Legal Drafting in English The big picture on the small print

1 Legal Drafting in EnglishThe big picture on the small printLegal Drafting in EnglishWilliam Caxton(c1415/22-c1492), Introduced the firstprinting press to England, credited withstandardising the English language123 IntroductionThis Eversheds guide to Legal Drafting in English isnot a dictionary, grammar book or academic is it a comprehensive look at aspects ofEnglish in a Legal context. Instead, it is a pioneeringattempt to provide some practical assistance to busylawyers around the world whose native language isnot English but who, in the course of their daily work,need to read, write, negotiate and converse in Legal English .One of the first problems we faced was the fact that there are many equally valid versions of legalEnglish , including UK and US English . These are notonly different from each other but are evolving all the time, adding new words with new connotations,such as cybersquatting, mobbing, pretexting andwikispamming.

2 They are also based upon verydiverse Legal systems: compare and contrastCalifornia, Scotland, New South Wales or India, for , English was not an ideal choice to be aninternational Legal language. For example, modernlegal English is mainly a mixture of Old French, plus some Latin, Greek, German, Dutch, Old Norseand a variety of other languages. Many of these have contributed Legal English terms which have no recognizable connection with modern law in theUK or the USA (or anywhere else where English is the language of law) but which survive to confuseeven native English speakers. Modern day English only started to take shape about400 years ago, at about the same time that certainmodern Legal concepts were also starting to , for example, many terms in modern legalEnglish are based upon ancient French Legal terms that have changed both their Legal and their linguistic kind of historical evolution is not unique to Legal English .

3 There are also quite a few Frenchterms used in modern Legal Dutch, Russian andTurkish. Similarly, the Spanish term for the Internetsign @ (aroba) is actually based upon an old Arabicword which has nothing to do with electronics. However, in comparing Legal English to many otherlegal languages it seems quite clear that English hasby far the most terms that, for historical reasons, aremismatched and misleading. An enormous number of words and phrases used in Legal English havemultiple and misleading meanings which seemdesigned to confuse non- English speakers. Even native speakers can have problems in relationto terms such as the UK company secretary andthe US corporate secretary . These are two verydifferent things and neither should be confused with secretary (a person who types letters and doesother tasks in a business office) and Secretary (a government official in many countries).

4 45 The difficulties of Legal English are made evenworse,due to the fact that it is always used alongside non- Legal English , which has many special problems all of its own. Both are very fast moving targets that are not easy to pin down or to simplify. The OxfordEnglish Dictionary (which is 20 very large volumeslong) adds about 4,000 new English words every book the size of this one could possibly contain allthe rules and suggestions needed to work securelywith international Legal English , but we hopethat this pocketsized selection and miscellany willnevertheless provide you with many useful insights as to some of the most commonly encountered. We ll be highlighting common problems and things to watch out for, as well as examining some errorpatterns that will help you to sense when you mayneed to use a word or phrase with extra caution orshould simply seek an alternative one.

5 We have set up the information in a variety of user-friendly ways, including some charts and a detailedindex. The pages include some false friends youneed to watch out for, worst mistakes to avoid and some meanings which are better found intranslation . There is also a Bibliography, suggestingsome reference materials suitable for more detailed Smith, Partner, Eversheds 2011 Drafting tip:When using bilingual dictionaries,remember that most cannot be relied upon to takeinto account all the different meanings of Englishwords. For example, in British English , the noun a remit is often used, quite informally, to describesomeone s area of responsibility or to describe aspecific task that has been given to them. Thismeaning is rare in US English . It is, however,encountered in Australian English , Indian English and New Zealand s say that your native language is you first encounter a phrase such as that is outside my remit , a good British- English toPortuguese dictionary may tell you that this means isto est fora da minha al ada.

6 Thus, in your mind,the noun al ada = the noun remit . Few bilingualdictionaries will also alert you to the fact that remit here is a British usage, not a US one. However, inlegal Portuguese, al ada also means jurisdiction A note about English spellingThe bad news is that English , in its many localand international varieties, has an enormousnumber of irregular and unpredictable ways tospell many words. The good news is thatEnglish speakers are not very fussy about suchissues and that few words used in Legal English ,even if spelled improperly ,will lead to realerror or speakers worldwide 600 million use English as mother tongue 800 million more learn and use English as second language 330 million use English in India alone In China, 175 million people werestudying English in 2005 and 20 millionmore business users of English areemerging each year 70 countries use English as an officiallanguage in government, courts, mediaand education English is the working language ininternational industry sectors such as finance, petroleum, aviation and the Internet6 Some Drafting advice, from past masters.

7 If your words are not correct, your business will not be successful. K ung Ch iu [Confucius] (Chinese philosopher, 551-479 BCE). kann das Wort so hoch unm glich sch tzen .. Geschrieben steht: Im Anfang war der Sinn.[I cannot rate the Word in first place .. in thebeginning is Meaning]Johann Wolfgang von Goethe (1749-1832), FaustPart I, lines 1,120-1, parler a ses foiblesses et ses deffaults,comme tout le reste. La plus part des occasionsdes troubles du monde sont Grammariens. [Our speech has its own weakness and defects, likethe rest of us. Most of the difficulties in this worldarise from disputes about grammar (the meaningof words).]Michel de Montaigne (1533-1592), Essays, Book II,Chapter 12 (Apology for Raymond Sebond). 98and competence . If you then use the word remit generally to mean jurisdiction or competence ,people in the US and in the UK will probably be are many such examples, involving alllanguages.

8 Always try to use the English word that is the most neutral and the most universally accurateand understood. When in doubt, look up the sameword in a British and in a US dictionary and comparethe meanings and examples given, by both. Also, go back and use your British- English to Portuguesedictionary, the other way around. Look under al ada , in the Portuguese part: if the Englishtranslations for the word do not include remit thatis a good sign that remit may have a very specialand limited easy thing to do is to check in a good mono-lingual thesaurus (please see Bibliography). 10 Legal English that is internationally used andunderstood:antitrust, balanced scorecard, B2B(business to business), cash flow, CEO, class actions,copyright, corporate governance, director, dotcom,due diligence, dumping, EBITDA, financing,franchising, GAAP, golden share, hacking, hedgefund, IAS, Internet, insider trading, IPO, jointventure, leader, leasing, leveraged buy-out (LBO),LIBOR, lobbying, management, marketing, M&A,MBO, money laundering, option, outsourcing, peer-to-peer (P2P), raider, self-dealing, SIX SIGMA, spam,whistleblower, words and phrases in Legal English catch on so well that they become part of local standardvocabulary.

9 For example, in German the English term corporate governance is used even in the officialGerman-language text of important rules and lawssuch as the German Deutscher Corporate GovernanceKodex and the Austrian sterreichischerCorporateGovernance Kodex . It is also used in the PolishTwo different approaches to It Simple, Stupid (American saying)When I use a word, Humpty Dumpty said, in a rather scornful tone, it means just what Ichoose it to Carroll (British author, 1832-1898), inThrough the Looking-Glass (1872). 11 Dobre Praktyki w Sp kach Publicznych 2005opracowane przez Komitet Dobrych Praktyk Forum Corporate Governance and the Dutch DeNederlandse corporate governance code Beginselenvan deugdelijk ondernemingsbestuur en best practicebepalingen , which also uses the English term bestpractice .In other languages, an easily recognizable localtranslation of corporate governance is used: (Greek) and Guvernan Corporativ (Romanian).

10 The terms used inAzerbaijani and Estonian are not so easilyrecognizable ( Korporativ dar etm and ldjuhtimine ) but they are merely a word for word translation of corporate + governance . Two different terms are used to translate these intoChinese (" " or " "). Four such termsare used in Thai:13 Some colorful Legal phrases: Beige Book, blackacre, black letter law,blacklist, blackmail, blackout period, BlueBook, blue-pencilling, blueback, blue chip,blue ribbon jury, Blue Sky laws, brownfield,under color of law, colorable title, goldenrule, golden share, golden handshake,golden parachute, greed card, greenmail,greenwashing, Gretna Green marriage,green belt, Green Paper, green shoe,evergreen contract, evergreen prospectus,greenhouse gas emissions trading, Gray sinn, pink ceiling, Purple Book (UK PensionsRegulator), Purple Book (FIDIC)