Recent Articles tagged multilingual business translations & translators from LexMonitor

Legal Translation, and Asserting a Money Laundering Defense in the International Arbitration Setting

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 27 Jul 2008 15:55:22 GMT

Foreign language document translation and language interpreting play an important role in the investigation and defense of money laundering cases. Money laundering occurs when an individual or organization attempts to disguise the origin of proceeds which stem from a preceding criminal act. In other words, it is the act of transferring the proceeds made from a criminal act in order to conceal their criminal origin. In the setting of international commercial arbitration, the following elements of the offense of money laundering need to be established:

A predicate criminal offense occurred;
The predicate offense generated funds that were discretely or indirectly received by the claimant;
The claimant received such funds with knowledge that they derived from a predicate offense; and
The claimant nevertheless used such funds in the performance of the contract in arbitration in furtherance of efforts to conceal their illegal origins.*

In order to prevail on a money laundering defense, the mover must prove the funds used to perform the contract in arbitration in fact derive from a predicate criminal offense. The point of this defense is to have a contract held unenforceable. Holman v. Johnson (1775) 1 Cowp 341, 343. However, in order to both investigate and uncover the necessary proof of an incident of money laundering - along with filing the appropriate defense with the arbitrator, a foreign language translation of the evidence is required. Since the evidence involved in a money laundering case is often complex and technical, using a foreign language translator familiar with both the language and the subject is essential.

*See also: Winston & Strawn LLP. 2007: "Money Laundering as a Defense in International Commercial Arbitration: A Practitioner's Perspective." The International Comparative Legal Guide to International Arbitration 2007. Global Legal Group (UK)

Legal Document Translation, and Enforcing U.S. Judgments in Europe

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 27 Jul 2008 15:52:40 GMT

With the growing economic and political strength of the European Union, more and more transatlantic business is being conducted. This leads to an increase of transatlantic business contracts. Such contracts need to be translated into the language or languages of the European country, with which the U.S. company is conducting business. And, the more international business transactions there are, the more blurred the law that governs the enforcement of contracts becomes.

For example, if a U.S. company and a European company form an agreement and the European company breaches that agreement - what choices does the U.S. company have? If it gets a judgment against the European company in the U.S., will that judgment be upheld in Europe? What kind of foreign language translations are required? These are just some of the questions that surround the issue of enforcing a U.S. judgment in Europe.

According to general E.U. practice of the Member States, in order to have a judgment recognized in a European court, the judgment must be:

Final;
Based on a proper exercise of personal jurisdiction;
Based on proper service of process of the document initiating the lawsuit;
Based on proceedings that are fair;
Not violate the recognition state's public policy;
Not be based on fraud;
Not be inconsistent with certain proceedings or decisions involving the same cause of action between the same parties.

However, these are just the minimum standards - as each European country has its own specific requirements often pertaining to reciprocity and choice of laws. Clearly, in order to ensure all the above stated rules and country-specific requirements are met, a foreign language translation of both the U.S. judgment and the foreign country's law is of utmost importance. Without a proper foreign language translation of the judgment, a European court will likely not accept it for filing. Further, without services of a foreign language court interpreter, it will be impossible to show the above requirements have been met.

As a side note, special attention needs to be paid to the official language of the court in which the judgment will be filed. For instance, if a judgment is being filed in Belgium, depending on where exactly in Belgium, either its French language translation, or its Flemish language translation will need to be furnished. Similarly, various regional languages exist in Spain and Switzerland, to name only a few.

Translations for Lawyers & Litigators, and Foreign Regulatory Evidence in Products Liability Cases

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 27 Jul 2008 15:50:18 GMT

Earlier we blogged about language translation in the context of products liability claims in the presence of the English only warnings. Foreign language translation becomes even more relevant in product liability cases when the issue of foreign regulatory evidence arises...

The central issue is whether or not a foreign language warning for the same or similar drug used in a foreign country can be offered as evidence to show why the English based label in the U.S. is insufficient. The answer comes from the Rules of Evidence, particularly Rule 403 and relevancy. Rule 403 argument states foreign regulatory evidence is prejudicial in that it illogically concludes a U.S. company should be held to the same standard as that of companies in a foreign jurisdiction.

Although this seems like a logical argument, the courts have been surprisingly reluctant to agree. In fact, there is an entire body of decisions that have refused to find foreign regulatory evidence irrelevant as a matter of law. In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 552 (S.D.N.Y. 2004).

Essentially this means that some courts require foreign regulatory evidence to be either proved relevant or irrelevant before making a ruling. To do this, a foreign language translation will be needed and, typically, an expert witness who is able to translate/ interpret the foreign language will be required for testimonial evidence.

Language Translation & Interpreting for Attorneys, and Challenging Arbitrators under an International Arbitration Act

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 14 Jul 2008 23:57:32 GMT

Earlier we’ve blogged about corporate translation services in the context of international arbitration. Although the purpose of arbitration is to allow for the amicable resolution of business disagreements, sometimes a party will be left unsatisfied with the choice of arbitrator. Both the arbitration done under the Rule of Arbitration of the International Chamber of Commerce (ICC) or via internal (ad hoc) rules allow for a challenge. When raising a challenge, specific requirements must be met:

In order to challenge an arbitrator, one must demonstrate justifiable doubts as to his or her impartiality, professional competence or ability.

Applications for a challenge must be made within the International Arbitration Rules’ specified time period.

One of the leading grounds for a challenge is when the arbitrator shares a nationality with one of the parties. For this reason, most International Arbitration Rules require the arbitrator to be of a neutral nationality.

However, this requirement raises an interesting issue as to foreign language translation. Typically, under common rules like those of the ICC, English and French are the official languages of international arbitration and all official documents and testimony must be translated into one of these languages. Yet, in practice, much of the actual arbitration is done in the parties’ native tongues and thus involves foreign language translation from and into other foreign languages. When the arbitrator is of a different nationality and culture and speaks a different language, another layer of foreign language translation is added.

See 1976 United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules) and 1985 UNCITRAL Model Law on International Commercial Arbitration.

Professional Foreign Language Interpreting Services Prevent Medical Malpractice

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 14 Jul 2008 23:57:31 GMT

A very common occurrence in a hospital setting, particularly an emergency room, is the arrival of a non-English speaking patient. In such a situation the physician often struggles with trying to understand the symptoms and make a correct diagnosis. This becomes an issue when the patient can only communicate in a foreign language and no qualified foreign language interpreter is available. In the worst-case scenario, it becomes a medical malpractice problem.

Several cases have developed a theory of law that allows a patient who experienced harm because of the physician’s inability to effectively communicate with him to have grounds for filing a malpractice suit. Although this may seem like a lack of informed consent case, it typically manifests itself as a lack of proper treatment case. In other words, because of the doctor’s inability to communicate with the patient, the doctor failed to provide adequate medical care.

The simple solution is to use a medical interpreter to assist with communication and thus lead to proper diagnosis and treatment based on the patient’s actual symptoms. After all, professional foreign language medical interpreting services cost less than a potential medical malpractice judgment.

Language Translator’s Affidavit in Litigation, Court Proceedings & Arbitration Proceedings

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 14 Jul 2008 23:57:31 GMT

According to 37 C.F.R. 1.637 (2003) Rule 647, when a party relies on a piece of documentary evidence written in a foreign language, they must have the document translated into English and file an affidavit attesting to the accuracy of...

So what happens when both parties submit separate affidavits by two different document translators attesting to having submitted an accurate translation?

Essentially a battle of the experts ensues. This involves bringing in further experts to testify as to why one foreign language translation/ interpretation is more probative than the other. Common issues will likely include the credentials of the foreign language translator and why document translation by one translator/ interpreter is more credible than the other.

At the trial level, it is the trier of facts’ role to evaluate which evidence is more credible – or if the Affidavits provided by two different translators are equally credible. On appeal, an abuse of discretion standard will be used, meaning the decision to use one piece of evidence over another has to be found to be both in error and to have had a significant impact on the outcome of the case.

In general, see Stevens v. Tamai. U.S. Court of Appeals for the Federal Circuit (2004).

To read our earlier legal translation blog entry “Determining the Unavailability of Foreign Language Translator/ Interpreter to Provide Expert Witness Testimony in Person- Telephonic Evidence”, click here. And to read “Admissibility of Telephonic Expert Witness Testimony by Foreign Language Translator/ Court Interpreter”, click here.

Foreign Language Translation in Context of the Foreign Corrupt Practices Act

translate@languagealliance.com (All Language Alliance, Inc.) — Mon, 14 Jul 2008 23:57:31 GMT

As the Foreign Corrupt Practices Act (FCPA) is aimed primarily at international transactions, the issue of accurate foreign language translation becomes essential to avoiding legal trouble. According to the FCPA, it is a crime to, among other things, to bribe...

According to the statute’s anti-bribery provision, it is prohibited to give an i) act in furtherance of ii) a payment, offer or promise of, iii) anything of value, iv) to a foreign official or any other person while knowing that such a person will provide all or part of the thing of value to a foreign official, v) with corrupt intent to receive favorable treatment of some sort. The act holds that a person’s state of mind is knowing with respect to conduct if they have a “firm belief that a person is engaging in such conduct”.

Clearly, without a proper foreign language translation – by a professional foreign language translator who understands the foreign party’s language and culture – it may be difficult for you or your client to know whether a FCPA violation is occurring. More so, it will be unlikely that a court will allow one to hide behind ignorance of a foreign language as it is generally understood that it is the attorney’s responsibility to secure a proper foreign language translation.

To read our earlier legal translation blog entry “Foreign Language Translation and International Accounting Litigation”, click here. And to read “Certified Foreign Language Translation and the Sarbanes-Oxley Act of 2002”, click here.

English-Chinese and Chinese-English Translations and China’s Antitrust Review Process

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 09 Jul 2008 18:27:09 GMT

Earlier we’ve blogged about the role of professional translation services in the global economy. As China continues to develop as a dominant international business player, it is essential for the international lawyer to understand China’s antitrust review process, and the...

According to Chinese law, the antitrust review process is implemented in order to control merger compliance. Per Guidance Notes on Merger Control Filing for Acquisition of Domestic Enterprises by Foreign Investors, parties must follow the strict procedures pertaining to such matters as which party is responsible for filing, the timing of filing and what materials are required for proper filing. One of the most intriguing factors of the review process is the right for either or both of the merging parties to request a pre-filing consultation with a departmental leader.

The purpose of these consultations is to ensure that the parties understand the procedure and are able to complete a proper filing. However, to take advantage of this beneficial safety net, it is essential for the requesting party to have an English-Chinese language interpreter on hand, along with a foreign language translation of all non-Chinese documents. Therefore, to ensure compliance and to conduct a proper filing, all documents should undergo a professional foreign language translation before being submitted for consultation.

See Pend, Wu and Jiang John. 2007: “New Developments in Antitrust Review Practice.” Global Competition Review.

Language Translator’s Affidavit in Litigation, Court Proceedings & Arbitration Proceedings

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 06 Jul 2008 02:45:14 GMT

So what happens when both parties submit separate affidavits by two different document translators attesting to having submitted an accurate translation?

In general, see Stevens v. Tamai. U.S. Court of Appeals for the Federal Circuit (2004).

Legal Translations, Financial Translations, and Foreign Investments in the U.S.

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 04 Jul 2008 03:54:47 GMT

Part of finalizing a foreign investment in the United States involves satisfying the procedures set up by the Committee on Foreign Investment in the United States (CFIUS). Financial document translation, accounting document translation, and legal document translation of foreign language documents constitutes an important step in this process. The purpose of the CFIUS is to ensure that foreign investments do not have any national security implications.

According to the CFIUS process, any and all companies planning to become involved in the acquisition, merger or investment of a foreign business, must notify the CFIUS. The CFIUS will conduct a 30 day review of the proposed transaction.

Typically, foreign investments proposed to the CFIUS receive approval. Some high-profile cases that have undergone CFIUS review include the China National Offshore Oil Corporation’s attempted acquisition of UNOCAL, the Dubai Port World’s move to become operator of numerous U.S. ports and the NTT Communications’ acquisition of Verio in 2000.

The application process for the CFIUS approval is complex and involves submission of significant amounts of documents from both companies for review. Since foreign investment involves a foreign company, many pertinent documents will be in a foreign language. Being a U.S. government agency, the CFIUS requires that the supporting documentation be submitted in English. Thus, an accurate English language translation of all foreign language documents must be made. Further, it is beneficial to submit professionally translated and certified foreign language translation along with the original document.

Foreign Language Translation and International Conflict of Laws

translate@languagealliance.com (All Language Alliance, Inc.) — Thu, 03 Jul 2008 23:32:34 GMT

Earlier we've blogged about document translation in the context of foreign regulatory evidence in products liability cases and about the role of professional translating and interpreting services in enforcing U.S. judgments in Europe. As the business world becomes more and more global, there are increasing instances of conflict of law questions. Essentially, a conflict of law arises whenever a business transaction spans two different countries.

Each country has its own laws governing that type of transaction, and those laws are in conflict with each other.

For example, each nation has very different laws governing in the realm of Intellectual Property Rights. However, by its very nature, Intellectual Property Rights is a cross-border issue, meaning it is ripe with conflict of law possibilities. In the United States, the field of Intellectual Property Rights is heavily guided by the American Legal Institute’s Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes (ALI Principles). On the other hand, Japan’s legal system falls back on its traditional civil and criminal code. So while Japan tries to fit in a new area of the law into a traditional system, the U.S. uses modern-day legal principles, thus creating a potential area for a conflict of laws.

However, a conflict of laws is not inherent between these two systems. The ALI Principles will often fit into the Japanese civil or criminal system. Thus, the first step in any potential conflict of law case is to determine whether a conflict even exists. To do this, the statutory and case laws of both jurisdictions must be fully examined and, when possible, reconciled. This, of course, involves a foreign language translation. Next, if the foreign language translation reveals that a conflict does exist, one must determine what the conflict is.

Language Translation & Interpreting for Attorneys, and Challenging Arbitrators under an International Arbitration Act

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 27 Jun 2008 16:10:33 GMT

In order to challenge an arbitrator, one must demonstrate justifiable doubts as to his or her impartiality, professional competence or ability.

Applications for a challenge must be made within the International Arbitration Rules’ specified time period.

One of the leading grounds for a challenge is when the arbitrator shares a nationality with one of the parties. For this reason, most International Arbitration Rules require the arbitrator to be of a neutral nationality.

See 1976 United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules) and 1985 UNCITRAL Model Law on International Commercial Arbitration.

Translations and Foreign Regulatory Evidence in Products Liability Cases

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 18 Jun 2008 14:17:14 GMT

Document Translation and Enforcing U.S. Judgments in Europe

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 15 Jun 2008 20:44:33 GMT

For example, if a U.S. company and a European company form an agreement and the European company breaches that agreement – what choices does the U.S. company have? If it gets a judgment against the European company in the U.S., will that judgment be upheld in Europe? What kind of foreign language translations are required? These are just some of the questions that surround the issue of enforcing a U.S. judgment in Europe.

According to general E.U. practice of the Member States, in order to have a judgment recognized in a European court, the judgment must be:

Final;
Based on a proper exercise of personal jurisdiction;
Based on proper service of process of the document initiating the lawsuit;
Based on proceedings that are fair;
Not violate the recognition state’s public policy;
Not be based on fraud;
Not be inconsistent with certain proceedings or decisions involving the same cause of action between the same parties.

However, these are just the minimum standards – as each European country has its own specific requirements often pertaining to reciprocity and choice of laws. Clearly, in order to ensure all the above stated rules and country-specific requirements are met, a foreign language translation of both the U.S. judgment and the foreign country’s law is of utmost importance. Without a proper foreign language translation of the judgment, a European court will likely not accept it for filing. Further, without services of a foreign language court interpreter, it will be impossible to show the above requirements have been met.

Legal Translation and Asserting a Money Laundering Defense in the International Arbitration Setting

translate@languagealliance.com (All Language Alliance, Inc.) — Thu, 12 Jun 2008 15:38:40 GMT

A predicate criminal offense occurred;
The predicate offense generated funds that were discretely or indirectly received by the claimant;
The claimant received such funds with knowledge that they derived from a predicate offense; and
The claimant nevertheless used such funds in the performance of the contract in arbitration in furtherance of efforts to conceal their illegal origins.*

In order to prevail on a money laundering defense, the mover must prove the funds used to perform the contract in arbitration in fact derive from a predicate criminal offense. The point of this defense is to have a contract held unenforceable. Holman v. Johnson (1775) 1 Cowp 341, 343. However, in order to both investigate and uncover the necessary proof of an incident of money laundering – along with filing the appropriate defense with the arbitrator, a foreign language translation of the evidence is required. Since the evidence involved in a money laundering case is often complex and technical, using a foreign language translator familiar with both the language and the subject is essential.

*See also: Winston & Strawn LLP. 2007: “Money Laundering as a Defense in International Commercial Arbitration: A Practitioner’s Perspective.” The International Comparative Legal Guide to International Arbitration 2007. Global Legal Group (UK)

Professional Foreign Language Interpreting Services Prevent Medical Malpractice

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 06 Jun 2008 18:03:33 GMT

Language Translation and Contract Interpretation: Foreign Language as Trade Use Evidence

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 04 Jun 2008 04:44:46 GMT

Depending on the quality of the original, source text, foreign language translations may sometimes be perceived as ambiguous. According to the Law of Contracts, one method for interpreting the terms of an ambiguously written contract is to look at any terms of trade used within the document. This refers to any terminology that has a special meaning within a given trade that is the subject of the contract. However, this can become an even more complicated task when the terms of trade are in a foreign language.

The first issue the courts will look at is whether or not the foreign language term is made in the language regularly used in the respective trade sector. If so, then that term will be considered a term of use and, therefore, its meaning both will be considered to be understood and agreed upon by the parties. Once a foreign language translation of the term is completed, the meaning of the foreign language trade term will be read into the contract and given due consideration to usages and practices observed in the trade in question.

See Kamzimierska (1999 – 2000): Pace Review of the Convention on Contracts for the International Sale of Goods, referring to the Socks Case (1995).

Foreign Language Translation in Context of the Foreign Corrupt Practices Act

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 04 Jun 2008 01:38:59 GMT

Language Translation and Securities Litigation

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 18 May 2008 21:06:13 GMT

As more and more countries are opening up to Western trade, there is an influx of securities and related litigation matters, often requiring professional translation services. A prime example is China. As more and more of its products come to foreign shores, it is beginning to feel the pressure put on by a foreign legal system. In other words, when a Chinese product or company has connections to the U.S., it can quickly become snared in the U.S. legal system – which is an entirely different dragon to what China is used to.

A prime example is China Life, a leading Chinese insurance company that debuted on the New York stock exchange with a substantial public offering in 2003. Soon after its introduction, a class action lawsuit was filed against the company for failure to disclose financial fraud in its disclosure documents. Needless to say, that suit has had a profound impact on the expansion of Chinese companies in foreign markets.

Of course, this works the other way too. When a U.S. company goes public in a foreign country it, too, exposes itself to that country’s securities laws. So what does this mean to the securities practitioner? It means that foreign securities laws must be fully understood and analyzed – using foreign language translators familiar with the language of the foreign jurisdiction. The foreign language translation must occur as a preliminary measure ensuring a company’s compliance capabilities. Trying to conduct a foreign language translation after a suit is filed is too late.

See Sandburg, Brenda. “Culture Shock.” ALM, Litigation 2006.

Foreign Language Translation and International Accounting Litigation

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 18 May 2008 21:04:36 GMT

Like many professional specialties – including the law, computer science and medicine – the field of accounting has many terms that are particular to the accounting profession. Although people within the finance and accounting field understand these trade terms, these terms often do not translate easily outside the profession. This is particularly true when accounting documents need to be translated into a foreign language for transnational and cross-border accounting litigation.

Correct foreign language translation of international accounting documents plays an important role. In fact, it is an essential component to avoiding litigation. In other words, without a foreign language translation that properly conveys the meaning of accounting term(s), detrimental problems in financial statements can be created – which will eventually lead to litigation.

With this in mind, it is essential that the foreign language translators who translate your international accounting documents are familiar with the accounting terminology and field. Skimping on professional translation services is really not a good idea.

To read our earlier legal translation blog post "Legal Document Translations in Light of Royal Dutch Shell Global Class Action and Collective Settlement Agreements", click here.