Legal Translations in International Arbitration.

Legal Translations Play a Crucial Role in International Arbitration.

Translation is an essential component of international arbitration and should not be taken lightly, at the risk of compromising the award. Interview with Aboubekeur ZINEDDINE , sworn translator and founder of Trad'Zine - L’art de la traduction juridique , a legal translation agency, and Samantha Nataf , partner in the law firm of De Gaulle Fleurance & Associés.?

At what point in international arbitration is a translator required?

SAMANTHA NATAF: The language of the arbitration may be defined in the contract containing the arbitration clause or, if the parties fail to agree, by the arbitral tribunal or arbitration institution, at the beginning of the proceedings. A preliminary procedural hearing is generally held during which the parties determine, among other things, the rules for the production, translation and interpretation of documents.

In theory, the parties are obliged to translate into the arbitration language any and all documents submitted (including witness statements and expert reports). However, some flexibility is usually accorded, in particular to contain the costs of the arbitration. The parties may, for example, agree not to translate documents written in English, provided that this language is understood by the arbitral tribunal, the counsel and the parties. Or the parties may agree to translate only the relevant parts of the documents they intend to produce.

In rare cases, it may happen that the parties and/or the arbitral tribunal agree to conduct arbitration proceedings in two languages. This choice is not advisable, however, as it leads to a considerable increase in the costs and time-frame of the procedure. Lastly, it is important to specify that if the arbitral tribunal does not respect the parties' choice or its own decision as to the language of the arbitration, this could render the award liable to annulment.

ABOUBEKEUR ZINEDDINE: English is most often seen as a lingua franca in the business world and enables a large number of practitioners to conduct arbitrations – this concerns more than 75% of ICC arbitrations. The use of legal translation services is becoming increasingly common, however, with the need to select professional legal translators who are able to ensure that subtleties and implications are not lost between languages, both in written translations and in oral translations for interpreters during expert appraisals and hearings.

SAMANTHA NATAF: The translator may be called upon at any time during the process. During the written exchanges for the translation of pleadings, exhibits, written testimony and/or expert reports into the language of the arbitration. At the time of the hearing, concerning the examination of witnesses and experts, or even the presentations by counsel for the parties, in which case interpreters are involved. Once the award has been handed down, it must be presented to the state appointed judge to obtain recognition and enforcement (exequatur). If it is not in an official language of the country where the award is invoked, it must be accompanied by a translation. The same applies to the arbitration agreement.

ABOUBEKEUR ZINEDDINE: It should be noted that certified translations are mandatory for the service of arbitral awards and any appeals against awards, but also when a foreign award is subject to exequatur in France.

What is translated?

SAMANTHA NATAF: Documents submitted in the course of the proceedings (written submissions, exhibits, expert reports, written testimonies) and everything said during the hearings (pleadings, factual and technical expert testimonies), if the original language is not that of the arbitration, may be translated or interpreted, unless otherwise agreed by the parties and/or decided by the arbitral tribunal. With regard to documentary evidence, we emphasise that, as a general rule, it is permissible to translate only the relevant part of the document, provided that the parties agree. As regards hearings, the principle is the same, namely that they are conducted in the language of the arbitration. However, here again, some flexibility is allowed. Witnesses and experts often use an interpreter. Witnesses have the right to express themselves (both orally and in writing) in their native language.

ABOUBEKEUR ZINEDDINE: Translators may be involved at the documentary evidence stage, to assist counsel and the parties to access foreign language documents (in Arabic, Turkish, etc.), to understand their contents through sight translation (instant oral translation by the translator), to determine the priority, or even the need, for the translation of certain exhibits.

Is translation standardised?

SAMANTHA NATAF: There are no approved legal lexicons or other standards governing the admissibility of a translation submitted in the framework of international arbitration. Sworn translators become involved when there is a dispute over the translation of important documents. When a translator is called in, there is always the possibility of coming to an agreement with them on how certain terms are to be translated.

ABOUBEKEUR ZINEDDINE: Legal translators are used to working with their own glossaries and it is common practice to draw up specific glossaries for each case and have counsel and/or the parties approve them in advance.

Who bears the cost of translation?

SAMANTHA NATAF: The costs of translation or interpretation are generally borne by each party during the course of the arbitration proceedings. At the end of the proceedings, the arbitration tribunal can be asked to order the adverse party to reimburse them as part of the costs of the arbitration. It is customary for the unsuccessful party to bear all or part of the costs of the arbitration, which may include translation costs.

ABOUBEKEUR ZINEDDINE: There is also the possibility of having the arbitration funded by a third party financier, an investment fund, which can pay the fees of counsel and the arbitral tribunal. The funder takes a risk in the event of failure and is remunerated in the event of success, without exceeding 30% of the gains.

How is a translator chosen?

SAMANTHA NATAF: The translator is selected on the basis of their skills, linguistic of course, but also on the basis of their knowledge of legal terminology. Legal translation requires the ability to translate not only words, but above all legal concepts from one language to another. We also attach importance to the translator's responsiveness and availability. In addition, the translator or interpreter (the latter intervening during the hearings) must necessarily be impartial and objective in their translations. The arbitral tribunal may also require the parties to communicate the names and CVs of the interpreters in advance to all the participants in the hearing.

ABOUBEKEUR ZINEDDINE: Indeed, like the judge, the expert or sworn translator must be impartial. Judges and legal experts, including sworn translators, have the same duty of ethical conduct and impartiality. Note also that, in addition to language skills, legal knowledge and a good grasp of comparative law, translators must have specific and technical knowledge of their specialist field (energy, insurance, construction, science, etc.). For a certified translation, or to answer a specific question or a complex issue, the sworn translator can call on a specialist advisor. Article 278 of the French Code of Civil Procedure provides that an expert may take the initiative to obtain the opinion of another technician, but only in a speciality different from their own.

What are the preferred languages for translation?

SAMANTHA NATAF: English is still the most commonly used language in international arbitration. As international arbitration is the preferred method for resolving international disputes, proceedings involve parties of different nationalities, which can potentially involve translations from a wide range of languages. An increasing number of arbitrations involve Chinese, Arabic, Portuguese or Spanish-speaking parties and so translators or interpreters who speak these languages are often used.

ABOUBEKEUR ZINEDDINE: At Trad'Zine, there has been a growing demand in recent years for translations into German and Turkish. The same applies, given the geopolitical context, to translations into Ukrainian and Russian, since February.

Can a translation be challenged?

ABOUBEKEUR ZINEDDINE: The translations used in arbitration proceedings are normally free translations, i.e. not certified. This rule can differ depending on the country or the court. The arbitral tribunal may, however, order certified translations or note irregularities in free translations. In such cases, an arbitral tribunal may require a certified translation or make an unfavourable decision in relation to certain excerpts if the translation is deemed incorrect.

SAMANTHA NATAF: The parties remain free to contest a translation or interpretation, in particular where the meaning of a word or phrase is ambiguous but outcome-determinative. A sworn translator is generally used in this case, either on the parties' own initiative or at the request of the arbitral tribunal. The court may also draw adverse inferences from translations that it considers to be of poor quality. The translation of an arbitral award can also be challenged in the exequatur procedure before the state appointed judge. Article 1515(2) of the French Code of Civil Procedure allows the French judge to refuse a translation if the quality is deemed inadequate and invite the party to produce a sworn translation.?