Translation of a China contract is very important. I was reminded of this recently when I was reading an article written by another lawyer. His basic point was that language in contract is very important, and where two languages are involved, it was important that the “language” provision in each version should correctly state the same governing language. To be frank, anything else is just incompetence.
Good translation is difficult to get
Unfortunately the article said nothing relevant about the really key point in China contracts – translation of a China contract. Good translation of a China contract is important, but it is difficult to get. That is one of the reasons why we do all translation of a China contract in-house – to ensure accuracy. The other reasons is confidentiality, but that topic is for another time.
Why is it so difficult to get good translation of a China contract? There are a number of reasons:
- Legal translation requires particular skills – of course a high level proficiency in both languages is necessary, but so is an excellent understanding of legal terms in both the base language and the target language. Both are required for good translation of a China contract. Language alone is not enough – it is quite a different skill set from that required to translate poetry or a novel where the reader is sympathetic to the writer and trying to find the intended meaning.
- When the language of a contract comes under scrutiny, it is likely to be in an aggressive context where one party is trying to establish a particular meaning from the words used and the other is trying to deny it. Very often in a court or at arbitration. That is quite a different test for translation and the one that is really relevant for a China contract.
- Translation is a skill that is generally not highly regarded in China. There is a view that anyone can do it, which is another way of saying that it is unimportant work. A glance at the instruction book supplied with a Chinese made appliance, or local signs, will, confirm this. Very often translation is contracted out to language students at the nearest university for a pittance. The result is what you would expect.
- Good translation of a China contract is hard to do. It takes the skills previously mentioned, a lot of experience, and great attention to detail if an accurate translation is to result. Some expressions in English (or Chinese) are very difficult to accurately translate into the other language. Sometimes we have to amend the English (or Chinese) to facilitate accurate translation. Good translation of a China contract is not something that comes at bargain rates, but the price is well worth paying if it helps get a successful outcome.
Questions you might ask about translation of a China contract.
- What is the process followed for translation?
- Who does the translation?
- What legal experience and training does he/she have?
- Who checks the translation?
Each of these questions is important, but those regarding who does the translation and checking are particularly so. If translation is being contracted out, or being done by the other party, it is something to be concerned about. Translation should be done by someone able to talk directly with the person that drafted the contract so any ambiguities can be resolved and accurate translation obtained.
Checking is actually very important for good China contract translation because translators sometimes make mistakes that they cannot “see” because they created it. It requires fresh eyes. Checking translation is a bit like proof reading a document, but goes further because a good checker will pick up ambiguities in the translation itself. Perhaps needless to say, the person checking a translation should have superior skills to the original translator.
It is quite common in law firms operating in China for the person that drafts a contract, although a very competent lawyer, to have very limited language skills in another language. In these circumstances the drafter cannot check the translation so there must either be total reliance on the translator, or there has to be a competent checker.
Responses to the questions like “our translator is very experienced” or “we have been doing this for many years and never had a problem”, or “all of our lawyers are bilingual” simply do not cut it.
Your contractual rights and obligations deserve more than a “trust me” response and there should be a proper process for legal translation.
Some advocate that one language should prevail. Technically this is quite sound, but some practical realities need to be considered. Very few people are equally fluent in more than one language. A Chinese person will typically be more comfortable with Chinese, an English speaker, with English.
If the governing law and dispute resolution is Chinese law and courts, it is safe to assume that the Chinese language version is important, and will prevail. But that is not the end of it. Contracts have to be performed and it is important that both parties have accurate and authentic versions of the contract to guide their behaviour.
The only really sensible approach is to have good translation of a China contract so that both versions are equally authentic. The contract can state that one prevails, but that is not a substitute for good translation, and both versions actually being the same.
Take away points
Good translation of a China contract is essential if it is to be legally and practically effective.
- Good translation is not easy to get, and not every law firm can deliver it, but it is essential.
- Be prepared to ask questions about the process: who will translate your China contract, who will check it for accuracy, and their qualifications and experience.
- If you are not satisfied with the answers received it is probably time to seek an alternative source of contract expertise.
WX
© 2014 Graham Brown and Wei Xin. All rights reserved.
Tags: Contract mistakes, Contracts, translation, Unenforceable contracts