English as an official language - the dams start to burst
At the beginning of this year, the Swiss Federal Government presented a legislative bill to revise certain aspects of international arbitration legislation in Switzerland. The majority of the proposed changes and amendments shall write into the law the more important court precedents rendered by the Swiss Federal Supreme Court over the last 30 years (in order to secure Switzerland's position as an international arbitration place), the Swiss Federal Government also proposes a real innovation: court briefs filed in challenging international arbitration awards before Switzerland's Federal Supreme Court on the basis of gross formal and / or substantive violations of law (e.g. the "ordre public") could be held in English.
"The Swiss Tax Assistance Act of 2013 allows foreign authorities to submit their requests for administrative legal assistance in English."
By this and w/o saying it explicitly, the Swiss Federal Government makes English as one of the official languages in Switzerland. The proposal should be welcomed in principle, although one or more constitutional lawyers may rightly complain that the official languages on the federal level - German, French, Italian and Romantsch - are exclusively set by the Switzerland's Federal Constitution.
A finely dosed constitutional break - not for the first time
The Swiss Federal Government's proposal is a fine dose of constitutional breach what may be acceptable from time to time. Already now, attachments to court briefs can be filed in foreign languages w/o translation in all legal proceedings before the Swiss Federal Court (so not only in the context of international arbitration proceedings), as long as the opposing party consented. A similar rule applies since quite some time to all non-judicial, federal administrative procedures.
"The relationship between the English official language in international organizations and the official languages in Switzerland remains unclear."
The Swiss Federal Tax Assistance Act in force since 2013 allows foreign authorities to submit their requests for administrative legal assistance in English. The Swiss Takeover Board was cautious in its wording when one of its ordinances introduced English as a mere working language in 2015 (instead of speaking of an official language). The same holds true for Switzerland's Competition Commission since 2015, whereby the Commission can agree on the use of the English procedural language (supplements may be submitted in English w/o conditions). Or, the Swiss Federal Institute of Technology in Zurich allows in its regs and regulations since quite some time English as a teaching language (and thereby bravely argues that teaching is not a public governmental act).
English as an official language in international organizations - international treaties are held in English
English as an official language is a particular challenge for Switzerland as a member of various international organizations, where English is one of the official languages (e.g. the United Nations or the European Council). In other words, the relationship between the English official language in international organizations and the four domestic official languages in Switzerland is - to say the least - unclear. The interconnection between hundreds of international treaties concluded by Switzerland with foreign countries in English needs clarification as well. These treaties rank in Switzerland as formal laws and are sometimes even considered to have constitutional character. While the three official languages German, French and Italian (the Romantsch is only a so-called partial official language) are equivalent in the interpretation of federal legislation, the English language of international treaties plays no role.
Pragmatic administration with lacking legal basis
As far as one can see, a study sponsored by the Nationalfonds of Switzerland addressed English as an official language in 2009 for the first time. Since then, some parliamentary initiatives have been launched in the Swiss Parliament which want to introduce English as a full or partial (eg for expats) official language. The websites of a good number of communities, including the Swiss Federal Government, are designed in English. Or, the Swiss Federal Government Confederation offers for quite some time English translations of selected federal legislative texts, whereby the English translation has no legal force. Similarly, the Swiss Federal Government operates a publicly accessible dictionary called Termdat, containing roughly 400'000 words in Switzerland's official languages and of course: in English.
"Whilst the three official languages German, French and Italian are equivalent in the interpretation of federal legislation, the English language e.g. in international treaties plays no role."
Canton of Aargau: English as official language since 2010
The Canton of Aargau, rather known as a stronghold for tradition and conservatism, provides since 2010 not only for German as the canton's official language, but also authorizes its governmental authorities and agencies to use English as an official language. This quite courageous constitutional step had been validated by the Swiss Confederation in 2011 w/o any longer discussions.
Whilst the Vice-President of the European Parliament, Alexander Graf Lambsdorff, demanded for the first time in 2014 that English become the administrative language and later on the official language in Germany, there is little to be heard from other European countries. Only The Netherlands introduced as per the beginning of 2017 a special commercial court consisting of three judges, where the procedural language is English. After all, a number of international, very successful countries such as Singapore, Hong Kong, India, Philippines, and Malta have English as their official language.
And a little bit of forward thinking ...
As mentioned, the constitution of the Canton of Aargau made a courageous step in 2010 when admitting English as an official language for its authorities and offices. One reason was to make the Canton of Aargau more attractive to its international expat community by giving it the opportunity to communicate with the local authorities in English. For the same reason, various municipalities in Switzerland, including the Swiss Confederation, operate their websites in whole or in part in English. Governmental concerns about a better integration play a role, even if in the longer run expats are expected to communicate with the authorities in an official language.
The Canton of Aargau should not remain the only canton in Switzerland in opting for the English as an official language, though a good number of issues remain unsolved for the time being, for instance the question as to whether cantonal authorities are allowed to conduct procedures dealing with federal or cantonal administrative law issues in the English language, as most of theses cases can be challenged before the federal authorities by way of appeal.
"The official English language is intended to help Switzerland position itself as an international center in the midst of Europe and the world."
For this reason alone, legislative action is required in order to amend the Swiss Federal Constitution as the official federal languages are a constitutional matter. Furthermore, the uncontrolled legislative growth of English as an official language, the unclear internal Swiss position of the English official language in international organizations and treaties, and finally the proliferation of the English official language without any legal basis, should be a convincing reason to undertake a prudent or comprehensive adaptation of the federal Swiss constitution and its laws. It does not take a prophet to forecast that this path will be particularly burdensome in Switzerland, with its diversity of official and national languages, as English will inevitably be perceived as a competitor in one or the other form.
Establishing English as an official language should also help Switzerland to continue to position itself as an international center in the midst of Europe and the world. Since 1989, the International Private Law Act of Switzerland offers to the international business world to elect Swiss courts as an exclusive judicial venue, provided that there is a choice of law in favor of Swiss law. The introduction, for example, of commercial courts handling cases in the English language by one or more business capitals in Switzerland, would be a consequent expansion of this offer.
"The introduction of English as official language will be burdensome in Switzerland with its variety of national and official languages."
Before deploring the non-feasibility of establishing English as an official language in Switzerland, potential decision makers should look into the experience that The Netherlands collect with their newly established commercial court (see above). It goes without saying that there is a considerable Swiss business community in Geneva, Basel or Zurich (amongst them business lawyers working in the international arbitration scene) being in full command of the English language (both orally and in writing) who can serve as state judges in the special commercial courts discussed. An isolated solution on the mere state (cantonal) level will, however, not work, as long as the Swiss Federal Supreme Court is not required to accept cases from the said commercial courts in English. A first step has now been taken by the proposed bill to update international arbitration in Switzerland.
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