The world is getting smaller. Increasingly interconnected. Whilst this brings massive benefit, it also brings the risk of miscommunication and misinterpretation.
As such, in the increasingly interconnected global legal landscape, with legal matters more often transcending geographical boundaries, international litigation has become more common.
The importance of accurate and effective legal translation in this regard cannot be overstated. The precise interpretation of legal documents, evidence, and proceedings plays a pivotal role in ensuring fairness, equity, and the ultimate pursuit of justice.
Why does it matter?
Our planet is a pretty diverse place. Lots of people. Lots of languages. Lots of cultures.
Unsurprisingly, there are therefore lots of countries, lots of jurisdictions, lots of laws and regulations, lots of history.
Translation (and interpreting) is often called the second oldest profession. Since time immemorial people have wanted (or needed) to talk with their neighbours. The same is true today. If you’re on your holidays, you’ll likely want to be able to order a drink or a meal, or at least be able to say please and thank you. If you’re a diplomat, you’ll want to engage with interlocutors to achieve constructive outcomes. In all instances, you want to avoid misunderstanding.
Accurate legal translations serve as the bridge between not only language, but also cultures, jurisdictions, and legal systems. It enables clear communication and understanding among parties, counsel, and courts, and makes sure that the nuances and intricacies of the original source are preserved, preventing misinterpretations that could lead to costly errors and potentially alter the course of litigation.
Conversely, inaccurate legal translations can have far-reaching consequences. Mistranslations can distort factual information, alter legal arguments, and even lead to miscarriages of justice. The stakes are particularly high in international litigation, where cultural and linguistic barriers can amplify the impact of translation errors.
When is it needed?
While parties have the right to choose the language of arbitration, it is not an essential requirement, and often the language to be used is not specified; this may be because parties cannot agree on a choice of language or approach to designating the language, or simply leave the issue open when making their arbitration clause- after all, designating an arbitral language is an optional provision, and any absence thereof doesn't jeopardise the enforceability of the arbitration agreement. However, where parties fail to specify the language of arbitration, the language used or translations/interpretations of the language used could lead to misunderstandings and disagreements.
If the language of arbitration is not specified, different jurisdictions may take different approaches to how a language is decided.
For example, the 2014 ICDR Arbitration Rules at Article 18 impose a presumption in favour of the language(s) of the documents containing the arbitration agreement, subject to the power of the Tribunal to determine otherwise. That provision states:
If the parties have not agreed otherwise, the language(s) of the arbitration shall be the language(s) of the documents containing the arbitration agreement, subject to the power of the arbitral tribunal to determine otherwise. The tribunal may order that any documents delivered in another language shall be accompanied by a translation into the language(s) of the arbitration.
However, the 2015 Arbitration Rules of the China International Economic and Trade Arbitration Commission ( “CIETAC Rules”) provide at Article 81: 18:
Language - 1. Where the parties have agreed on the language of arbitration, their agreement shall prevail. In the absence of such agreement, the language of arbitration to be used in the proceedings shall be Chinese. CIETAC may also designate another language as the language of arbitration having regard to the circumstances of the case.
Naturally, it is entirely possible and likely in international arbitration, that one or more parties may not understand, either entirely or in part, the language of arbitration; between 2011 to 2015, the International Centre for Dispute Resolution (ICDR) reported that it received over 200 new cases with Asian parties in each year wherein English was selected as the language of arbitration, however translation support was required by many of parties.
Similarly, in 2015, the Korean Commercial Arbitration Board (KCAB) received 74 international arbitration cases, of which 75% proceeded in English and the rest in Korean; however, 4% of the international cases involved only non-Korean parties and where the language of arbitration was English, it was sometimes was not the native language of either party and was instead selected as a neutral and functional language - the involvement of translation and interpretation support was frequent.
How should it be done?
The intricate nature of language differences must be carefully considered when arranging translation for arbitration proceedings, further highlighting the significance of language choice and the potential challenges faced when parties, their lawyers, or the arbitrators are not fluent in the arbitral language, requiring the use of translation or interpretation to bridge the language gap.
The importance of accurate, complete, and competent translation cannot be overstated; the translation of legal documents, terms, and opinions demands exceptional precision - not only phonetics, grammar, and syntax, but also regarding the underlying legal system and cultural context of the language.
Taking Chinese and English translation as an example; how does one translate into Chinese those English legal expressions which find their roots in the English legal system and are based on its specific socio-cultural context wherein philosophical, moral, ethical, linguistic and cultural values have all helped shape the evolution of English law evolution? Made harder perhaps as China has a civil law system that uses terms which were originally translated from German and later taken from Japanese. Add to this the additional challenge of the distinct syntax and grammatical approach of the two languages; comparatively speaking, Chinese tends to have a more straightforward sentence structure – this can be an issue where complex English sentences must be translated such as Section 31 of Hong Kong’s Evidence Ordinance Law which is comprised of 354 words, 32 commas and only one full-stop in English. A direct translation into Chinese would resemble a car crash and be completely unintelligible.
How could it go wrong?
In a case involving a Chinese seller and a US buyer (CEEG (Shanghai) Solar Science & Technology Co., Ltd. v. LUMOS LLC), the US Court of Appeals for the 10th Circuit affirmed a lower court's decision to dismiss the Chinese party's motion to confirm an arbitral award in its favour. The district court found that a Chinese language notice sent by the administering institution was not reasonably calculated to apprise the US defendant of the arbitration proceedings. As a result, the defendant was denied its right to participate in the arbitrator selection, rendering the remaining proceedings invalid under the New York Convention.
A sales contract between the two parties had been written in English, and all communications between the parties were conducted in English. The contract provided for China International Economic and Trade Arbitration Commission (CIETAC) arbitration but did not specify an arbitral language. The parties had also entered into a Co-branding Agreement that including a language clause designating English; however, when the US defendant claimed that the goods it received were defective, the Chinese seller initiated arbitration under the sales contract, but not the Co-branding Agreement.
The US defendant argued it was unable to meet the deadline to appoint an arbitrator due to the time it required to translate the Chinese notice of arbitration and find Chinese counsel. CIETAC therefore appointed an arbitrator in its place. The arbitral panel issued an award in favour of the Chinese seller for unpaid goods, interest, costs, and solicitor fees.
Although there were no specific allegations of procedural violations by CIETAC, the US courts found that the language usage in this case was not sufficient to meet the fundamental principle of due process. This case highlights the importance both of carefully considering language usage by the administering institution at the outset of the arbitral proceedings, and of seeking timely and professional translation services of any documents that may be identified as important.
What should you do?
In the complex landscape of international litigation, accurate and effective legal translations are indispensable tools for ensuring fairness, clarity, and the pursuit of justice. In every instance, make sure you are familiar with the arbitration rules of any jurisdiction you ascribe to, and ensure provision for designation of an arbitral language.
Where translations may or are needed, adopt a discerning approach to selecting and working with language service providers that are specialised, experienced, and competent in the legal translations to ensure effective navigation of the linguistic complexities of cross-border disputes – happily, we can help in this regard; reach out to our team to discuss any translation needs you may have at email@example.com or call on 03309121530.