Legal writing (not only) in international law Zdeněk Nový Public International Law: Alternative Seminar

The purpose of the presentation To introduce some useful points for a better legal writing 2

Ordinary language × legal language Consideration Construction Tender 3

British × US English Honour×honor, behavior ×behaviour Hyphens are more used in British English than in American English – pre- emption× preemption Z or s? – in British English s is generally used in such words as recognise or authorise In US English “while” is correct, but “whilst” is considered as a pretentious affectation 4

Foreign terminology in English Lex fori, force majeure, inter alia, mutatis mutandis The foreign words are used because they express the idea more precisely than any English expression Yet they should not be overused! (use e.g. so-called, not soi disant). 5

Older expressions Doublets: – Null and void, all and sundry, goods and chattels Triplets: – Dispute, controvery or claim – Hold, posssess and enjoy Modern legal English seeks to avoid doublets and triplets, and thus uses only one word (e.g. disputes). Henceforth, hencewith, thereof, etc. Parties to a contract seeks to avoid words as “thereof” for it may be unclear what they actually refer to. 6

Legal jargon × terms of art A boilerplate clause – legal jargon -> can be replaced by other terms Patent – a term of art cannot be replaced by another term 7

Terminology of international law An internationally wrongful act Crime under international law Other inhuman acts An international treaty/agreement (×not an international contract) Self-defence 8

The register Formal/semi-formal/informal Legal texts are written mostly in formal or semi-formal way This has influence, inter alia, on the vocabular used (e. g. inseparable × inextricable, to start ×to commence) An academic legal text× the letter to a legal counsel 9

The subjunctive form What is imagined, wished, or possible E.g. : The law regulating tobacco products requires that each and every pack of cigarettes contain the warning that… Past subjuntive: If I were in the position of your client, I would prefer a settlement. 10

Don't use contractions in formal legal texts The prevention of ambiguity (I'd = I would×I had) 11

Phrasal verbs used in legal English Enter into, brush up on, account for, boil down to, set aside, put forward, break down into… As with anything, a moderate use can do no harm 12

The provision, rule, article etc. Sets forth, stipulates, provides that (for), lays down 13

The client/claimant etc. Asserts, claims, insists, argues, repeats … 14

Right, duty, obligation Enjoy a right/enforce/waive/lose a right Is entitled to/ To be under an obligation/ to be obliged/ to assume an obligation/to have a duty To fullfil/honour an obligation/to respect a duty/to comply with a law/to meet a requirement To breach an obligation/contract/treaty To infringe a right (namely an IP right) 15

Shall/should/ought to Shall – used often in connection with legal duty Should/ought to - a recommendation 16

Expressing an opinion In my view/opinion/judgement I believe/I think/I would argue that… 17

Comparing As/like Less/More Not such As…as… 18

Contrasting While (whilst) X…, Y/ X is, whereas Y is…/Y as opposed to Y… But/yet Although/though/even though/albeit Despite the fact/ In spite of the fact/Notwithstanding the fact However/nevertheless/nonetheless/still/evem so 19

Contrasting II In contrast to, in comparison with 20

Linking words To link ideas, paragraphs, etc. Therefore, thus, hence.. In consequence/consequently/as a consequence/as a result But, yet, however, nonetheless, nevertheless Moreover, furthermore, in addition 21

Conclusion In sum/in summary/to sum up/all in all/on balance etc. 22

Legal texts Please try to use simple language It is not true that the more complicated language, the better legal text 23

Three layers of a (legal) text Macro level – Type of text – Structure Intermediate level – Paragraphs (cohesion etc.) Micro level – sentence structure – a style/register 24

Lawyers tend to overuse passive voice Please use the active voice where possible 25

One main idea per sentence If you want to add something or qualify what you have just said, then consider starting a new sentence. Always start with the most important piece of information, then continue with qualifications, exceptions etc. 26

Use positive phrases where possible It may not be strategic to formulate the claim of your client in a negative way (Wrongly It does not seem excluded that your client would have to return the unjust enrichment). 27

A paragraph = a unit of thoughts Each paragraph should focus on on one idea or topic 28

Give the strenght to your text Avoid nominalisations (”consider“ instead of “give consideration to”) Use short words where possible (“if” instead of “despite”) Avoid ambiguity and sexist language (and generally not PC) language – e.g. chair instead of chairman. 29

The issue of strategy The formulation of e.g. the letter to the client may have important consequences Hence, it is necessary to consider what is the position of your client (a settlement× dispute, a single-shot or long-term deal etc.) Who is the adressee? (an attorney, client, court etc.) 30