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As with any aspect of doing business, sometimes exporting can go wrong. Whether it’s with a customer, partner or supplier, the introduction of two or more languages can add a tremendous amount of complexity to cross border disputes.
There are a number of options available to exporters should a dispute arise. Of course, you can go down the litigation route, but this is slow, expensive and increases the likelihood of destroying business relationships both permanently and publically. Mediation or conciliation are less destructive forms of dispute resolution, but these can only result in recommendations that parties can either accept or ignore.
For the vast majority of disputes, arbitration is far more preferable. By agreeing to an arbitration tribunal, both parties can be satisfied that they have a neutral, knowledgeable arbiter (or arbiters) who can decide their rights and obligations. Not only is it faster and cheaper than litigation, its decisions are both binding and private, yet still more likely to retain a certain amount of good will than litigation.
Nevertheless, an international arbitration agreement has a number of linguistic considerations that must be taken into account. Here are five reasons why language is a very important factor for cross border disputes:
The arbitration agreement determines the most important elements of the arbitration process. From the number of people on the tribunal to where the arbitration will take place and which country’s laws it will be accountable to. You should also ensure that the language of arbitration is determined within the agreement before parties nominate the arbiters. While this sounds obvious, if you have nominated a panel of arbiters from different countries but not specified the language of arbitration, it will be down to the panel to make the choice instead. This could leave some members of the tribunal at a disadvantage throughout the process.
Translating law is not simply a matter of understanding the words. You need an experienced translator who has expert knowledge of both countries’ legal terms, concepts and rules. Any modification to the law in the translated text can have disastrous consequences on the outcome of your dispute, as you may be basing your argument on completely ineffective legal terms.
If your contract needs to be translated into the agreed language of arbitration, there can be a temptation for parties to favour interpretations of its terms that will benefit their own argument. Not only is it important to apply the same level of legal and linguistic rigour to translating contracts as the relevant laws, but it also makes sense for both parties to agree to a single, neutral translation firm, so as to remove any confusion or accusations of manipulation.
If you expect to call witnesses that do not speak the language of arbitration, you will also need to find an experienced interpreter with a history of successfully working within a legal environment. An oral statement in arbitration is just as legally binding as a written statement, so it’s essential that your witness’s words are faithfully interpreted without any attempt to modify or ‘improve’ their meaning. If an interpreter’s work is successfully challenged by the other party, it can negatively impact the arbiter’s findings.
If you’re presenting translated documents as evidence within the dispute, you are opening them to challenge. Sloppy phrasing, inaccurate legal terms or misunderstood provisions can all serve to undermine your argument and your case. If you’re submitting reports from technical experts within your industry, you need to be sure your translations are both technically accurate and legally sound, which means getting a translator who is an expert in both areas.
Firstly and most importantly, you need excellent legal advice. A good legal firm will work with you to prepare a case strategy, conduct the necessary investigations and help you do the groundwork to prepare your arbitration case.
But that groundwork should also include the research and preparation of the right translation experts. If your first inclination is to find the cheapest option, the chances are you will not get the level of technical and legal proficiency that you need to build the best possible case. Take your time to find people with the subject matter expertise and legal qualifications to deliver true and accurate translations that are capable of withstanding expert scrutiny. The outcome of your dispute may well depend on it.
If you would like to learn more about how we help with legal translation, get in touch with one of our project managers today.