A few weeks ago I was reminded of Swissblawg, the German-language blog dealing with—you guessed it—Swiss law, when it linked to some of my stuff. Because next month I’ll be giving my series of Geneva seminars [link no longer available], my thoughts are turning to things Swiss, so I figured it would be interesting to have a chat with a member of the Swissblawg team, David Vasella, and his colleague Nicola Benz. David is an associate, and Nicola a partner, at Froriep Renggli, a leading Swiss law firm.
KAA: Hi, Nicola and David. What kind of transactional work do you do?
DV: Nicola and I are involved mostly with IP and technology-related transactions, including sale and, increasingly, licensing of intellectual property, and with issues relating to the use and commercial exploitation of data.
KAA: To what extent do you work with contracts in English? And when you do, are you generally the drafter or the reviewer, or does it vary from transaction to transaction?
DV: A majority of our work is in English. Froriep Renggli has a very international focus, and we are frequently retained as counsel by foreign law firms and companies outside of Switzerland. Our role depends on the transaction. We draft, but also review and comment, and are also involved in litigation.
KAA: Are the contracts you work on only in English when one of the parties is from an English-speaking country, or is English also used as a lingua franca? Do you think your experience in that regard is representative?
DV: English is commonly used as the language of choice between parties of different languages, to some extent also within Switzerland when parties from Zurich interact with parties from Geneva.
NB: This is especially so in the technology field, where English is the lingua franca on the technical side. It can be quite challenging to build a legal framework round that in another language.
KAA: What are the challenges facing non-native English speakers working with contracts in English?
DV: Challenges arise on two levels: The language itself can be challenging (should we use “he will” or “he shall” or “he must”?). On another and potentially even more important level, words convey concepts, and foreign words may convey foreign concepts, which might be imported in English language contracts even if they are subject to Swiss law. Expressions such as “warranty” or “indemnity” should not be used carelessly in such contracts, and there is no common understanding as to the meaning of various standards of “efforts” (best efforts, reasonable efforts, all efforts), at least not under Swiss law.
KAA: Don’t get me started on “efforts”! Using anything other than “reasonable efforts” is asking for trouble. And it’s best to avoid unclear terms of art (in other words, jargon), with “warranty” being a good example. But more generally, David, I know that you’re familiar with my blog and my book. Have you found my approach to contract language to be useful in your own drafting?
DV: Very much so. I find answers to questions that I can otherwise only get from Nicola, who is a native English speaker with a Scots law education. It also helps me understand how certain expressions used in contracts in English are meant and understood by native speakers and by lawyers trained in an English-speaking country. Also, your book and your blog are reassuring: they helped me to realize that although U.S. and U.K. contracts are generally longer and more involved that civil-law contracts, English-language contracts can in fact be clear and simple.
KAA: In this November 2006 post on the old AdamsDrafting blog I offered some thoughts on the differences between common-law and civil-law drafting. Aside from any obvious differences in substantive law, what do you think drafters used to working in common-law jurisdictions should bear in mind when drafting contracts governed by the laws of Switzerland or some other civil-law jurisdiction? And vice versa?
DV: Most importantly, common-law lawyers need to understand that civil law relies to a much greater extent on statutory law and codes, and that contracts can be and usually are much shorter and more concise because the underlying law will fill the gaps. Courts are usually quite good in applying this law in line with the contractual framework and the parties’ interests.
NB: Also, as David mentioned earlier, concepts familiar to common lawyers may not have the same meaning in a civil-law jurisdiction. You think you know what you are saying, but the other party or, at a later stage, a judge may have a different understanding.
KAA: Have you found that the distinction between civil-law contracts and UK/US-style contracts has become less clear-cut?
DV: Yes, because there is always the temptation to simply use English-language contracts as models, because they’re readily available and often very detailed, and also because in-house counsel tend to be familiar with this style of contract and to expect you to deliver something comparable.
KAA: David, I’d like to hear about your blogging: What topics does your blog cover? What prompted you to start blogging? What have you got out of it?
DV: I started blogging some four years ago, when I was preparing for the bar exam and realized that I found writing a more effective way to study than just reading. And for a while I worked as a web designer, so creating and maintaining a blog was a natural thing to do. Blogging helps us to follow and digest legal developments, and of course it helps us to market our work as lawyers. Currently, Swissblawg has two editors, Juana Vasella and myself, and two other authors. It has grown into the largest business-law blog in Switzerland, with over 1300 posts, close to 700 email subscribers, and additional readers through our RSS feed, Facebook and Twitter, and our website. We try to cover everything new and important in commercial law, including contracts, IP and IT, real estate, white-collar crime, litigation, banking, tax, and sports.
KAA: Do you have any plans for what you want to do with your blog?
DV: The blog doesn’t generate any revenue, as we of course don’t charge readers anything, and we don’t run ads. We maintain it in our spare time, and we’d like to keep it going as long as we can. But we would like to add to our team of authors.
KAA: Will it remain a German-language-only blog, or could you imagine adding posts in French, Italian, or even English, or adding a French or Italian author to your team?
DV: We might add certain posts in English, but as the majority of our blogging is about new court decisions that are in German, French, or Italian, blogging in English would not only require us to summarize, but also to translate, and for that we currently have no time. Blogging in French or Italian makes not too much sense for us, because French or Italian posts each would reach fewer readers than posts in English.
KAA: Do you have a sense whether Swiss lawyers are as interested in blogs as U.S. lawyers are?
DV: Blogging in Switzerland doesn’t reflect the degree of professionalism it has in the U.S. or in Germany. Both countries are much more developed in this respect, which probably can be explained by the rather small Swiss market. But the information overflow needs to be dealt with somehow, and blogs that quickly filter, digest, and redistribute news will become increasingly important.
KAA: David, Nicola, thank you!