A central feature of international arbitration is the presence of counsel, parties, and even arbitrators who hail from several different countries. Frequently, more than one nationality is represented at the arbitral hearing, and with that diversity come a host of issues that are not immediately apparent — chief among them is the variety of different languages being spoken. Since a hearing will only be conducted in one language, it is often the case that many people in the room will need the services of both translators and interpreters in order to be present and fully understand the proceedings.
Although most cross-border business is conducted in English, this does not necessarily mean that everyone at an arbitral hearing will be fully comfortable with the English language. This is particularly true in a contentious hearing, where the need of counsel, parties, and arbitrators to fully understand and appreciate the nuances of testimony and documentary evidence is paramount. It is critical that everyone in the arbitral hearing be able to follow along and that practitioners take steps to ensure that as little as possible is “lost in translation.”
As this blog has discussed before, counsel who are bilingual and fluent in as many languages are possible are of immense value to the furtherance of a party’s claim. However, that does not solve every problem – if, for example, a hearing is conducted in English and the party hails from a Spanish speaking country, the party may need to testify in Spanish and counsel will not be able to interpret. Similarly, counsel will not be able to focus on the hearing and to simultaneously translate the proceedings for the party.
To minimize these issues, it would behoove parties to have translators and interpreters present at the hearing. Interpreters focus on translating oral testimony, so that a party who is more comfortable testifying in his or her own native language may do so – the interpreter would then translate that testimony to whatever language is being used to conduct the hearing. Translators focus on translating written documents, and can also serve as valuable “back-ups” who listen to the translation and can point out instances where something is being mistranslated or some meaning or connotation is not being conveyed. The translator can alert counsel who can correct course.
To that end, counsel and arbitrators should establish a set of procedures at the outset of an arbitration that address the problems inherent with interpreting. For example, it can be agreed that the stenographer or court reporter will only transcribe what is said in English. Arbitrators can also establish a process for “challenging” translations. If a party thinks that an interpreter mistranslated a sentence or that some meaning was “lost in translation,” that party can object. Interpreters on each side would then provide an opinion as to whether what was said was in effect what was translated, all of which can be entered into the record for the arbitrators’ consideration. In cases where contractual interpretation can turn on the nuances of language, such procedures are critical.
As any seasoned international practitioner will confide, language barriers can be enormous and interpreting testimony can be fraught with issues (another little discussed consequence of translating testimony is that the testimony will take twice as long because everything has to be said two times, once in each language). In order to minimize surprises and ensure as much control as possible over the message that is being conveyed as a party presents its case, practitioners should think about these potential issues and how to address them. The presence of bilingual counsel is very helpful but not sufficient, and translators and interpreters can be an invaluable resource international arbitration.