Overcoming Language Barriers international Arbitration

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As with any cross-border endeavor, language barriers can become a hurdle to overcome international arbitration and litigation. The dispute resolution clause in a contract may compel the client to arbitrate or litigate in a country other than their own. Arbitrators, parties, and even counsel may all hail from countries that speak different languages. Thus, a successful practitioner must give due consideration to the opportunities and challenges presented by the diversity of languages that may present itself in any given case.

As most litigants international arbitration and litigation become involved in the process due to a cross-border relationship, parties may have to seek counsel in foreign countries where a different language may be spoken. Since an attorney-client relationship must be premised on the ability of clients and their counsel to communicate clearly and effectively with each other, seasoned attorneys should do everything in their power to facilitate these exchanges. Ideally, at least one of the attorneys on a team should be fluent in the client’s language. Familiarity with the client’s native langauge will not only set the client at ease and make him or her more comfortable, but will also allow conversations to flow freely and efficiently. The ability of a client to explain something in his or her own language and be understood is essential in order to have a full grasp of the issues at hand so that everyone in the room has a clear picture of what the problem is and how it should be addressed.

Attorneys who speak the client’s language fluently should be used instead of translators for several reasons. First, translators can be an expensive resource. This expense is compounded by the amount of time needed by translators to do their job — everything a client or an attorney says must be translated, effectively doubling the length of any conversation and the fees incurred by both the translator and attorneys. Second, translators are laypeople who may not understand the intricacies of the law – something is almost always lost in translation, and the possibility that a crucial factor or minute detail that is relevant to the case is lost increases when the person translating does not have a legal background. In addition, an attorney will be able to examine documents quickly, identifying the legally relevant documents with much more efficiency than a layperson. Finally, the translator is a third party who may not necessarily fall under the umbrella of the attorney-client privilege. Minimizing or avoiding these pitfalls can be accomplished by attorneys fluent in the client’s language.

The use of counsel who is fluent or proficient in the client’s language carries many advantages. The additional efficiency, the increased comfort level of the client and counsel, and the benefit of increased understanding will all add value to the attorney-client relationship. Both counsel and clients should endeavor, whenever feasible, to speak the same language.

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