China Law Blog on drafting international contracts that work

Dan Harris, of Harris Bricken, writes China Law Blog – the latest entry answers a translator’s question on how a US common-law contract ‘translated’ into Chinese works in practice: Drafting International Contracts That Work.

I am a translator helping a U.S. company on its contracts and — to put it mildly — things are not going well. The deal I’m translating for has been running into a lot of trouble because the American law firm that wrote the contracts has written them in highly complex legalese. …

Harris’s approach is: if a contract between a US and a Chinese company is drafted in long-winded US style (78 pages with a lot of boilerplate and elevated language in one case), his law firm has lawyers create an equivalent contract in Chinese, both simpler to understand and likely to be understood and accepted by the Chinese courts.

The post also quotes a 2015 post on the Adams on Contract Drafting blog where Ken Adams interviewed Steve Dickinson of China Law Blog on the same subject. Dickinson says:

I should also add that Chinese lawyers have major problems interpreting U.S. and British common law contracts. Their standard approach is to guess at the meaning and then mistranslate and then work with the mistranslation, leading to disaster on all counts.

Although it is clear that the Chinese prefer a short English contract written in a simple style, I get the impression that the Chinese version is always going to take precedence, plain English or not.

The problems of using English as a language for international contracts are dealt with in wonderful practical detail in Triebel/Vogenauer, Englisch als Vertragssprache.

Bundesrat in English

The Bundesrat, sometimes called the Federal Council, Germany’s second house of parliament, has published texts describing itself in French and English. They can be downloaded as PDFs but are also available as small pocketable booklets.

Der Bundesrat (German)

The Bundesrat (English)

Le Bundesrat (French)

This came up on twitter yesterday and I wondered what its purpose was. I don’t know what its dissemination is either. I do know a similar booklet by the Bundesverfassungsgericht, similarly with a description of the building and artworks, though that may be largely online now. But do English- and French-speaking people visit the Bundesrat? What do I know?

In fact I then accidentally discovered that there is a Bundesrat app – in German though. So this booklet calls the Länder federal states but has to crosslink to “Länder” in the app.

We have argued about “federal state” in the past – is Germany not a federal state? then it can’t contain sixteen federal states, and in fact the text does get tied up in this connection. But I think it’s become standard and is understood. I am usually asked to write Land and Länder in British English texts, which would make the following sentence clearer.

The federal states participate in shaping federal legislation through the Bundesrat. 

I am not going to take time to analyse the translation in depth. I just skimmed it. It is very good English, a bit literal (perhaps non-native?) – a bit heavy reading, as is the German – the text is descriptive rather than analytical and probably intended for schools. I wondered if the following was a dig at the House of Commons (it comes up again later):

. Their debates are very fact-oriented – loud interjections or applause are rarely heard.

I did find a Germanism, apparently not in the German original but perhaps in an earlier version – my emphasis:

Mitglieder sind die Ministerpräsidentinnen und ­präsidenten und die Ministerinnen und Minister der Länder beziehungs­weise die Bürgermeisterinnen und Bürgermeister sowie Senatorinnen und Senatoren der Stadtstaaten.

The Bundesrat is made up of the Minister Presidents and ministers from the federal states, along with their pendants in the city states, the mayors and senators.

I imagine the translation is American English. I have never understood federal bills as a translation of Bundesgesetze – to me, a bill is a draft – but I suppose it’s US.

Zustimmungsgesetz – an Act of the Bundestag requiring the consent of the Bundesrat – is strangely abbreviated as consent law.

I do wonder whether the title of the brochure, “16 Länder – Ein Ergebnis” translated as “16 Federal States – one conclusion” is right. Maybe “one result”?

Thanks to Charles Eddy.

Divorce

When I first taught legal translation, as a subsidiary subject, I started with divorce. At the IFA in Erlangen and other Bavarian Fachakademien, the legal translation syllabus was based on work done for the courts by certified translators, which our students would be qualified as. Translating divorce papers was very common in those days, for example for US military personnel living in Germany. So expensive was the translation of documents needed by the German courts that there used to be divorce translation weekends, for some reason offered in Copenhagen. In fact after I had taught all the areas relating to court work, it was hard to fit contract translation into the timetable, since I thought it would be necessary to teach both contract law and contract language.

Those unfamiliar with divorce law sometimes thought that, since English law is different from German law, English divorce law must be very strange indeed. Not so: divorce had a similar history in both countries, going back to church law, to times when some kind of transgression permitted a petitioner to be given a divorce. The terminology was sometimes archaic even though the law had been reformed so that you were not punished financially or through harsh custody arrangements if you had committed adultery. English divorce law was reformed earlier than German and the law when I first taught it in 1982 and now in 2019 has unintended consequences. In German law a person can get a divorce after one year’s living apart; in English law it takes longer, so it is quicker to petition that the respondent’s behaviour is unreasonable (that is, that the petitioner cannot reasonably be expected to tolerate it). What is called no-fault divorce actually seems to be based on fault. This is not to say that divorce plays out as a pleasant and smooth process in practice even in Germany, but we didn’t talk about that. Nowadays you can read all this up on the Web so I don’t need to go into details. Anyway, all these many years afterwards, a divorce bill is going through the courts making divorce much easier – actually very easy indeed. New divorce law to end the blame game (Ministry of Justice – with a good summary of the current law)). The Divorce, Dissolution and Separation Bill has almost been passed. Of course, it is threatened by prorogation.

DE>EN translation problems: most frequently encountered are the terms related to the apportionment of future pension rights. Zugewinnausgleich, Gütertrennung, Gütergemeinschaft – marital property is not always straightforward. If you translate US documents into German, you have to be careful not to describe a decree absolute as rechtskräftig, which might wrongly suggest that the ex-spouses could remarry immediately (there may be a six-month waiting period). Not divorce but sometimes comes up in that context: Ehefähigkeitszeugnis – certificate of no impediment.

Unverzüglich

A colleague recently had the word unverzüglich in a legal text and wondered whether it mattered which of the many alternatives to choose.

Romain: prompt, forthwith, without delay

Dietl-Lorenz: (ohne schuldhaftes Zögern) without culpable (or undue) delay

I had wrongly remembered this as without unreasonable delay. Other renderings have been immediately and with all due speed

  1. I note that unverzüglich ist one of the words given a statutory definition (Legaldefinition) in the Civil Code. Here it is:

Bürgerliches Gesetzbuch (BGB)
§ 121 Anfechtungsfrist

(1) Die Anfechtung muss in den Fällen der §§ 119, 120 ohne schuldhaftes Zögern (unverzüglich) erfolgen, nachdem der Anfechtungsberechtigte von dem Anfechtungsgrund Kenntnis erlangt hat. Die einem Abwesenden gegenüber erfolgte Anfechtung gilt als rechtzeitig erfolgt, wenn die Anfechtungserklärung unverzüglich abgesendet worden ist.(2) Die Anfechtung ist ausgeschlossen, wenn seit der Abgabe der Willenserklärung zehn Jahre verstrichen sind.

Note the way a statutory definition is indicated. Further research reveals that this definition is regarded as applying even outside the Civil Code.

2. Does it then matter how precisely it is translated into English? Immediately seems to suggest more speed, but does that matter? Perhaps not, as long as your translation is for information only and makes it clear that German law prevails. However, without undue delay or without culpable delay does the job well.

3. Dietl wins over Romain here (as so rarely). Von Beseler has:

adj immediate, prompt, instant(aneous);
adv immediately, promptly, instantly; forthwith; at once; on the spot; without delay; at short notice, at a moment’s notice

The BGB meaning is missing, and when it comes to choosing between the other alternatives, legal translators are left to themselves. Nor is there any indication in Dietl of the source of the definition.

LATER NOTE: As Inge Noeninger points out on Twitter (see comment too) unverzüglich contains the word Verzug, delay or default, which is why translating it as immediately is avoided.

Rebecca Jowers ES>EN legal translation blog

I’m a bit late to recommend Rebecca Jowers because I don’t so often look at Spanish/English legal resources. But I have noticed that she is authoritative in advising on British as well as US usage.

An introduction: Why this blog? is the first post

I created this blog to share some of the translation pitfalls that I’ve encountered along the way, many of which were brought to my attention by fellow translators, my students of legal English, and law professors, attorneys, judges and other translation clients. It is intended to be a meeting place for translators, interpreters, lawyers and law professors for whom legal terminology is an essential element of their professional activities in both languages. Thus I welcome comments and suggestions from the many experienced colleagues in the profession who, as I am, are enthusiastically devoted to the study of Spanish-English legal terminology. Some of the areas I will be exploring include:
ES-EN legal terminology
Legal English for Spanish-speakers
False friends
Multiple meanings
Confusing terms
Common words with uncommon legal meanings
Expressing civil law concepts in common law terms
Español jurídico
Latinismos
Mistranslations? and
Terminology sources

The blog is called Léxico Jurídico Español-Inglés.


Rebecca has also published A Thematic Lexicon:ñhere is a review by Rob Lunn, whose blog I’ve also recommended in the past.

m/w/d DE>EN

I recently translated this (männlich/weiblich/divers) in a job ad as m/f/x. Other suggestions made by colleagues were more experimental. However, I am now seeing “m/f/d” (mainly on German sites?). And in the USA there is m/f/d/v meaning masculine/feminine/disabled/veteran.

There is an academic job site in the UK and I see they have Professor (m/f/d) International Management and Finance at the Technische Hochschule Deggendorf and Postdoc (m/f/x) at the Helmholtz Centre for Environmental Research in Leipzig.

Functional and formal equivalence in legal translation

Some TranslationTalk tweets this week reminded me of the terms functional equivalence and formal equivalence. I haven’t thought about these terms for years so I thought I would refresh my memory. (This is not a disagreement with the TranslationTalk tweets – they just reminded me of it).

When I started teaching legal translation, in the late 1980s, in those glorious days when no one much wanted legal translation at all, let alone for it to be taught, except, as it happened, the Bavarian courts, I was pleased to be recommended Martin Weston’s book An English Reader’s Guide to the French Legal System. I should add that legal translation had not yet been discovered as such a cornucopia for academic investigation – this was before Susan Šarčević’s New Approach to Legal Translation (which was hampered by having to take many of its translation examples from Canadian French, which is usually translated into Canadian Frenglish). We didn’t have internet resources in the 80s, whereas nowadays, at least for the German and English language pair, there are plenty of bilingual materials online.

Martin Weston had translated in the Secretariat of the Council of Europe in Strasbourg and was then Senior Translator in the Registry of the European Court of Human Rights. His book was originally a dissertation for a linguistics MA. He has a full bibliography of works on linguistics and translation theory; law; and dictionaries and lexicography.

I found Weston’s analysis of how to translate legal terminology very useful for teaching, though when I myself had a problematic term to translate, I didn’t run through his categories in my head but simply decided how close the German and English terms should be and how they would work in my context before I decided how to translate them.

Weston says that there are five possible approaches to translating ‘culture-bound’ SL expressions (incidentally it looks as if Newmark did something like this at an earlier date):

  1. nearest equivalent TL concept (départment: county)
  2. translate word for word (Académie Française: French Academy)
  3. transcribe the foreign expression, adding a TL explanation if necessary (croissant: croissant – needs no explanation)
  4. create a neologism: a) a literal translation / calque (université du troisième age: university of the third age) b) naturalization (informatique: informatics) c) use existing naturalization (départment: department);
  5. use an existing naturalization (which may be felt to be a native TL expression) (département: department,

Number 1 is functional equivalence, number 2 is formal equivalence.

Thus one could translate le Conseil des ministres as the Cabinet – to translate it as the Council of Ministers would have no equivalent in British culture and would conflict with the English title of the decision-making body of the European Community.

It’s for every translator to decide which type of translation works in English – in any case, many translations of terms have become standard now. I was surprised at the suggestion that a civil-law lawyer might be translated as barrister or solicitor, depending on their current role, because for me the terms are too specific to the English divided profession. Weston does discuss this at length. He seems inclined to accept barrister as a generic term. Discussing how to translate avocat (p. 103), Weston finds that the differences “are not such as to preclude the trnaslation ‘barrister’, however. At the same time, though, it should be noted that, just as many international organizations have official titles in more than one language, so European Community barristers, who are now allowed to practise in any member State, must use only their original official title (e.g. avocat, Rechtsanwalt, barrister), not a translation.”

When I wanted to use this list in teaching, I tried to replace the French examples by German ones, but it didn’t work very well. If you translate Kabinett as Cabinet, I suppose you have both formal and functional equivalence. But still it seemed a useful way of thinking about terminology – not that legal translation consists solely of terminology.

If I were to encounter the word Rechtsanwalt to translate for the first time today, I would have a number of dictionaries to consult and examples to consider. I probably wouldn’t have the time to research in great detail the precise differences not only between Rechtsanwalt and Notar, but between solicitor, barrister, attorney, lawyer, attorney-at-law. As Weston writes, “In a court context, avocat (de la défense) will often be translated as ‘counsel for the defence)'”. But I would be thinking: is this close enough functionally? would it confuse the English reader? how much support does the rest of the text provide to the intended meaning? how important is a precise rendering of this term in this particular text? who is going to read it? (my texts are never intended specifically for England and Wales, but for a number of readers, some of whom aren’t even in common law systems).

I agree with Malcolm Harvey on this (A Beginner’s Course in Legal Translation: the Case of Culture-bound Terms)

Malcolm Harvey Université Lumière Lyon 2, France


Authors are divided over the merits of this technique: Weston describes it as the ‘ideal method of translation’ (1991:23), whereas Sarcevic claims it is ‘misleading and should be avoided in the translation of laws’ (1985:131). Experience shows that learners tend to overuse this device, no doubt because it is aesthetically satisfying and allows them to apply newly-acquired knowledge about the TL system. This can cause them to ignore potential dangers: for instance, the term tribunal d’instance can produce anomalies such as ‘Magistrates’ Court’ or ‘County Court’, which sound distinctly odd in the French context. This temptation is shared by dictionaries and vocabulary books, which sometimes offer incongruous or erroneous equivalencies such as Garde des Sceaux = ‘Lord Chancellor’; avocat général = ‘Queen’s Counsel’ (Gusdorf 1993:85).

Apprentice translators should double-check both denotation and connotation before resorting to a functional equivalent.

This technique is appropriate for the translation of texts intended for the lay reader (novels, general newspaper articles, political speeches etc.) in contexts where scrupulous accuracy is less important than fluency and clarity. However, in a document intended for lawyers, the technique can be misleading. 

TranslationTalk: rotation curation account on Twitter

Readers probably know about Rotation Curation on Twitter (#rocur) – accounts where the person tweeting (curator) changes every week. If not, there is more in Wikipedia at Rotation Curation.

The account is usually linked to a place, as in I am Germany, but there is now a TranslationTalk account, and this week it has been curated by Paula Arturo, an Argentinian legal translator and lawyer – website translatinglawyers.com.

There are a couple of points raised by Paula this week that I would like to take up, and that will mean blog posts – I have written a couple of replies on Twitter, but I don’t feel they lead to a multi-person discussion and then they disappear into the ether.

I find it hard to follow long topics on Twitter because I don’t log in often enough to catch up with everyone I am following. Does anyone? So even if a tweet is presented as a thread, it still alternates with non-threads where the curator has a sense of continuity but many readers may not. There is an archive of TranslationTalk tweets here. This is helpful but also illustrates how broken-up the tweets are.

Using CAT tools for translation

I’ve been using computer-aided technology for translation since 1998. I use Transit, currently TransitNXT, from STAR. It’s a very good program and has many excellent features I am too lazy to learn about. It is also much hated by many translators. Anyway, it has helped my legal translation in many ways, but it has never saved time. Over the years I have often heard that such tools are useless for legal translation, but that was just something said by people who had no idea what they were talking about. My CAT tool lets me see source and target text at the same time and links to all the terminology I have stored (the STAR terminology database, Termstar, is the best I know).

Percy Balemans has a post on her blog in which she has gone to the effort of describing all the reasons she likes CAT tools (post dated February 2013 but still relevant today), so I am linking it here and can save myself the effort: The usefulness of CAT tools.https://pbtranslations.wordpress.com/2013/02/11/the-usefulness-of-cat-tools/

Austrian Civil Code explained

As mentioned by my commenter AMM under the last entry (thanks, Adrian), a team at Graz University are working on putting the ABGB into language which is easier to understand.

The Austrian Civil Code dates from 1811, and parts of it have not been changed since then, while other parts have been updated in rather formal language.

The ABGB (Allgemeines bürgerliches Gesetzbuch für die gesammten deutschen Erbländer der Oesterreichischen Monarchie) can be found here.The Graz project is online.

And here is an example showing a useful discussion of the language aspects of the existing text in sections 285 et seq.



Definitionen/Einteilungen von Sachen:





−  zT etwas willkürlich (Bedeutung hier oft noch nicht zu erkennen)
−  später Wichtiges fehlt, so zB die vertretbare Sache, die in § 983 (Darlehen) vorkommt, oder die verkehrsfähige Sache; eine Ergänzung von § 291 wäre insofern wohl wünschenswert
−  etwas genauere Regelung der unbeweglichen Sachen fehlt, nicht einmal die Grundstücke werden in § 293 genannt