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Translations in International Arbitration | Arbitration

Translations play a crucial role in international arbitration. In a forum where multiple nationalities and languages are involved, the use of translations is common. However, many arbitration users, and lawyers, remain unaware of the challenges of legal translations. While linguistic challenges may increase time and costs, little attention is paid to the complexity of language differences and the possible impact of mistranslations, which will be discussed in the following paragraphs.

Translations-in-International-Arbitration

Language of the Proceeding: Why Are Translations Required in International Arbitration?

In arbitration, one common issue relates to the language to be used in the proceedings. Typically, arbitration rules allow parties to choose the language(s) to be used in the arbitration without limitation (sometimes, but rarely due to its inefficiencies, two languages can be used simultaneously).[1]

In fact, many arbitral institutions recommend the parties to designate the language of the arbitration in their arbitration agreement to avoid discord after an arbitration has begun.[2] For instance, the UNCITRAL Arbitration Rules recommend a model arbitration clause which includes “[t]he language to be used in the arbitral proceedings.[3]

Similarly, the commentary to the Standard ICC Arbitration Clause provides that “it may be desirable for [the parties] to stipulate the place and language of the arbitration”. Likewise, the International Centre for Dispute Resolution (ICDR) recommends the language to be added to the parties agreement:[4]

Parties can provide for arbitration of future disputes by inserting the following clause into their contracts:

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.

The parties should consider adding:

a. The number of arbitrators shall be (one or three);

b. The place of arbitration shall be [city, (province or state), country]; and

c. The language of the arbitration shall be […]

If the parties fail to specify the language, the arbitral tribunal is generally empowered to decide a specific language to be used. In this regard, Article 20 of the ICC Arbitration Rules expressly provides that the language(s) of the arbitration shall be determined by the arbitral tribunal if the parties fail reach an agreement:[5]

In the absence of an agreement by the parties, the arbitral tribunal shall determine the language or languages of the arbitration, due regard being given to all relevant circumstances, including the language of the contract.

Article 19.1 of the UNCITRAL Arbitration Rules also authorizes tribunals to determine the language(s) to be used in the proceedings:[6]

Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings. This determination shall apply to the statement of claim, the statement of defence, and any further written statements and, if oral hearings take place, to the language or languages to be used in such hearings.

Once the language is determined, the need for translations may arise. Not many arbitration rules have specific provisions regarding translations. A notable example, however, is Article 19.2 of the UNCITRAL Arbitration Rules, which gives the arbitral tribunal explicit discretion to order documents, submitted in the original language, to be translated into the language(s) of the arbitration:[7]

The arbitral tribunal may order that any documents annexed to the statement of claim or statement of defence, and any supplementary documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

That said, translations may be needed in variety of circumstances throughout the arbitral proceeding. There is little point in submitting a document that cannot be read by all members of the arbitral tribunal.

Translation of Written Submissions and Evidence in International Arbitration

Parties’ Written Submissions

Mostly, the parties’ written submissions are drafted in the language of the arbitration. Hence, there will be no need for translation of the parties’ pleadings. Nevertheless, as noted above, the arbitration may be bilingual. In such a case, the translation of written submissions might be necessary, at least, for one of the languages.[8]

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Law Applicable to the Dispute

Foreign legislation should be translated if the original differs from the language of the arbitration. Some international instruments and bilateral investment treaties are concluded in more than one language, which reduces the need for translation. For example, the original text of the Vienna Convention on the Law of Treaties was presented in Chinese, English, French, Russia, and Spanish, which are equally accepted.[9]

Underlying Contract

While arbitrators are likely to take into account the language of the contract when determining the language of the arbitration (see, e.g., Article 20 of the ICC Arbitration Rules), it is still possible that the arbitration is conducted in more than one language. In this case, the need for translation will probably arise.

It should be noted that translations of commercial and legal terms incorporated in the original contract must be carefully translated in order to avoid misinterpretation of relevant provision(s).

Documentary Evidence

Translated documents can be an important part of evidence. For instance, parties may submit communications, letters, emails, WhatsApp messages, Tweets, certificates, licences, press releases, official documents such as court decisions, and any other document that they deem relevant for the case. In this respect, Article 3.12(e) of the IBA Rules on the Taking of Evidence in International Arbitration expressly stipulates that “[d]ocuments in a language other than the language of the arbitration that are submitted to the Arbitral Tribunal shall be accompanied by translations marked as such.[10]

The translation of documentary evidence becomes part of the fact-finding process.[11] In other words, the translation will affect the contents of the evidence and fall within the scope of soft law instruments on evidence, such as the IBA Rules on the Taking of Evidence in International Arbitration. Thus, the translation of any supporting document into the language of the arbitration may be challenged by the opposing party.

In all of these cases, the translators selected should ideally have the right expertise and training to understand the subtleties of one country’s legal system and the meaning of relevant legal expressions, while counsel should be judicious in determining what documents warrant production and translation given the additional time and costs that are involved when producing evidence in a foreign language.

Translation of Witness Statements and Expert Reports in International Arbitration

The presentation of witnesses and experts is another area where language issues may be particularly significant.

If a witness is not proficient in the language of the arbitration, the best course of action is to request the witness to prepare his/her statement in his/her native tongue, and to submit the original accompanied by a good translation.[12] This will increase the chances of the witness being truly comfortable with providing testimony at the evidentiary hearing.[13] As one commentator notes, the most significant value of an oral statement is effective communication,[14] thus, if the witness is not comfortable in testifying in the language of the arbitration, he/she should not hesitate to call for an interpreter with appropriate expertise.

The same considerations are relevant for experts. Expert reports may also be submitted in a foreign language provided that they are accompanied by an accurate translation.

Most of the institutional rules do not make a specific provision regarding translation of witness statements or expert reports. Therefore, it is within the parties’ autonomy to arrange for proper translation and interpretation. In the same vein, it is within the power of the arbitral tribunal to require the party presenting the witness or the expert testimony to supply, at its own expenses, translation and interpretation.[15]

Costs for translators and interpreters appointed by the arbitral tribunal are part of arbitration costs, however. These costs are usually subject to advances on costs to be paid by the parties.[16] For instance, the Administrative and Financial Regulations of the International Centre for Settlement of Investment Disputes (ICSID) provide that the Secretary General may provide translation of documents, or interpretations, as part of the Secretariat’s assistance to tribunals:[17]

The Secretary-General may also provide, by use of the staff and equipment of the Centre or of persons employed and equipment acquired on a short-time basis, other services required for the conduct of proceedings, such as the duplication and translation of documents, or interpretations from and to a language other than an official language of the Centre.

The Swiss Rules of International Arbitration, in turn, merely provide that “[a]rrangements shall be made for the translation of oral statements made at a hearing […] if this is deemed necessary by the tribunal.[18]

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Simple or Sworn Translations in Arbitration?

Most arbitration rules do not require certified translations to be made, unless the tribunal decides to order them. Some domestic legislations, however, require all translations to be made by an “authorized” translator.[19] In such a case, proceedings seated in these jurisdictions are bound by this requirement.[20]

Arbitral tribunals are also empowered to decide on the appropriate means to deal with suspicious translations, which can and do occur. For example, tribunals may order sworn translations to be produced (in the case where only unofficial translations were provided), appoint a specific translator or interpreter, or simply draw adverse inferences on some excerpts, especially where the opposing party identifies serious substantive errors in the translations.[21]

Additionally, although there is a prima facie presumption that parties are acting in good faith (throughout the proceeding), anyone who speaks a foreign language knows that words and expressions in one language may not capture the perfect meaning of another language. Thus, the opposing party can always challenge the contents of any translation has been submitted. Even members of the arbitral tribunal may raise questions regarding the translation if they are familiar with the original language of the document.[22] More than one case has, in fact, turned on questionable translations, so reviewing the propriety of translations is important.

On the other hand, domestic courts typically require documents to be officially translated. For the enforcement of arbitral awards, courts typically accept the official translation to be made either in the country in which the award was rendered, or in the country where the enforcement is sought, or for the translation to be certified by a sworn translator of either country.[23] The certification by a diplomatic body, in this case, may be sufficient.[24]

Conclusion

One cannot overemphasize the importance of appropriate translations in international arbitration. Inaccurate translations can lead to additional time spent on reviewing incomprehensible text and jargon, and can undermine a sound case.

In order to reduce the impact of mistranslations, parties should ideally (1) designate one language for the arbitration, (2) appoint arbitrators who are fluent in the chosen language, and (3) whenever translations are needed, look for professionals who are very familiar with the relevant legal terminology in both the original and target languages.[25]


[1]             Sally A. Harpole, “Language in Arbitration Procedure: A Practical Approach For International Commercial Arbitration” 9(2) CAA Journal, p. 274.

[2]             Ibid.

[3]             UNCITRAL Arbitration Rules (as adopted in 2013), Annex.

[4]             ICDR Arbitration Rules, p. 8 (emphases added).

[5]             ICC Arbitration Rules, Article 20 (emphases added).

[6]             UNCITRAL Arbitration Rules, Article 19.1 (emphasis added).

[7]             UNCITRAL Arbitration Rules, Article 19.2 (emphasis added).

[8]             Chang-fa Lo, “Beyond Semantics and Semiotics – Arguing for a Clearer Set of Arbitration Rules on the Issue of Translation and Language Interpreting” 9(2) CAA Journal, p. 203.

[9]             Vienna Convention on the Law of Treaties, Article 85.

[10]            IBA Rules on the Taking of Evidence in International Arbitration, Article 3.12(e).

[11]            Chang-fa Lo, “Beyond Semantics and Semiotics – Arguing for a Clearer Set of Arbitration Rules on the Issue of Translation and Language Interpreting” 9(2) CAA Journal, p. 207.

[12]            C. Tahbaz, “Cross-Cultural Perspectives on Effective Advocacy in International Arbitration – or, How to Avoid Losing in Translation” 14(2) Asian Dispute Review, p. 53.

[13]            Ibid.

[14]            Ibid.

[15]            Joshua Karton, “Reducing the Impact of Mistranslated Testimony in International Arbitral Hearings” 9(2) CAA Journal, p. 231.

[16]            Ibid.

[17]            ICSID Administrative and Financial Regulations, Article 27 (emphases added).

[18]            Swiss Rules of International Arbitration, Article 27.6.

[19]            Joshua Karton, “Reducing the Impact of Mistranslated Testimony in International Arbitral Hearings” 9(2) CAA Journal, p. 230.

[20]            Ibid.

[21]            See, e.g., Chang-fa Lo, “Beyond Semantics and Semiotics – Arguing for a Clearer Set of Arbitration Rules on the Issue of Translation and Language Interpreting” 9(2) CAA Journal, p. 210.

[22]            Ibid.

[23]            Albert Jan Van den Berg (ed.), ‘406 Conditions for Enforcement – Translation’ in Yearbook Commercial Arbitration 1996 – Volume XXI, p. 476.

[24]            Ibid.

[25]            Joshua Karton, “Reducing the Impact of Mistranslated Testimony in International Arbitral Hearings” 9(2) CAA Journal, p. 227.

Reference Article: https://www.international-arbitration-attorney.com/translations-in-international-arbitration/

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