“Language diversity increases legal uncertainty”

The first proceedings at the UPC are underway and one thing is striking: Much of what is currently being filed, written and negotiated is in the German language. Not only are plaintiffs filing their complaints in German, but the Munich local division has been the most frequented division in the court’s start-up phase.

The judges at the Munich division have already published several judgments – all of them in the finest German legalese. Put the headnotes into well-known translation tools and they quickly reach their limits. It is therefore not so easy for non-native speakers to understand the complexity of these judgments.

This is not yet critical, because for lawyers in international proceedings, translating decisions for clients and colleagues in other countries is part of their everyday business.

Fixed at second instance

But what about when cases advance to the second instance? In the first instance, the plaintiff has the opportunity to request the language upon filing the statement of claim, as do both parties within the preliminary objections. This requires a logical reason, such as the language of the patent. However, according to JUVE Patent research, it seems the language of second-instance proceedings is fixed.

In an appeal, the panel consists of judges with varying language skills. There is no provision for language proportionality. Who will translate a first-instance judgment for judges who are not confident in their German skills?

Is there a need for officially authorised translations of judgments in a multinational court system? For a new court to be successful, what it needs above all is legal certainty. This includes ensuring that all UPC judges understand the judgments down to the smallest detail.

Sensible approach to language

It is true that the founders of the UPC were unable to agree on a procedural language. They even wanted to make room for diversity. Upon launch, the German UPC divisions only approved English as the language of proceedings at the last minute. However, the local division in The Hague issued an order in mid-October allowing parties to switch the language of proceedings. This shows a sensible way forward. Parties also changed languages in other proceedings.

Now that the UPC has found its rhythm, pragmatism is called for when it comes to the language of proceedings. Even if some judges do not yet have as much practical work experience in other languages as patent attorneys and lawyers. Establishing English as a common procedural language at the UPC provides the opportunity to create a common European legal language in the patent scene, especially after Brexit. After all, good understanding is the basis for legal certainty at the UPC.