International business agreements can be highly profitable, but they can also spark disputes requiring international arbitration or litigation. Some firms specializing in international law may have bilingual professionals on staff. However, cross-border dispute resolution usually requires professional legal translation as well.
A typical case might center on a dispute 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 is the controlling language, the contract would be written in English. 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, almost all of the documentary evidence will be in French. This may include sales records, product information, instructions, and routine business correspondence.
Translating evidence in the discovery phase is sometimes treated as a purely administrative task, to be awarded to the lowest bidder. Don’t make this 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 legal reviewer to pick out important points. Evidence can be obscured or overlooked. Cases have been lost on the basis of bad translation. For example, 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 will not accept translations authored by counsel. In addition to the risk that bias could be introduced, legal translation requires specialized training beyond bilingualism. Many legal terms have meanings that even a native speaker cannot 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. In addition, technical expertise may be needed for some documents. For example, we’ve been involved in litigation projects that require translation by professional linguists who specialize in medical devices or IT. Focusing on costs rather than expertise could introduce serious errors into the process.
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 are not available for document review and triage, your translation partner can provide bilingual subject-matter experts for this purpose. Our team of linguists can work to identify key documents that require professional translation after the discovery phase.
In any large translation project, professional translators use software to identify sections and phrases that are repeated verbatim across multiple documents. The tools then auto-populate the target translations each time they appear. This saves time and money. Ideally, a lead translation team would work with the client to establish a term base 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.
Automated translation provides an alternate solution. This option can help when insufficient resources are available to address the expected volume of translation in the available timeframe. It may also help with costs and turnaround time. Certain language pairs are better suited than others for automated translation (AT) – for example, French and English syntax are similar enough that fairly high-quality translations can be produced via an automated translation process. That is not case for English and Chinese. Human translators should handle this language pair.
After a translated text has been automatically generated, we perform a light review as part of our QA process. For litigation, we strongly recommend human linguistic revision after automated translation. Our linguists with subject matter expertise will compare the source and target texts in order to correct any errors before the translation can be used in courts and/or certified.
We might recommend a mix of human translation (translation + proofreading, followed by in-house QA) for some types of content, and automated translation for others. In this instance, a project manager or lead linguist would triage the documents and make the judgment based on the content. They would also assess whether the file format was compatible with the AT engine. For example, handwritten notes would always require human translation.
Licensing and testing professional translators vary across countries. Some countries have a licensing system for “sworn” translators whose work has legal authority.
In the United States, a certified legal translation includes a written and notarized affidavit provided by the language service partner. This confirms the translation was performed by professionals and is an accurate reflection of the source. 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.
In Quebec, the Ordre des traducteurs, terminologues et interprètes agréés du Québec, or OTTIAQ, certifies translators, interpreters and terminologists. Through testing and professional development, OTTIAQ ensures that its members are qualified professionals. A certified translator is empowered to certify and stamp their translations of official documents. In all cases, working with a certified translator will ensure that you are partnering with a qualified professional who is also protected by a professional liability insurance.
With respect to possible bias in translated documents, the parties might agree that each side reserves the right to approve or reject the translations submitted as evidence by the other side. If a challenge is made, a third “neutral” professional linguist would evaluate the translation. 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 is necessary. Working with a professional language service partner for document discovery and translation is one ingredient for a cost-efficient resolution.