A new chance for a more personal language protection, thanks to the Chancery Division (High Court) in England

A new chance for a more personal language protection, thanks to the Chancery Division (High Court) in England Ghent, Isabelle Bambust - The courts are increasingly faced with international elements. It happens, for example, that a french Court must apply laws which are not French, or that the parties do not have French nationality, or, that the parties do not live in France.

When a party resides in another country, the communication of important documents from the judicial record is not simple at all. Think of the language of these documents. A Parisian French-language document might encounter the official Dutch language of the Netherlands where the recipient of the document resides, or the own language of the recipient who did not necessarily master the Dutch language.



When communication takes place between two European countries, this language problem is solved by the European regulation no 1393/2007. You should read "almost resolved" instead. Indeed, the rule contains two alternatives to avoid that the recipient opposes the use of languages. Either the document is written or accompanied by a translation in an official language of the place where the communication is carried out. Or the document is written or accompanied by a translation in a language understood by the recipient.

This has the consequence that the recipient can not oppose if the document is written or accompanied by a translation in the official language, although he does not understand this language. As Thouret expressed: « (…) [T]he rule does not absolutely ensure the right to obtain a translation in a language understood by the recipient. '1 The author gives the following example: "an Italian citizen resides in Germany and receives a french divorce decree. The judicial documents are accompanied by a German translation. It contains neither the french nor German, the recipient may not, however, require a translation of the document in Italian. "

What seems serious enough, it is that the European Union is well aware of this abstract approach. She accepts that there are situations in which the beneficiary has the right to refuse to accept a document even though he understands its content. And, conversely, situations in which he does not have this right while he did not understand a word.

Thus, the English decision of the High Court of Justice on 23 October 2015, is extremely interesting. A procedure takes place in England and one of the parties, Ms. Arkhangelskaya, resides in France. He must be given expert reports (written in English) in France. The English knowledge of Mrs. Arkhangelskaya is very limited. She is Russian-speaking.

His pro bono (voluntary and unpaid) representative is Mr Pavel Stroilov. In the decision, Mr Pavel Stroilov is considered to be one (what is called in English law) "McKenzie friend". A "McKenzie friend" is someone who does not represent the party, but which assists in trial. Mr Pavel Stroilov managed to criticize the linguistic duality in the European solution (see page 15 - recital 61). He explains that, technically, the supremacy of the official language remains possible (even if the recipient doesn't understand), but that this balance is not defensible from the principle of a fair trial.

The judge - Lord Hildyard - follows the position of Mr Stroilov and therefore requires that reports are translated into Russian language (see page 17 - recital 65). What about the beautiful next thought: « Whilst I am not convinced that to deny them [the Defendants] such opportunities would of itself result in a breach of any enforceable right, it seems to me that the balance plainly favours eliminating this potential source of apparent potential unfairness. "Unfortunately - and this is a little downside to my own personal theory - the judge takes into account that the party was not represented by a proper lawyer. So, if Mrs Arkhangelskaya had a 'real' lawyer, the judge would have perhaps decided otherwise...


Any observation of translators, interpreters and other readers is welcome.


Isabelle Bambust (Isabelle.Bambust@UGent.be) is assistant-researcher at the Faculty of law of the University of Ghent. From 2012, she conducts research on language protection in the case of cross-border communication of court documents.


A new chance for a more personal language protection, thanks to the Chancery Division (High Court) in England - see Bank St Petersburg PJSC, Alexander Savelyev v. Vitaly Arkhangelsky, Julia Arkhangelskaya v. Oslo Marine Group Ports LLC 23 October 2015, High Court of Justice (England), Chancery Division, HC-2012-000165

The decision of the High Court of Justice in PDF

 

(1) S. THOURET, "Signification and notification of legal proceedings. - Divorce Symposium - Aspects of private international law", Family law 2008, no. 11, 23.

 

Whole article here in PDF

 

 


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