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
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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 – preemption× 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
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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
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As/like
Less/More
Not such
As…as…
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Contrasting
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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
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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.)
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