Recent Articles tagged language translation & interpreting for international litigation multilingual from LexMonitor

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.

Corporate & Legal Translation Services and International Arbitration

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 27 Jul 2008 04:53:57 GMT

Professional translation services play an important role in arbitration. Nearly every industrialized nation has an International Arbitration Act on their books. Although every nation's Act is unique, all are similar in purpose - to facilitate the mediation and arbitration of international commercial disputes. Further, all states who have International Arbitration Acts agree to specific formalities as part of the International Arbitration Convention.

A great deal of the Act pertains to the recognition and enforcement of foreign awards.

According to the Act, a foreign award is to be enforced in the same manner as a domestic award would be enforced. The Act further outlines the evidence required to have a foreign award enforced. Under the elements of the Act, a foreign award will be enforced when a party is able to produce:

An authenticated original award or certified copy thereof

The original arbitration agreement under which the award purports to have been made, or certified copy there of, and

When an award or agreement is in a foreign language, a foreign language translation of it into the language of the court enforcing the award. Further, the foreign language translation into the local language must be certified as being a correct foreign language translation by a sworn foreign language translator.

See, in general, Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NY Convention) and Inter-American Convention on International Arbitration (Panama Convention).

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.

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.

Deposition Interpreters and Preparing for a Foreign Language Deposition

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

When it comes to depositions involving non-English-speaking witnesses, the last thing an attorney wants is surprises – especially from their client. This is why preparing your client and all other individuals involved in the deposition is essential. Nowhere is this truer than when dealing with a foreign language speaking witness, who requires services of a deposition interpreter, in the context of a cross-cultural deposition.

When preparing for a foreign language deposition, keep these tips in mind:

Always make sure your client understands the role of the foreign language interpreter, particularly the fact that the foreign language interpreter is an officer of the court and thus cannot assist with his testimony, but has the ethical and professional obligation to interpret everything that is said.

Always use professional translators/ interpreters to ensure an effective record of the deposition. An experienced foreign language deposition interpreter would know exactly how to refer to oneself on the record in order to avoid confusion as to who said what.
Due to cultural differences, unique problems often arise during foreign language depositions. It would help to establish parameters with the opposing counsel on dealing with disagreements ahead of time. An example would be to have foreign language translation-related disagreements handled off the record or reserved for further review.

To read our earlier legal translation blog “Deposition Interpretation Services in a Foreign Deposition in U.S. Federal Cases”, click here. And to read “Interpreted Depositions, Attorney Ethics and Bad Behavior Towards Foreign Language Speakers”, click here.

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 Document Translation- the Other Side of Language Translation Process

translate@languagealliance.com (All Language Alliance, Inc.) — Fri, 04 Jul 2008 00:32:50 GMT

When talking about foreign language translation and interpretation and foreign languages in the legal sense, it is natural to think in terms of the act of translating a legal document or testimony from one language to another. However, when used in the context of international law, this concept also means translating and interpreting foreign laws from one legal language to another.

The law itself can be considered a foreign language – and when dealing with the laws of two countries this means not only translating foreign language texts but also the legal language, specific to that particular country. The words of a foreign law exist within the context of a legal culture that cannot be translated through the typical foreign language translation process. To translate them, one often needs the services of a foreign language translator who is also an expert in international and comparative law. Thus, this translator will be able to not only interpret the actual language of the law, but also understand the way that the law of one country works in comparison to another nation’s law.

For more information, see Deborah Cao’s Translating Law, published by Multilingual Matters Limited.

To read our earlier legal translation blog post "Translations, FTC and Foreign Language Complaints", click here.
And to read "French-English, German-English, and Hebrew-English Translations of Foreign Laws Available for Free", click here.

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.

Corporate Translation Services and International Arbitration

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 25 Jun 2008 16:26:00 GMT

Professional translation services play an important role in arbitration. Nearly every industrialized nation has an International Arbitration Act on their books. Although every nation’s Act is unique, all are similar in purpose – to facilitate the mediation and arbitration of international commercial disputes. Further, all states who have International Arbitration Acts agree to specific formalities as part of the International Arbitration Convention.

A great deal of the Act pertains to the recognition and enforcement of foreign awards.

An authenticated original award or certified copy thereof

The original arbitration agreement under which the award purports to have been made, or certified copy there of, and

When an award or agreement is in a foreign language, a foreign language translation of it into the language of the court enforcing the award. Further, the foreign language translation into the local language must be certified as being a correct foreign language translation by a sworn foreign language translator.

See, in general, Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NY Convention) and Inter-American Convention on International Arbitration (Panama Convention).

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.

Deposition Interpreters and Preparing for a Foreign Language Deposition

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 04 Jun 2008 05:34:49 GMT

When preparing for a foreign language deposition, keep these tips in mind:

Always make sure your client understands the role of the foreign language interpreter, particularly the fact that the foreign language interpreter is an officer of the court and thus cannot assist with his testimony, but has the ethical and professional obligation to interpret everything that is said.

Always use professional translators/ interpreters to ensure an effective record of the deposition. An experienced foreign language deposition interpreter would know exactly how to refer to oneself on the record in order to avoid confusion as to who said what.
Due to cultural differences, unique problems often arise during foreign language depositions. It would help to establish parameters with the opposing counsel on dealing with disagreements ahead of time. An example would be to have foreign language translation-related disagreements handled off the record or reserved for further review.

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).

Translations, FTC and Foreign Language Complaints

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 04 Jun 2008 04:40:00 GMT

Translation issues often come up in the context of FTC hearings. As the Fair Trade Commission (FTC) handles many cases involving foreign language elements, it has developed specific rules to govern its hearing. All cases involving “foreign elements” – or matters where the complainant, respondent, investigated party, applicant or party requesting official interpretation of the law is a foreign enterprise – are governed by these guidelines.

If a party has a complaint regarding a matter governed by the FTC, in order to file a proper complaint one must follow the guidelines. To file a complaint, the first step is to ensure the complaint is prepared in both the native language of the jurisdiction and a foreign language translation is provided into the language(s) of the jurisdiction where the transaction(s) took place, or the native languages of the foreign enterprise(s). The complaint shall include the name, age, gender, nationality, occupation and domicile of the filing party, along with the specific facts on which the complaint is being filed and evidentiary documents (with an accompanying foreign language translation as needed).

Guidelines for Handling Cases Involving Foreign Elements Nationals by the Fair Trade Commission by the 227th Commissioners’ Meeting.

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.

Document Translation, Attorney-Client Privilege and Foreign Companies in U.S. Courts

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 14 May 2008 15:11:34 GMT

Earlier we blogged about the role of foreign language translation in transnational litigation. When a foreign company is involved in U.S. litigation, regardless of whether it is against a U.S. company or not, there are several important factors to keep in mind. As an attorney representing the foreign company, of particular interest is the extent of attorney-client privilege. As both the U.S. and foreign country’s Code of Civil Procedure may apply – knowing when communications are privileged and to whom this privilege extends to is essential.

According to U.S. case law, at times a court will simply opt not to apply U.S. law to attorney-client privilege. However, the majority of courts will take a comity approach to the issue, which holds that if the communication touches base with the U.S., U.S. laws will be applied. On the other hand, if the communications relates to matters only involving the foreign country, that foreign country’s laws will be applied. Aktiebolag v. Andrx Pharmaceuticals, Inc., 208 F.R.D. 92, 97-98 (S.D.N.Y. 2002); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 520 (S.D.N.Y. 1992).

This determination, of course, depends on the communication being understood. For this reason, having a foreign language translation of the communication in question is essential to determining as to which country it touches upon. Furthermore, as many foreign countries are involved in highly technical litigation, all foreign language translations should be done by translators familiar with both the language and the industry.

To read our legal translation blog post "Foreign Language Document Translation, and Using Foreign Law as Evidence", click here.

Language Translation and Interpreting Issues- Standards of Review when Challenging Ability to Communicate with Court

translate@languagealliance.com (All Language Alliance, Inc.) — Sun, 11 May 2008 15:51:55 GMT

A non-English-speaking defendant’s inability to communicate with the court can lead to an appeal related to foreign language translation and court interpreting issues. As the majority of jurisdictions mandate that a foreign language speaker be able to use a foreign language court interpreter in order to communicate with – and understand – the court, an appeal will be based on some issue related to the lack of or adequacy of the foreign language translation.

The determining factor in deciding which of the two standards of review is applicable is whether or not an objection to the language interpretation was made at trial. If a timely and specific objection was made and is noted in the record, the courts will use an abuse of discretion standard. On the other hand, if an error is not objected to at trial, an appeal may still be sought using the plain error standard.

See Virginia Benmaman, Interpreter Issues on Appeal, Proteus: Newsletter of the Nat’l Ass’n of Judiciary Interpreters and Translators, Fall 2000, and State v. Santiago Calderon, 13 P.3d 871, 876 (Kan. 2000).