Cross-national business partnerships can be highly profitable, but they can also spark disputes requiring international arbitration or litigation. Some legal firms specializing in international dispute resolution may have bilingual legal professionals on staff. However, cross-border dispute resolution usually requires professional translation as well.
A typical case might center on issues between an American manufacturer of medical instruments and their French distributor. When the contract was negotiated and written up, a “controlling” language would have been established. If English was the controlling language, the contract would be written in English, and the case would most likely be tried by an English-speaking judge, arbitrator, or tribunal. Even if the contract was translated into French for reference, the English contract remains the final authority. Still, the terms of the contract will be carried out in France as the company resells the medical instruments to their customers. If the dispute concerns the representations made to French customers, practically all the documentary evidence — sales records, product information, instructions, and routine business correspondence — will be in French.
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Why hire professionals for litigation translation?
Translating evidence in the discovery phase is sometimes treated as a purely administrative task, to be awarded to the lowest bidder. This is a mistake. Even if the terminology is correct, different languages have different structures. If a translated text is written poorly and does not “flow” properly, it becomes very hard for a reviewer to pick out important points. Evidence can be obscured or overlooked. Cases have been lost on the basis of bad translation; in the case of Occidental Petroleum Corp. v. The Republic of Ecuador, faulty translation may have been partly to blame for the $1.7 billion judgement against Ecuador.
Although counsel for both parties might have bilingual team members, most judges won’t accept translations authored by counsel. In addition to the risk that bias could be introduced, translation is a skill that requires specialized training beyond bilingualism. Many English legal terms have meanings that even a native English speaker can’t understand without a background in law. A translator needs a deep understanding of the text in order to make sense of it and translate it into their own language, using their native country’s terminology. In addition, technical expertise may be needed for some documents, which require translation by a professional who specializes in medical devices. Focusing on costs rather than expertise could introduce serious errors into the process.
What about volume?
If counsel for each side has bilingual professionals on their team, they could review, summarize, and sift out the most important and relevant documents. If in-house resources for document review are not available, your translation partner can provide bilingual subject-matter experts for an on-site review to identify key documents that require professional translation after the discovery phase.
Professional translation: Human or Machine?
In any large translation project, professional translators use software to identify and leverage sections and phrases that are repeated verbatim across multiple documents. This saves time and money. Ideally, a lead translation team would work with the client to establish a termbase or glossary, and then enlist multiple translators while delegating the proofreading and editing task to the leads. A final quality assurance review ensures accuracy and consistency.
Another solution to include is machine translation with post-editing (MTPE). This option can help when insufficient resources are available to address the expected volume of translation. It may also help with costs and turnaround time. Certain language pairs are better suited than others for machine translation – for example, French and English are similar enough that fairly high quality translations can be produced through machine translation. That is not case for English and Chinese.
After a translated text has been generated, human translators would perform post-editing tasks and carefully compare the source and target texts in order to correct any errors before the translation can be used in courts and/or certified.
What is translation certification?
In the United States, a certified translation includes a written and notarized affidavit confirming that the translation is accurate and reflect the source text. There is no federal “certification” for translators themselves, although the American Translators Association offers testing in certain language pairs and the linguists who pass these tests can market themselves as being ATA-certified. Licensing and testing of legal translators varies across countries; some countries have the concept of “officially sworn” translators who own a license recognized by the authorities of that country.
What if there are disagreements over the translation itself?
With respect to possible bias in translated documents, the parties might agree that each side reserves the right to approve or disapprove of the translations submitted as evidence by the other side. If a challenge is made, a third “neutral” professional linguist would evaluate the translation, and if the linguist approves it, the challenger absorbs the review cost. This incentivizes participants to limit their challenges.
International litigation is not pleasant but sometimes it’s necessary. Working with a professional language partner for document discovery and translation is one ingredient for a cost-efficient resolution.