The Swiss Supreme Court may soon accept English as one of the languages it will draft in arbitrations, as part of the Swiss Parliament’s amendment to the Federal Supreme Court Act (FSCA). While the Federal Supreme Court has agreed upon the use of English in some cases historically, it required that the pleadings be filed in one of Switzerland’s official languages —French, German, Italian, or Romansh. The new legislation will lift the burden of translation costs for parties who wish to use English in their proceedings.
This change came as part of Swiss efforts for a revision on Chapter 12 of the Private International Law Act (PILA) on international arbitration, which the Swiss government drafted for public consultation in 2017. A decision that currently will only affect the supreme court, the amendment will allow counsels to minimize any risks of mistranslation as well as expedite the process of drafting memorials.
Even with the many benefits the move will provide, Parliament will have important considerations before fully accepting the bill. According to an analysis of the original 2017 bill by Sebastiano Nessi, a counsel with Swiss business law firm Schellenberg Wittmer, “The Swiss Supreme Court will continue to issue its decisions in one of Switzerland’s official languages. In other words, the parties (or one of them) will plead their case in English whereas the decision-maker will develop its reasoning in another language.”
He goes on to explain the possible implications of the new system, stating, “The Swiss Supreme Court may lose sight of some of the nuances developed by counsel in their pleadings.” Considering how the complexities of the English language already create conflict in the US, Swiss Parliament might develop a framework to deal with complications that may arise.
Despite some of the limitations of the bill, the decision will provide some insight into an internationalized approach to court proceedings. The court may consider further changes to the bill in coming months, but without a referendum placed by October 2020, it will pass and come into full effect in 2021.
