Changing the Procedural Language after Constitution: Party Request and Costs

Changing the procedural language after the arbitral tribunal has been constituted is not a unilateral administrative instruction. A party may request a change and must explain why the existing language makes the further proceedings more difficult or why another language would be more suitable. The Vienna Rules, the parties’ agreement and both parties’ right to be heard remain decisive.

Article 26 of the Vienna Rules provides that the arbitral tribunal determines the language or languages of the proceedings if the parties have not agreed on them. It must consider all circumstances, including the language of the contract. Once a language has been fixed, a later change therefore requires a reasoned procedural decision.

This article explains how to prepare the party request, which documents matter for the decision and why translations, interpretation and additional procedural steps can alter the cost plan.

When the procedural language is determined at VIAC

Article 26 of the Vienna Rules starts with the parties’ agreement. If the parties have not agreed on a language or languages, the arbitral tribunal determines them immediately after the file has been transmitted to the tribunal. It must consider all circumstances. The language of the contract is expressly identified as one factor.

Correspondence with the Board and Secretariat is a separate issue. Under Article 5, that correspondence must be in German or English. The language of correspondence therefore does not automatically determine the language of hearings, pleadings or all evidence.

A preparation of the arbitration should therefore record contract language, the arbitration clause, previous filings and the language skills of the participants separately. This makes it possible to distinguish a new factual development from a later preference based only on convenience.

Why a later change requires a formal request

After the tribunal has been constituted, the existing language decision has practical effects. Pleadings may already have been prepared, evidence submitted, witnesses prepared and hearings scheduled. A party should therefore not implement a change simply by filing the next submission in another language. A formal request should identify the desired transition.

The request should set out the existing language and the requested language side by side. It should identify the reason, the affected procedural stages and the proposed effective date. If the change is broad, the request should also explain how documents already filed will be handled.

The form of the arbitration agreement may matter when interpreting the parties’ agreement. It does not replace the review of which language decision the constituted tribunal must make. The change remains a question of ongoing procedural management.

Reasons that can support the party request

A well-founded request explains the concrete benefit of the new language for presenting the case and taking evidence. Relevant factors may include a contract language central to the dispute, a significant body of original documents or the effective participation of witnesses and experts. General convenience does not necessarily provide enough reason.

The effect on the other party is equally important. The tribunal must treat the parties fairly and give them the opportunity to be heard at every stage. A language change must not leave the other party without reasonable preparation time for new pleadings, evidence or a hearing.

Where new evidence is already involved, the article on the right to be heard in arbitration provides a useful related focus. The language question does not replace the opportunity to comment. It can, however, make that review necessary for every affected step.

Building the request and transitional arrangement

A practical request begins with the existing language decision and its basis. It then identifies the reason for the change, the requested language and the proposed start. A schedule can show, for each stage, which documents are already available in which language and which translations are still needed.

Several transition solutions are possible. The tribunal may order a change from a defined procedural step, leave earlier documents in the existing language or require translation only for selected materials. The appropriate solution depends on the procedural stage and fairness to both parties.

The request should also state whether the change concerns pleadings only, oral hearings as well, or evidence and expert reports too. A precise scope helps the tribunal decide and prevents the cost question from appearing only after the order.

Planning translations and additional costs

A language change may create additional costs for translators, interpreters, transcripts or a change in the hearing arrangements. Article 43 of the Vienna Rules expressly refers to interpreters and translators as possible additional procedural costs. The tribunal should generally arrange those steps only once the prospective costs are sufficiently covered.

The cost plan should not cover only the next pleading. It should also consider exhibits, technical documents, witnesses, experts, hearings and any parallel version needed by the other party. A structured list reduces the risk that a seemingly small language change delays the next procedural step.

When dealing with a VIAC advance on costs, distinguish temporary financing from the final allocation of costs. The fact that one party requested the change does not automatically make that party finally responsible for every translation cost.

Separating the request from the final cost decision

Article 42 covers the advance for prospective administrative fees, arbitrator fees and expenses, including any applicable VAT. If translations or interpretation become necessary, an additional advance under Article 43 may be required. Paying that advance does not answer who will bear the costs in the end.

Under Article 44, procedural costs include administrative fees, arbitrator fees, reasonable expenses and other arbitration-related expenditure. Article 38 provides for the allocation of costs by the tribunal. The conduct of the parties and their representatives, including their contribution to an efficient and cost-effective procedure, may be taken into account.

A party should therefore disclose the cost effects in a measured way. A late or overly broad request can complicate the procedure. A timely and limited request supported by a realistic cost plan gives the tribunal a better basis for its decision.

Securing the documents for review

The arbitration agreement, contract, amendments, existing language decision and all related procedural orders should be available in full. The file should also include pleadings, evidence, hearing notices and communications with the tribunal.

A useful schedule contains the procedural stage, document or person, existing language, requested language, required service, expected time and cost effect. This shows whether a complete change or a limited transition is more practical.

The review of the arbitration clause should also remain separate from the language question. A new procedural language does not automatically change the seat. Conversely, a different hearing arrangement may create additional translation or interpretation work.

Common mistakes when changing the language

A frequent mistake is assuming that a party can change the language after constitution simply by using another language in its next pleading. The tribunal manages the procedure, so a reasoned request is safer than presenting a fait accompli.

Another problem is a request that describes only the applicant’s language skills but ignores the contract, documents and effects on the other party. Article 26 requires all circumstances to be considered. That includes the practical fairness of the future proceedings.

Translation costs are also often addressed only after the decision. Under Article 43, sufficient advance funding may be a condition for the service itself. Disclosing the need early can avoid delays and later disputes about payment.

In multi-party proceedings, a change may also affect coordination and joint preparation. The separate question of who is bound by the arbitration agreement shows why the interests of all participants should be recorded separately.

Questions about changing the procedural language

Can a party change the procedural language unilaterally after the tribunal has been constituted?

No. A party may request a change. The tribunal must decide the further language arrangement under the Vienna Rules, the parties’ agreement and the right of both parties to be heard.

Who bears the costs of translations and interpretation?

The prospective costs can initially be secured through an additional advance under Article 43 of the Vienna Rules. Final responsibility is a separate question governed by the applicable rules and the later cost decision.

What reasons should a request to change language contain?

The request should state the existing and requested languages, the concrete procedural benefit, the affected pleadings and evidence, the effect on the other party and a realistic transition and cost plan.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.