossenschaft, Orell Füssli Kommentar (OFK), 2nd ed. 2017, n. 3 of Art. 70.
Translated by the author; Ramon Mabillard, Attraktivität des
Schiedsplatzes «Schweiz», SZZP 5/2019, 473.
.; see also Gary B. Born, International Commercial
Arbitration, 2nd ed. 2014, 1472 et seqq.
Opinion of Organisations, FSC (37) and University of Lucerne (270); Marco Stacher/Christian
Oetiker, Kernpunkte der Revision des 12. Kapitels des IPRG, Swiss
Review of International and European Law 2/2018, 222.
Felix Dasser/Piotr Wójtowicz, Challenges of Swiss Arbitral
Awards, Updated Statistical Data as of 2017, ASA Bulletin 2/2018,
278 and 289.
Dasser/Wójtowicz (fn. 59), 280 and 289.