When a contract is concluded by an Italian and a Frenchman, although they have a similar culture and a common legal tradition, the contract will often be drafted in English. Can one imagine any other language for agreements between Koreans and Germans, or between Russians and Argentinians?

It is undeniable that English has become not only the lingua franca of international trade, but also the main medium of communication. People with different mother tongues use it to understand one another. This feature is too widespread to have passed unnoticed. The only group of countries that seems in some sort to have avoided this trend is the Spanish-speaking states in their dealings with one another.

However, the origin of this fact is of little importance. Just as, until the First World War, nobody called into question the universality of French -the universally acknowledged language of international relations -today nobody can deny the role played by English -but what an English!

Those whose mother tongue is English have indeed inherited a vast and beautiful culture; they are, however, but a drop of water in a sea of peoples who speak, or believe, they are speaking English. Attending negotiations in "English" between Koreans and French, for instance, can be a source of amusement or confusion, depending on the listener's frame of mind.

Statistics confirm this pre-eminence of the English language in international relations. In 1994, 64.8 per cent of contracts submitted to ICC arbitration were drafted in English and 65.6 per cent in 1995. It is interesting to note that during the same years, the second most common language was French, with 21.3 per cent and 17.8 per cent respectively, and the third was German with 7.6 per cent and 7 .5 per cent followed by Spanish and Italian. Certain contracts were concluded in several languages, such as English/Arabic, Italian/French, German / Slovakian, Spanish/French, French/Romanian, Japanese/English, English/Russian, French/Russian, etc. We shall consider further on in this article how much significance should be attributed to this feature.

As we shall see, the language of the contract plays an important role in the choice of the language of the arbitration - too important a role, in our view. Hence, when the parties have not specified the language, either in an arbitration clause or in an agreement to arbitrate, the arbitrator has the task of deciding this issue. The problem has been considerably underestimated in the past; indeed, it has barely been mentioned, and the world of arbitration has only recently realised that language is the expression of a culture, and that, as the law of a state is itself clearly the product of that state's culture, the language is an essential key to understanding the law applicable to the substantive issues of the case.

An identical feature can be observed in national laws.

In France, in August 1539, an Ordinance "on the fact of justice, " known as the Villers-Cotterêts Ordinance, outlawed the use of Latin. We cannot resist the pleasure of citing Article 111 of that law:

"And with regard to such matters as have often arisen as to the intelligence of Latin words contained in the said judgments, we decree that henceforth all judgments, together with all other procedures , whether of our sovereign courts and other subordinate and inferior courts, or of registers, inquests, contracts, commissions, sentences, wills and other deeds and writs of justice of any kind, or which depend thereon, are to be pronounced , recorded and issued to the parties in the French mother tongue and not otherwise."

This text has never been repealed. Questioning whether it is possible to plead before a French court in a language other than French seems unthink­ able. Yet, it was not until a judgment rendered by the Conseil d' Etat on 22 November 1985,¹ following an appeal lodged against a decision of the Rennes Administrative Court, that the highest administrative court ruled that a petition that is not drafted in French is not admissible. This has long (1859) been the position of the Cour de Cassation.

In England, as early as 1362, the "Statute of Pleadings" established English as the only language of the courts.

In the United States, it was not until 1996 that the House of Representatives proclaimed that English is the official language of the government of the United States.² The authors of the bill entitled "English Empowerment Act of 1996" presented it as a defence of American society against multi­ cultural assaults: "Part of becoming American involves English," stated the speaker of the House, and he went on to assert, "It is vital historically to assert and establish that English is the common language at the heart of our civilization."

For language is not only a means of expression. It is a medium of communication of a culture. There is a profound difference between the national language and a "language of communication" or "common working language," a language which is in some sorts a-national. As Renan said, the Nation is a community of aspirations. Language is an essential instrument of that community. Returning to the example cited above of negotiations in English between Korean and French participants, apart from a few rare exceptions, the words they use will have no cultural back-up. Everything that makes for complicity of expression: allusion, wordplay, reference to a historical event, to a famous author, a song, a picture; everything which, in a word, unifies; all this is absent from the language of communication, which in fact is merely functional.

Hence we find that misunderstanding -"talking at cross-purposes" -is inherent in the use of a common working language. Naturally, the problem would be exactly the same today, whatever the language used. The time is past when French was the language of diplomacy and the lingua franca of the wealthy classes, of high functionaries and royal courts. French was a horizontal language, in other words a language used by the ruling classes independently of their territory and their nationality. It is likely that, in France in those days, French was the politically correct language of the ruling classes and, for the ordinary population -with the exception of the Paris and Pays de Loire regions - it was at best a language of communication, with each region having its own language, dialect or patois. When Christine of Sweden conversed with Descartes or Frederick of Prussia with Voltaire, French was not a language of communication; it was a language of common culture, and this applied equally to the Court of the Czar, of the Emperor of Austria or of any other European sovereign of the last century or of the early twentieth century. Metternich and Talleyrand spoke the same language. Our intention here is not to compare a so-called "language of culture" to a so-called "commercial language." It is simply to show the problems caused, in international arbitration in particular, by the use of a language whose culture one is unfamiliar with.

I - Rules of permanent arbitration institutions

By the expression "language of the arbitration," we mean the official language(s) of the procedure, in other words the language(s) used by the tribunal and the parties for communicating orally and in writing.

So far as the determination of the procedural language is concerned, arbitral institutions can be divided into four categories. For some, the language of the contract is a mere presumption, for others a priority indication. Certain centres stipulate directly or indirectly that their national language must be used, while in others the arbitrator has total freedom. Lastly, some rules allow more than one language to be used.

However, the approach of the majority of permanent arbitration institutions is to give priority to the language of the contract.

A. The language of the contract as a presumption

The WIPO (Article 40(a)) and the AAA (International Commercial Arbitration, Article 14) Rules lay down a presumption in favour of the language of the contract, and it is up to the parties to over­ turn this presumption if they so wish. These articles provide respectively:

"Unless otherwise agreed by the parties, the language of the arbitration shall be the language of the Arbitration Agreement, subject to the power of the Tribunal to determine otherwise, having regard to any observations of the parties and the circumstances of the arbitration.

"If the parties have not agreed otherwise, the language(s) of the arbitration shall be that of the documents containing the arbitration agreement, subject to the power of the tribunal to determine otherwise based upon the contentions of the parties and the circumstances of the arbitration. The tribunal may order that any documents delivered in another language shall be accompanied by a translation into such language or languages."

The LCIA Rules follow the same line. Article 14 of the new Rules restates the principle of the former Article 8, which stipulated that:

"(I) The language( s) of the arbitration shall be that of the document(s) containing the arbitration agreement, unless the parties have agreed otherwise."

Here it should be noted that the words "shall be" are more than a mere indication. The new text makes the parties ' choice take second place and gives precedence to the language of the contract, adding that a defaulting party may not complain if the procedure is conducted in English. The official commentators of what was then the draft text of the new Rules (LCIA Newsletter, October 1996) specify that the aim of this article is to neutralise any delaying tactics by a party who, having signed a contract in a language used in international relations, subsequently maintains that its fundamental rights would be infringed if it could not present its defence in its own language.

B. Priority to the language of the contract

The version of Article 15.3 of the ICC Rules that is currently in force provides as follows:

"The arbitrator shall determine the language or languages of the arbitration, due regard being paid to all the relevant circumstances and in particular to the language of the contract."

Article 22 of the Rules of the Zurich Chamber of Commerce adopts an identical principle:

"The arbitral tribunal shall determine the language or languages to be used for communications in writing and for the hearings ... As a general rule, the procedure shall be conducted with the parties in the language of the arbitration agreement ..."

A significant change in the new ICC Rules which are to come into force on 1 January 1998 should be noted. Article 16 of the new Rules deals with the language of the arbitration in the following terms:

"In the absence of an agreement by the parties, the Arbitral Tribunal shall determine the language or languages of the arbitration, due regard being given to all relevant circumstances, including the language of the contract."

Thus it will be noted that the new article differs considerably from the present rule. The language of the contract loses its relative importance. It is no longer the language of the contract in particular which leads to the language of the arbitration; instead that language is merely one of the various elements to be taken into consideration. In other words, the language of the contract is an important indication given to the arbitrator but -as we read it -it is no longer the priority indication.

C. Priority to the territorial language

Some rules give priority to the territorial language of the Centre unless the parties agree to the contrary. This is the case particularly with the Rules of the China International Economic and Trade Arbitration Commission, ³ Article 75, Paragraph 1 which specifies as follows:

"The Chinese language is the official language of the Arbitration Commission. If the parties have agreed otherwise, their agreement shall prevail. "

A solution along the same lines has been adopted by the Arbitration Rules of the Court of Arbitration of the Chamber of Commerce and Industry of the Russian Federation,⁴ Article 10, which stipulates:

"The hearing shall be conducted in the Russian language. With the consent of the parties, the ICAC may conduct the hearing in another language. If a party does not know the language in which the hearing is conducted, the ICAC shall, at the party's request and expense, provide him with the services of an interpreter."

Priority is given to the Russian language, but the parties seem to be able to ask the arbitration institution for the proceedings to be held in another language. However, it is not clear from the rules whether the centre is obliged to comply with the parties' wishes.

However, there is an important difference between the Chinese and Russian rules. In the former case, it seems that Article 75 enables the use of several languages, whereas in Russia the text cited seems to allow one language only.

Other more restrictive rules contain provisions worded in such a way as to appear on the face of them to be fairly neutral, but which result in the national language being imposed. This is particularly the case with the Rules of the Court of Arbitration "attached" to the Hungarian Chamber of Commerce⁵ Article 8(2) of which stipulates:

"If the parties fail to determine the language of the proceedings, the arbitral tribunal shall do so, taking into consideration all relevant factors in respect of the specific case, especially the language of the agreement entered into by the parties and the language of the correspondence."

One might think from this text that the language of the contract and of the correspondence must be taken into consideration as a priority in the classic fashion. But all this is substantially modified by sub-paragraphs 3 and 5 of the same Article 8:

"(3) If the foreign party (parties) is (are) represented by a Hungarian attorney or a counsel (also), the proceedings shall be conducted in Hungarian (...).

(5) If the jurisdiction of the Arbitration Court is based on an international agreement, the language of the proceedings shall be Hungarian."

These articles hence lead to Hungarian being imposed if only one of the foreign party's counsel is Hungarian, which is quite an original solution. The meaning of paragraph 5 above is not entirely clear and, in any case, can be disregarded. ⁶

It is possible to take the view that Article 8.3 is also to a certain extent a survival of the "COMECON spirit," and that the Hungarians will quite naturally have wished to ensure that their language would be used when confronted by other countries in the Soviet bloc. One can presume that such anomalies will disappear in the near future, although there is as yet no indication in this connection.

D. Freedom of choice

A fourth set of rules contains few or no provisions regarding the criteria of choice of language, leaving total discretion to the arbitrator.

This is the case of arbitration by the Stockholm Chamber of Commerce, Article 17:

"Unless the parties have agreed on the language or languages to be used in the proceedings, the arbitral tribunal shall make a determination in such respect."

Similarly, Article 17.1 of the UNCITRAL Rules states:

"(…) the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings."

Article 22.1 of the ICSID Rules of Arbitration opens the door to a solution which seems excellent:

"The parties may agree on the use of one or two languages to be used in the proceeding. (...) If the parties do not agree on any such procedural language, each of them may select one of the official languages ( i.e. English, French or Spanish) for this purpose. "

Hence it will be noted that, irrespective of the language of the document on which the dispute is based, the parties, either agree on one or two languages, or each of them chooses one of the official languages. Indeed, the use of more than one language is what, generally, we would be inclined to favour. Article 22.2 adds the following:

"If two procedural languages are selected by the parties, any instruments may be filed in either language. Either language may be used at the hearings, subject, if the Tribunal so requires, to translation and interpretation. The orders and the award of the Tribunal shall be rendered and the record kept in both procedural languages, both versions being equally authentic."

One may take the view, however, that the range of options, currently restricted to the official languages, might be extended. Similarly, the requirement for the decisions to be authentic in each of the versions is a possible source of further litigation.

Freedom of choice is an essential element of the ICC's policy of universality. Its Rules are currently available in only 15 languages. But it also accepts arbitrations in any other language agreed by the parties or determined by the arbitrator.

Finally, certain rules are totally silent regarding the choice of language, thus, it would seem, implying that the arbitrator has absolute discretion. This is the case, for instance, with the Rules of the International Arbitration Centre of the Federal Economic Chamber of Vienna. However, in what is termed "additional indications deemed to be useful" to the recommended arbitration clause, these Rules suggest that the language of the arbitration should be defined in the arbitration clause.

E. One language or several languages

From this brief study of a number of sets of rules, we have noted that, in most cases, the language of the contract plays a determining role in the choice of the language of the arbitration.

However, in our view, the most important point is that the majority of rules do not specify one language on its own. Nonetheless, in practice, apart from very rare exceptions, the arbitrator will adopt a single language - usually the language of the contract -though in practice most rules provide him with the option of conducting the procedure in several languages. This is the case with the ICC Rules which refer to "the language or languages" of the arbitration, as do the rules of the Zurich Chamber of Commerce, the AAA, the Stockholm Chamber of Commerce and ICSID.

The new LCIA Rules are not entirely clear. Article 14 of these Rules refers firstly to the language of the arbitration, goes on to envisage a situation in which the arbitration clause was drafted in "more than one language," and then immediately decides that unless the agreement expressly stipulates that the arbitration is to be conducted in more than one language, the tribunal must decide which of the languages is to be the language of the arbitration. The remainder of the article is devoted to questions of translation.

In the official comments on the document (LCIA Newsletter, October 1996), it is reported that the origin of this new version derives from a recent problem, but the reading of Article 14 does not lead to an obvious conclusion. Our impression is that the LCIA's preference is directed quite clearly towards one language, English, but that the use of two languages is not ruled out.

The WIPO Rules seem to envisage only one language and this is also the case with the Russian and Hungarian Rules. The Chinese Rules, as we read them, envisage the possibility of more than one language.

Hence, before concluding this section of the article, we must recommend that the language or languages of the arbitration should be clearly specified in the arbitration clause, particularly in view of the flexibility offered by most of the rules that we have cited above.

Accordingly, our conclusion from studying these rules is that, apart from one or two exceptions, the arbitrator in fact is afforded the liberty not to use only one language. How does this work in practice?

II- The arbitrator and the language of arbitration

A. Choice of the language by the arbitrator

What criteria does the arbitrator use in determining the choice of the language or languages of the arbitration?

Let us assume that the arbitrator has to decide the question. In this case there is an infinite variety of alternative situations, all equally complex.

For instance, a contract may be drafted in one language while one or both of the parties usually use a different language or, alternatively, the Request may be submitted in one language and the Answer in another. A further possibility is that, whatever the circumstances, the parties ask the arbitral tribunal to settle this point in the form of a preliminary question. Another possible scenario is where an arbitral tribunal considers on its own motion that, taking various factors into account, it itself must determine whether one party is communicating in a language to which the other has not consented. Yet again, the contract may have been drafted in one language but most of the correspondence may be in another. In certain cases, the correspondence will be in two different languages, with each party writing in whichever language it wishes. Lastly, the arbitrator may consider w het her it is appropriate for the procedural language to be totally different from the language of the law governing the substantive issues, especially if the law in question is a law drafted in a language in widespread use.

Therefore, how do arbitrators act in practice?

In ICC arbitration, the statistics are most surprising. While some 65 per cent of contracts are drafted in English, we find that out of the 1,229 arbitral awards handed down between 1 January 1988 and 30 March 1996, only 712 -that is 57.9 per cent ­ were in English. This quite clearly means that arbitrators do not systematically apply Article 15.3 of the Rules which gives priority to the language of the contract, and we are delighted to note this. Over the same period, 383 awards - that is, 31 per cent of the total - were rendered in French, although this language is only used on average in 20 per cent of contracts submitted to ICC arbitration.

These percentages indicate a different practice from what one would generally imagine in the world of arbitration.

What lessons can be learned from this? No doubt arbitrators place more weight on the first part of Article 15.3 of the ICC Rules, that is they take all the circumstances of the case into consideration.

So far as other arbitration institutions are concerned, the American Arbitration Association has no statistics on the language used. It can be assumed that virtually all the awards are in English.

In 1994 and 1995, the LCIA handed down between 90 and 95 per cent of its awards in English, and this language was also the language of the contract. Other awards have been rendered by the LCIA in Spanish, Portuguese, Russian and German, but apparently none in French.

As we can see, situations vary widely, and in ICC arbitration there is more flexibility than might generally have been imagined.

Admittedly, anomalous situations can arise.

One example, fortunately a very unusual one, is provided by a recent arbitration where the three arbitrators were Francophone. The dispute had arisen between a French company represented by a French attorney and another European company, whose American counsel asked for English to be the language of the arbitration. The tribunal agreed, although the law applicable to the substantive is­ sues was French law, and the situs in Francophone Switzerland. The American counsel threw himself enthusiastically into a procedure with which he was well acquainted. As a result of this, in order to present its case to the arbitrators, the French company had to appoint an American attorney as well. The situation was all the more unusual in that the only language used by the arbitrators in their internal correspondence and during their deliberations was French. The fact demonstrated by this case -which is not uncommon -is that the 'internal' language of the arbitral tribunal, in other words the language of deliberation and the language of correspondence between the arbitrators, can be different from the language of the arbitration.

Accordingly, we feel that, when this issue is important to them, parties must act more forcefully than they have done in most cases up to now.

B. Language and choice of arbitrator

This leads us as a matter of course to the question of what linguistic knowledge can be required of an international arbitrator.

In our mind it is clear that the arbitrator must have perfect knowledge of the language of the arbitration. Although one is reluctant to state the obvious, practice has shown that difficulties can arise in this connection.

Of course, no problem arises when the language or languages have been chosen in the contract or, in the less common case, by agreement between the parties. The difficulty arises when no clear choice has been made.

A distinction must be drawn between two situations: the stage before the language of the arbitration has been decided and the stage after this issue has been determined.

1) Before the language has been chosen

Take, by way of example, a contract between two companies, one Austrian and the other Argentinian. The contract is drafted in Spanish, and most of the correspondence is in Spanish. The contract was performed in Argentina and Argentinian law is applicable to the substantive issues of the dispute. The Austrian company submits a Request for arbitration drafted in German. It approaches an arbitrator and asks him whether he would agree to be nominated by that company. The arbitrator in question is not a Spanish speaker. It appears to him a priori that, in view of the circumstances of the case, Spanish should be, if not the only language, at least one of the two languages of the arbitration. Accordingly, he refuses to be nominated. In our mind, he is only fulfilling his duty. But the company points out to him that, by refusing to act, he has deprived it of the arbitrator whom it wanted and, above all, the company does not see why German should not be the language of the arbitration in that it sent some letters in German. It is clear, and this is our belief, that if the arbitrator in question understands Spanish, can read documents and express himself in that language, there is nothing to prevent his accepting, provided that at the same time he urges the arbitral tribunal to ensure that both Spanish and German are the languages of the arbitration.

Accordingly, in our view, when he is asked to act, a prospective arbitrator should only accept if he speaks, reads and writes fluently in what any professional would consider ought to be the language or one of the languages of the arbitration.

2) After the language has been chosen

Once the language has been defined, the arbitrator's duties become clear. Obviously, the arbitrator should not accept his task if he does not understand the language or languages of the arbitration perfectly. Yet, in practice, arbitrators sometimes agree to act despite the fact that their ability to speak the language or languages of the arbitration is very poor and they cannot draft in it (or them). The consequence of such an attitude is very risky. First of all, by implication the arbitrator in question will not be in a position to understand witnesses speaking in the language of the arbitration and hence will not be able to participate in the hearings directly himself. Even more serious is the fact that he will not be able to take part effectively in drafting the orders and the award unless he has an infrastructure at his disposal (for example, if he is a member of a large firm).

Accordingly, we should like to draw particular attention to the fact that not only does agreeing to act as arbitrator in such circumstances constitute lack of consideration at the personal level, but also that this may well be detrimental to the party that proposed or appointed the arbitrator in question. Hence we conclude from this example that an arbitrator should, in all circumstances, be able to read, speak and write in the language of the arbitration. However, it must be stressed that there are excellent international arbitrators -whose reputation is well deserved -who only practice one language, their mother tongue. Clearly this is easier for English and French-speakers (in total more than 3/4 of ICC arbitrations) than for others, but this does not in any way detract from the universal respect they deserve. We must avoid the mistake of associating skill with multilingualism.

We note that as matters stand, an English-speaking arbitrator may be unilingual with no detriment to his practice, whereas arbitrators of other mother tongues have to be at least bilingual, or even trilingual.

In addition, in our view, these facts are equally applicable for the same reasons and in the same circumstances to lawyers involved in international arbitration.

In any case, if more than one language is used, it is essential that the arbitrator has in-depth knowledge of them.

How is such a principle to be implemented?

The ICC Rules imply that the arbitrator may be challenged if he does not have the required qualifications. Two possibilities may arise.

Article 2.8 allows an arbitrator to be challenged "whether for an alleged lack of independence or otherwise." In our mind, an arbitrator who has knowingly accepted his task but is not in a position to carry it out owing to his lack of knowledge of the language or languages of the arbitration might be challenged on the basis of this paragraph.

Article 2.11 is even more explicit:

"An arbitrator shall also be replaced when the Court decides that he is prevented de jure or de facto from fulfilling his functions ..."

We hope that the ICC International Court of Arbitration will continue to take vigorous steps in cases where an arbitrator does not have perfect knowledge of the language or languages of the arbitration, though fortunately these are very rare.

Questions regarding the language have been referred to the French courts on at least two occasions.

In one ad hoc arbitration, a party had lodged a challenge against an arbitrator in interlocutory proceedings before the Paris Tribunal de Grande Instance (Court of First Instance), on the ground that "he did not have adequate knowledge of English technical terms relating to the construction industry." However, during the hearings, the plaintiff had "stated that it no longer wished to maintain the plea relating to the arbitrator's knowledge of English." After taking official note of the withdrawal of this plea, the Court,⁷ in a somewhat surprising fashion, ruled "that assessing the skill of an arbitrator and his linguistic aptitude to take part in an arbitral tribunal did not appear to fall within the task assigned to the President of the Court of First Instance, whereas whether or not to accept the task as 'judge' proposed to him was a matter for the arbitrator's conscience on the basis of the particular features of the dispute and the parties' expectations." In point of fact, the reasoning given here is superfluous in that the plea had been withdrawn. Nonetheless, as regards the merits, this decision is to be regretted in so far as the President of the Court had jurisdiction in relation to the challenge. One would have been entitled to hope that the judge would adduce an entirely different reason, namely if it were proven that the arbitrator did not speak English fluently, his removal from office would go without saying. Such decisions do not benefit international arbitration.

Another decision was handed down by the Cour d'appel de Paris.⁸ A Spanish party had sent the Spanish-speaking arbitrators two of his sets of pleadings in Spanish, although the language of the arbitration was English. It was asserted that "this improper communication thus [provided] one of the parties with preferential access to certain members of the arbitral tribunal at the cost of! serious irregularity stemming from unfair conduct." However, the Court noted that it had not been alleged that the contents of the pleadings communicated in Spanish were any different from those produced in the language of the arbitration and that, under these circumstances, after having noted that the documents had been produced in due form in English, the Court of Appeal concluded from this that the parties had been treated on a strictly equal footing. In this case, too, we consider that this decision can be criticised since, whatever one might say about it, such a procedure infringes the equality between the parties and, in fact, authorises arbitrators not to work in the language of the proceedings and to create an imbalance within the Arbitral Tribunal.

* * * * *

What conclusions can we draw from this brief study of arbitrators' practice in the field of language?

Firstly, with the exception of a small number of Rules, arbitrators have a great deal of latitude in determining the language. This observation is fundamental.

The second conclusion is that, in our mind, parties must be very exigent as regards the linguistic knowledge of each of the members of the arbitral tribunal.

Thirdly, the automatic linkage of the language of the proceedings with the language of the contract, combined with disregard of the law applicable to the merits of the case, run the risk of creating situations that are detrimental to one or both of the parties and, in any case, are very unlikely to facilitate the progress of an arbitration.

Yet, if we do not oppose the link made by certain Rules, and, above all, by practitioners, between the language of the arbitration and the language of the contract, there is a risk that the gap between the particularities of national laws and the growing uniformity of procedures will widen with the latter reacting upon the former.

This does not in any way mean that the language of the contract should not be used as one of the languages of the arbitration. It may turn out to be essential for explaining the parties' intention, and this will often be the case. This was clearly stated by the International Court of Justice in its opinion n° 10 of 10 February 1925:

"The Convention was drawn up in French and therefore regard must be given to the meaning of the disputed term in that language".⁹

Is it possible to find a solution which, while respecting the rights of the parties, does not present the disadvantages described above?

We think so.

In fact, in this article we have noted the extent to which language is linked to culture. Legal concepts are an integral part of any culture. Yet, in practice, the choice of a particular language implies -not always but frequently -reference to a procedure which is not necessarily that of the law governing the substantive issues. And the choice of a procedure often will bear on the choice of a counsel, who, quite naturally, will tend to apply the procedure he/she is familiar with, with all the advantages, but also the excesses, that this entails. We are thinking in particular of evidentiary investigations, discovery, voluminous pleadings and the obsession with detail. In a recent arbitration -admittedly an important one -the documents communicated by the parties weighed exactly 967 kgs. It is difficult in practice not to make a connection between the nationality of the lawyers, the procedure followed and the language of the arbitration.

In addition to the procedural difficulties, there are considerable disadvantages linked to the opposition -since this is indeed what it sometimes is between the law applicable to the merits of the case and the language used. How can one explain concepts such as "trusts" or "frustration" in French to arbitrators? How does one translate the term "action publique" when this concept is not recognised by English or American law?

It would be unwise to recommend for all cases bilingual or even trilingual arbitrations. Such a choice should be made on a case by case basis taking into account all relevant circumstances. Neither the language of the contract nor the language of the law applicable to the merits should necessarily be regarded as the language or one of the languages of the arbitration if the language concerned is not widespread in international practice. Bilingualism is a reasonable suggestion only when it applies to languages whose widespread use is confirmed by practice. Let us note that English, French, German, Italian, Spanish and Arabic are present in over 95% of contracts submitted to ICC arbitration. To act otherwise would limit unduly the possibility to choose seasoned arbitrators.

Therefore, depending of course on the disputes submitted to arbitration, we would suggest that arbitrators do not hesitate, where necessary, to choose more than one official language for the proceedings and authorise both the production of documents and the hearing of witnesses without translation as well as communication by the par­ ties in either of the chosen languages.

Bilingualism or multilingualism are common features of international relations.

Such is diplomatic usage: treaties are drafted in as many languages as there are parties.

Such is also the practice as regards official texts in bilingual and multilingual States.

Such is the practice of the International Court of Justice which, as well as before, the International Permanent Court of Justice, renders its decisions in English and French.¹⁰

It is often said that the use of more than one language is a source of substantial expense and difficulties relating to the interpretation of the award or procedural acts. In recommending the combined use of two languages, subject of course to the arbitrator's being totally bilingual, we believe we would avoid this pitfall: there is no need for translation or for interpretation so far as the arbitrator is concerned. And from the standpoint of the award and procedural acts, there is nothing to prevent the tribunal from supplying a translation in the other language as well. In the event of discrepancy in interpretation, the version in the language that is designated as authentic at the start of the procedure will prevail. However, if the award is not carried out voluntarily, a translation may be necessary. But this is already the case: Article IV of the New York Convention states that if the award is not drafted in an official language of the country in which the award is relied on, the party applying for recognition and enforcement must produce a certified translation into that language.

The solution recommended above in terms of the combined application of the two main languages of the case, ideally that of the law applicable to the substantive issues and the language of the contract, seems to be a means of resolving the eternal potential conflict between language of culture and language of communication.

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