An inherent challenge of cross-national business endeavors is that, once a deal or business relationship is in place, the actual terms of the contract will be carried out in different countries. Despite the fact that the trans-national agreement or contract was written in one language and that the terms of the agreement likely specify that such language is the “controlling” language in the event of a dispute, the execution of the terms of that contract will, in almost all cases, be carried out in different languages.
If the American company and Italian company in this example ever become embroiled in a contract dispute that relates, for example, to what the Italian company represents to its own customers about the American products, it is likely that most of the documentary evidence in this case will be in Italian. Both sides are left with a problem. A dispute between an American company and an Italian company with a governing contract that is written in English will almost certainly be tried, if not in an American court or arbitral forum, by an English-speaking judge, arbitrator, or tribunal. The challenge will be in how documentary evidence, which almost certainly be written in Italian, is presented.
Counsel for both companies would be well served by recognizing this circumstance at the outset and paring a plan as to how to address it. Presenting documentary evidence written in another language is a costly and time-consuming endeavor. Even if counsel have a team with lawyers who are fluent in both languages, judges or arbitrators will, in the ordinary course, reject translations authored by counsel. Where there is an issue as to how to interpret a particular clause or word, a lawyer may err on the side of the interpretation that most benefits his or her case. Presenting the judge or arbitrator with “dueling” translations is costly and does not always solve the problem – if there is a discrepancy, how does the judge choose which one is correct? Moreover, translating documents is a costly and time-consuming process.
Documents can be sent to professional translators or translating services to provide a certified copy in which the translator attests that he or she is fluent in both languages and that he or she has translated the document fully and accurately to the best of his or her ability. However, these services are very expensive and translation is a time-consuming process – even the most seasoned translators may only be able to translate three or four pages per hour in the best of cases. When the translation is of dense or technical documents, the process is much slower. In cases where there are hundreds or thousands of documents, the time and expense to translate documents may be enormous.
However, there are ways to mitigate this expense. This blog has already discussed what parties can do to minimize internal costs – having multilingual attorneys on the team at least expedites the process of internal review and understanding the case. This blog has also discussed what parties can do at hearings to present testimony when the parties, attorneys, and arbitrators all speak different languages. How then, does one address the problem of translating documents?
Parties can agree that each side will present whatever documents they want with a certified or uncertified translation – however, if a party is not satisfied or disagrees with the translation, the translation can be challenged, with the “loser” of the challenge to pay the costs of the challenge. This incentivizes parties to (1) produce accurate translations and (2) only challenge the translations that are worth challenging, either for their importance or because they are clearly inaccurate.
Another solution is for the parties to agree to translate certain documents – in cases where invoices or receipts are at issue, it rarely is necessary to translate every single invoice or every single receipt. Since most of those are forms, only one of the documents needs to be translated – the rest will have almost entirely the same information. And where they do not – for example, in the section of an invoice describing the product provided or the service rendered – the translator or party can create a spreadsheet that lists all the different iterations of what is provided along with its frequency. That way, one has the two crucial pieces of information – what do the invoices say and how often does each one say it – without the need to translate thousands of pieces of paper.
Finally, the most effective solution is simply to engage an arbitrator who is fluent in both languages – an arbitrator who has this ability may obviate the need to translate many of the documents. Of course, the arbitrator, in order to write an award, may need some documents to be formally translated with a certificate, but he or she can select those after the fact. If the arbitrator and both sides can all speak the same languages, the proceedings will be enormously streamlined. This option is certainly not always available, but when it is, parties should take advantage of it in order to save themselves significant time and expense.