Legal writing (not only) in international law

Zdeněk NovýPublic International Law: Alternative

Seminar

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

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Ordinary language × legal language• Consideration• Construction • Tender

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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

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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).

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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.

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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

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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

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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

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The subjunctive form

• 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.

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Don't use contractions in formal legal texts

• The prevention of ambiguity (I'd = I would×I had)

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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

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

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

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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)

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

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

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

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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

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Contrasting II• In contrast to, in comparison with

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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

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

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Legal texts

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

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Three layers of a (legal) text• Macro level

– Type of text– Structure

• Intermediate level– Paragraphs (cohesion etc.)

• Micro level – sentence structure – a style/register

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Lawyers tend to overuse passive voice

• Please use the active voice where possible

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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.

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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).

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

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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.

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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.)