I’ve recently been translating a contract for a Swiss national, public company and found that my familiarity with Swiss law wasn’t quite as in-depth as is the case with Italian law. The project meant checking a number of Articles within the Swiss Civil Code (Codice civile svizzero), and the Swiss Code of Obligations. The comparison of Italian law with Swiss law is fascinating, especially given the fact that the law in Switzerland is provided in German, French and Italian.
During the translation of this contract I’ve spent time refamiliarising myself with Swiss law, as it plays such as significant role in international contracts and business. This is the case as foreign contracting parties tend not to have any prior links to Switzerland, so it is considered neutral, and thus something of a safe choice. The choice of Switzerland for its perceived neutrality is also motivated by the choice of Switzerland a a forum for arbitration.
Swiss law itself is also attractive. As I was studying the Swiss Code of Obligations, I was impressed by the incredible conciseness of the law. It is succinct and highly accessible. Its development, due to the geographical nature and different Cantons of Switzerland mean that it lies at the cross roads of various legal systems and is drafted in Italian, German, and French.
In the translation of contracts, it is crucial to consider how it is likely to be interpreted in the worst case situation; that is, litigation. These issues are crucial to consider when translating, and it is notable that Article 18 of the Swiss Code of Obligations provides, inter alia, that in relation to the interpretation of contracts,
“the form and content of a contract shall be interpreted in accordance with the real and common intention of the parties. Terms or expressions used by the parties in error or in order to conceal the real content of the Contract shall be disregarded.”
This is because in Swiss law, the Contract is the starting point of interpretation. A judge or arbitrator will consider what lies behind the contract, looking at drafts of the provision, and even call upon the individuals who negotiated the contract to provide evidence of their intentions. Where it is decided that their intentions at the time of negotiating the contract were unclear, the principle of good faith will come into play. It is this which provides perhaps the most significant difference between common law systems, such as that of the United Kingdom, and the Swiss legal system (and other civil law systems, such as the French and Italian systems).
This difference in the legal systems highlights exactly how important it is that a contract is translated perfectly. Every phrase, every word, every legal term; there must all absolutely no doubt that the word chosen in translation is the right one. The meaning of a word can alter the meaning and thus the interpretation of a contract, and this simply cannot happen. Legal translation is thus a highly skilled profession, best performed by those with legal experience and knowledge, and an appreciation of legal terms, nuance, clarity, and the intricacies of the law and legal practice.
The Swiss Civil Code: persons, family, succession and property, is available here
The Swiss Code of Obligations is available here
An extremely useful guide to Swiss law is available here in English
Valuable resource for researching Swiss Law