Legal translation and International arbitration

Батлер У.Э. <*>, доктор юридических наук, академик Российской академии естественных наук и Национальной Академии наук Украины, профессор Лондонского университета и Пенсильванского университета, арбитр МКАС при ТПП РФ.

--------------------------------

<*> Butler W.E., Foreign Member, National Academy of Sciences of Ukraine; John Edward Fowler Distinguished Professor of Law, Pennsylvania State University; Emeritus Professor of Comparative Law, University College London; Corresponding Member, International Academy of Comparative Law.

Where issues of the application of foreign law are involved that require recourse by a court or arbitration tribunal to the texts of foreign legislation, judicial practice, or doctrinal writings, the guidance offered by the legislator is helpful only to a point. The Civil Code of the Russian Federation is probably representative, at least generally, of the approach taken in many, if not most, countries of the world. A Russian court or arbitral tribunal is directed, when applying foreign law, to establish the content of norms of foreign law "in accordance with their official interpretation, practice of application, and doctrine in the respective foreign State" (Article 1191(1), Civil Code) <1>. The court or arbitral tribunal is at liberty to apply in the established procedure for assistance and explanation either to the Ministry of Justice of the Russian Federation and other competent agencies or organizations in Russia, or abroad, or to enlist experts for this purpose <2>.

--------------------------------

<1> Butler W.E. Civil Code of the Russian Federation. 2010. P. 386.

<2> But contrast the United States practice, which allows a federal court to undertake its own research and consider any relevant material found. The court may have better foreign law materials available than counsel or may reexamine and amplify material presented by counsel in partisan fashion or in insufficient detail. See the Note published in 1966 to Rule 44.1, Federal Rules of Civil Procedure.

Participants in a Russian proceeding may submit "documents" to the court or tribunal that confirm the content of norms of foreign law that are referred to either in substantiation of or by way of objection to demands being made or to otherwise assist the court or tribunal in establishing the content of these norms (Article 1191(2), Civil Code - CC). Russian law is the default position if the content of norms of foreign law cannot be established, not with standing the measures taken pursuant to Article 1191.

What the legislator glides over in silence (and does so, virtually universally) is that legal translation will inevitably underlie establishing the "content of the norms of foreign legislation". No standards are prescribed for translations, and judicial practice can be astonishingly cavalier in its naivete about the central role translation must play in determining what the rules of foreign law may be in a particular situation. Experts may be enlisted to assist the court (Article 1191(2), Russian Civil Code; § 44.1, Federal Rules of Civil Procedure, United States), although the need to involve them is being doubted in some circles.

The parameters of the discussion are well illustrated in a case in the United States Court of Appeals for the Seventh Circuit <1>. Unless the court reads the relevant foreign language, translations must be consulted, whether supplied by the parties and/or located by the court independently. Courts are circumspect about their capacity to work in foreign languages. Arbitrators may be less circumspect and, in my experience, commonly work in two or more languages without interpreters - a facility which may have contributed to their being chosen to arbitrate. Nonetheless, international arbitrations addressing foreign law situations widely use legal translations of foreign normative, judicial, and doctrinal material and will usually depend upon the parties to provide texts in support of their allegations or objections.

--------------------------------

<1> Bodum USA Inc., Plaintiff-Appellant, v. La Cafetiere, Inc., Defendant-Appellant, 621 F3d 624; 2010 U.S. App. LEXIS 18374; 96 U.S.P.Q.2D (BNA) 1689, 2 September 2010.

It can happen that texts provided by the parties to a proceeding enjoy the status of an "official" translation - a status that involves its own problems. "Official" rubbish is rubbish nonetheless; attaching the word "official" to a translation does nothing to enhance the quality of the product. Governments do not translate; people do (or computers, which is a danger of an entirely different magnitude). Governments (or churches) endorse the quality or accuracy of a translation at their peril; in doing so, they do not elevate the text to the level of legislation. Rather, they do seek to quell a measure of dissonance over what the legislation adopted in one language means in another. In attempting to do so, they may create more problems than they resolve, tempting as superficially the prospect may be, that labeling a translation as "official" confers upon it an immutable and unassailable quality.

But these situations are uncommon. Most often translations are anything but official, even in countries where bilingualism is predominant. Consider Ukraine, for example, where the official gazette in Ukrainian contains a Russian-language section that is expressly designated as an "unofficial" translation. Unofficial it may be, but almost always the translation is superior to the commercial versions available in Ukraine that survive partly because of the unconscionable delays in producing the Russian-language versions in the gazette (four to six months).

Legal translation may be the proverbial iceberg in the larger world of translation, but not the tip. The ordinary consumer of translations - the layman, the ordinary reader - encounters translation in the domain of literature and poetry. The bookshops and the libraries are full of these and, quite frankly, these receive all the publicity - the prizes, the advertising, the conversation ("have you read...?"), the assignments in schools and universities, and the mill that is called "literary criticism". What the layman does not and cannot see is the submerged portion of the translation iceberg. Legal translation - beyond doubt the most difficult and challenging of all and the essence of comparative law - comprises a vast submerged volumetric portion of the iceberg: "Legal texts are translated in vaster quantities that books and in more varied directions. Dreary as it may seem to all but legal eagles, the translation of law is a prerequisite for the construction and maintenance of a global society" <1>.

--------------------------------

<1> Bellos D. Is That a Fish in Your Ear? 2011. P. 217. The "Fish" to which the title of the book refers is a literary reference to the "Babel fish" in: Adams D. The Hitchhiker's Guide to the Galaxy. 1980, a device to provide us with instant communication with all the peoples on earth.

This has generated a number of subsidiary legal fictions (leaving aside the proposition that all law is a fiction - a proposition that flows from the roots of law in symbols, or words) <1>. These fictions surface in international arbitrations, I suggest, because such arbitrations are by definition "international", that is, more likely than ordinary domestic litigation, arbitration, or other forms of dispute settlement to engage two or more languages either in the proceeding or in the materials submitted by the parties and/or consulted by the arbitrators. We address several of these below, some based on experience, others on anecdote. I offer my own labels for them - some familiar, others perhaps original.

--------------------------------

<1> "Law is the very model of an untranslatable text, because the language of law is self-enclosed and refers to nothing outside of itself" (Bellos D. Op. cit. P. 217). Oddly enough, in our studies of comparative law we classify families of legal systems on the basis of legal traditions, legal cultures, legal sovereignties (geography), and others, but not on the basis of languages. Are we overlooking the obvious?

The Fiction of Equivalence

The self-enclosed nature of the terminology of law encourages the creation of an internally coherent set of signs that can never be successfully superimposed upon any other system. The seemingly abstract and neutral statement of that proposition is complicated immeasurably by the fact that the coherence of the system - being a human creation and part of the political process in any given society - is far from perfect and is reflective of cultural, historical, sociological, anthropological, and other extraneous elements that influence the choice and the meaning of the signs (words) chosen. Taken to an extreme, this state of affairs would suggest that legal translation is impossible. Even within a single language the signs vary, such that English law, American law, Australian law, Canadian law, despite a measure of shared signs, operate different distinctions. As Barros aptly observed, these are the reasons "you can't translate legal language - except that you must" <1>.

--------------------------------

<1> Bellos D. Op. cit. P. 220: "...the terms they use are not interchangeable. Each one is truly sui generis, constituted exclusively by the particular distinctions it makes".

Some years ago I was invited to speak at a summarily-convened conference in Moscow of Russian teachers of English language to law students. A foreign language is compulsory for Russian law students. The English language is the most popular choice. The conference participants assembled from throughout the country, though the majority were Muscovites. I was asked to speak about my approach to legal translation. I spoke for more than two hours and answered questions for another ninety minutes. It became clear that these teachers were experiencing a tangible measure of dissatisfaction on the part of their students. They were trained in philology, fluent in English, well-schooled in the rules of English grammar and style. But they were not trained in English law, and that was the source of the dissatisfaction. Their students believed that under the guise of teaching language, they were in fact teaching English law - of which they as teachers knew nothing. And so the question was framed: can one teach legal terminology of a foreign language to law students without teaching the law itself? Or should, or must, one be legally trained in order to teach the legal terminology of a foreign language, together with all other aspects of the foreign language, to law students?

Possible corollaries fall into place rather quickly. Should one be legally trained in order to undertake legal translation or interpreting? Should international and comparative lawyers, as an integral part of their education, be required to produce a legal translation of quality using materials from the legal system(s) in which they propose to concentrate? Should international arbitrators be required to demonstrate proficiency in legal translation as part of their qualifications to serve on a panel of arbitrators?

It is easy to fall into the creation of what I would call "false standards" for attempting to deal with the problems of translation. In fact, legal systems create false standards routinely. It is a widely accepted axiom of court procedure and due process that a defendant or respondent have, or should have, the right to understand the proceeding in which they participate and to speak to the court in their own language. Interpreters are commonly used for this purpose. They are unlikely in practice to be legally trained and may themselves not understand what they are witnessing or being asked to interpret. The fiction is that because they have some knowledge of the languages involved, they are proficient to act. Courts on appeal will not be sympathetic to the complete absence of an interpreter, but are rarely well placed to address the consequences of poor interpreting.

International arbitrations confront the same issues. Interpreters will routinely be provided by the parties and the costs absorbed for this. But the search for individuals who are capable of simultaneous interpretation (a considerable skill quite different from translations done in the solitude of one's study or office) and who have a genuine command of the terminology is perhaps more difficult than for routine court cases. International arbitrations are by their nature sophisticated forms of litigation and the issues more nuanced - and therefore more difficult to translate.

Notaries are commonly requested or required under domestic procedural rules and international conventions to certify or attest the quality of the translations of documents being submitted from one legal system to the courts, officials, or institutions of another. Apostille is a simplified means of such certification. Yet the exercise itself, so far as translation is concerned, is pure charade. The notary invariably has absolutely no basis, skills, or even time to make such a determination.

Law is not literature. The legislator (how deceiving is the singular, when even in the most totalitarian systems legislation is the product of many hands) is about as far removed from producing texts of literary quality as can be. The legislator's inherent provincialism (preoccupation with his own legal system and its signs) means that he uses words in ways that create opportunities for the fashioning of transactions that in effect produce results not merely not intended, but actually in circumvention of what the legislator was seeking to achieve. This happens, for example, when the legislator, in seeking to prohibit certain outcomes, fails to take into account what exists in other legal systems to which parties may have recourse in their transactional activity.

Russian family law offers an example. All property acquired during marriage by spouses, under the Russian Family Code, is in their joint ownership, subject to certain exceptions, unless provided otherwise by a marriage contract. It did not occur to the Russian legislator that other legal systems might make available trust structures under which Russian spouses could arguably acquire property and place it outside the spousal ownership regime. Had the Russian legislator done his homework in comparative law and been determined to close the door to any possible circumvention by recourse to institutes of foreign law, such closure might have been easily achieved. By failing to address himself to, in this example, well-known signs extant in other legal traditions, questions arise about the comprehensiveness of the Russian marital property regime.

Globalization may be encouraging the homogenization of, to use Barros' term, "transnational legalese". The Russian language offers an example of a legal system whose signs are in transition as Russian law moves from a socialist to a market-oriented legal tradition: the use of the word арбитраж (arbitrazh) to refer to both "arbitration" and to its exact opposite, litigation in State courts called "arbitrazh" courts. So endemic is the confusion that the website of the Supreme Arbitrazh Court in Moscow actually, in its English-language version, described itself as the antimone, the Supreme Arbitration Court. Instances are encountered every year of contracts whose dispute settlement clauses in Russian refer the parties to the "arbitrazh courts of Moscow" and in English speak of the "arbitration courts of Moscow". Double signing, of course, and mistranslations of calques operating in tandem.

Authentic Texts

The international legal system employs the "ostrich" theory of legal translation: produce a treaty text in multiple languages and describe each text to be "equally authentic". The European Union operates under the rule that all languages of the Union enjoy equal status. The rule itself is paradoxically ungrammatical: "a single original in Danish, Dutch, English...". The implication is that within the European Union, just as in the case of the multilingual texts of international treaties, there are no translations. Every language text is an original - that is, has the same legal force, the same authority, the same validity. Although this overlooks the reality that in almost all international forums, whether the European Union or international treaty-making conferences, or in multilingual national parliaments, the delegates worked in one or a few languages and generated a working document in a single or handful of languages, the fiction of equal authenticity is maintained even though the drafting history is otherwise. The authentic texts, thus, are routinely agreed once the final text is achieved in the single or handful of working languages of the conference or parliament. In other words, the act of translation actually did occur, and may indeed have resulted in the original working-language version being tweaked in order to address nuances what arose in the context of further discussion. The ostrich sees only the authentic text-outcomes of the process and ignores the means by which the texts were actually achieved.

Language-Parity

For those who prefer a less avian characterization of authentic texts, the principle at stake is "language-parity". Because every official EU text or treaty text so designated is deemed to be original and authentic, issues of incorrect translation do not enter into the equation. Just as the Emperor has no clothes, so too every language in which the treaty is concluded is the original. Parallel authentic texts go back early into human history. A favorite example is the Rosetta stone (196 b.c.), which recorded a tax amnesty in Greek, Egyptian, and hieroglyphics. Other examples include the Treaty of Nerchinsk (1689), in which the Jesuits accompanying the Chinese delegation elaborated a text in Latin and then Russian and Chinese language versions were prepared, or a privatization transaction in Kazakhstan in which parallel Russian and English language texts were negotiated and the text in the Kazakh language generated later. Or arbitral awards in which the arbitrators drafted a Russian-language version and then produced the English text as required (or vice versa), both texts of the award being equally authentic.

In a sense what the European Union is doing to quite a high level is developing its own self-enclosed system of legal language within the 24 languages that have official status. For all of its difficulties and denials, that system is capable of working and supporting the myths that it generates. It is strengthened in this mission by the fact that its translators at the level of the European Court of Justice are legal and language professionals who are involved in drafting exercises, or as Barros put it, "...the manipulation of the law as language and language as law" <1>.

--------------------------------

<1> Bellos D. Op. cit. P. 236.

International commercial arbitrations operate in a more decentralized environment with respect to translations and multiple languages, as indeed do most domestic courts. In American federal courts, the judges often see the issue with respect to languages as one which either requires the court to consult existing translations of foreign legislation, doctrine, and judicial practice, or to permit or encourage the parties to enlist the services of experts on foreign law: "But... the law of most... nations that engage in extensive international commerce, is widely available in English. Judges can use not only accepted (sometimes official) translations of statutes and decisions but also ample secondary literature, such as treatises and scholarly commentary" <1>. Arbitrators may say the same.

--------------------------------

<1> Chief Judge Easterbrook, in Bodum, USA Inc., Plaintiff-Appellant, v. La Cafetiere, Inc., Defendant-Appellant, 621 F3d 624; 2010 U.S. App. LEXIS 18374; 96 U.S.P.Q.2D (BNA) 1689, 2 September 2010.

There may an additional minus to using experts, at least in the American context: "Trying to establish foreign law through experts' declarations not only is expensive (experts must be located and paid) but also adds an adversary's spin, which the court then must discount. Published sources such as treatises do not have the slant that characterizes the warring declarations presented in this case" <1>.

--------------------------------

<1> Ibidem.

Much of the American concern about experts serving as "hired guns" for the parties who retain their services is self-inflicted. The federal judiciary is itself appointed on the basis of political calculations and considerations, and experts are not charged, as for example they are in England, with assisting the court or the arbitral tribunal rather than the parties to the case <1>. What the court believed ought to be encouraged is locating "official, or reputable unofficial, translations and when there are not the parties can have the relevant portions translated into English" <2>.

--------------------------------

<1> In his concurring opinion, Judge Posner said: "Lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client". Ibidem.

<2> Easterbrook, ibidem.

What constitutes a "reputable" translation? At the outset, at least, a reputable translator. However, in practice these days the commercial legal world operates with translations deliberately anonymous (produced within law firms by translation divisions or outsourced to translation agencies, or downloaded from the Internet). Firms, just as governments or international organizations, do not translate. People do. Who? What qualifications do they have? Are they experienced legal practitioners or young graduates in languages? Who in the firm is qualified to assess the quality of the work being produced? Worse are the unattributed translations on the Internet or offered by commercial data bases. In the CIS, although the quality and accuracy of the data bases may vary from one country to another, and appropriate account must be taken of those where computers are being used without disclosure of this (e.g., Ukraine), the English-language versions of this material are nothing short of dreadful. The principle caveat emptor must operate.

The same due diligence that lawyers routinely undertake when assessing the quality and veracity of evidence needs to be undertaken with respect to the accuracy of translation <1>. Legal translation, as this writer has argued elsewhere, is the foundation of comparative law. As the European Union recognizes, translation is a matter for the experienced lawyer/linguist/comparatist. Monolingual arbitrators and judges work at their peril with translations whose origins are unknown. Monolingualism is not merely a self-imposed disability; it fractures the ability to place oneself within the mental set of another legal system and its signs, including to appreciate and anticipate the perplexities that may arise simply by virtue of multilingual situations, even if the language is one which the arbitrators themselves do not possess.

--------------------------------

<1> Butler W.E. Russian-English Legal Dictionary. 2001. P. VI.

Резюме

В статье анализируются проблемы юридического перевода в контексте арбитражных и судебных разбирательств. Автор критикует многие современные подходы и фикции при осуществлении юридического перевода, обращая внимание на его значимость при разрешении споров.

Дата добавления: 2015-08-18