How to get the most from translation
To summarise, an arbitration case can get ‘lost in translation’ in at least three ways:
- time and money wasted for your client
- key evidence slipping through your fingers or past the arbitrator’s attention
- losing the entire case if bad translation ends up distorting key evidence beyond all recognition
Translation therefore deserves much more attention and respect than we are accustomed to giving it. Selection and testing of translators should be on top of our task list when a case takes off. My advice here would be to avoid ‘quote fishing’ from various language companies and going with the cheapest one. Language companies and translation agencies are intermediaries, who will employ freelancers at the cheapest possible rate, often without even verifying their credentials. Unless you have positive experience with a specific agency, it is far better and cheaper to identify an individual translator, test that translator yourself for language proficiency and understanding of the relevant legal or technical subject matter, and then use that translator throughout that case. There are many online resources where freelance translators can be contacted, and while translator selection may take a little time and effort at the outset, it will save vastly more time and effort at later stages.
The topic of translation also deserves a better place in inter-partes negotiations leading up to the first procedural order. For instance, it is worth considering whether joint appointment of a single independent translator or agency to translate both parties’ evidence is an option that may lead to significant cost saving and streamlining on the case, not least because of greater terminological consistency and avoidance of ‘massaging’ of translations by counsel, with resulting disputes.
Furthermore, there is much to be said for developing closer co-operation between the translation industry and the arbitration industry in general. For instance, major arbitral institutions could ally with those few translation agencies that employ vetted lawyer-linguists and provide document translation as part of their administrative services. The EU employs a large body of lawyer-linguists to ensure the consistency, accuracy and clarity of European legislation. It is difficult to see why consistency, accuracy and clarity of written evidence used in arbitration should not be equally important in dispute resolution, where parties’ rights and obligations largely depend on it. When dealing with translators, we must always remember that they are the people who will ultimately present most of our evidence to the tribunal. Therefore it stands to reason that we should select them at least as carefully as we select our witnesses or experts. As respondent’s lawyers in many cases have probably come to realise, saving on translation is – to put it mildly – a false economy.