Translation For Lawyers tag:www.translationforlawyers.com,2008-07-09://3 2010-02-08T02:22:45Z Movable Type 4.23-en Translation Services and Unregistered Foreign Copyrights in U.S. Courts tag:www.translationforlawyers.com,2010://3.3936 2010-02-08T07:05:02Z 2010-02-08T02:22:45Z We've blogged about intellectual property translation, legal online translation and language translations in the context of probative value of foreign language Web site evidence. In the case Elsevier B.V. v. United Healthgroup Inc., S.D.N.Y. Jan. 14 2010, the plaintiff claimed... All Language Alliance, Inc. We've blogged about intellectual property translation, legal online translation and language translations in the context of probative value of foreign language Web site evidence. In the case Elsevier B.V. v. United Healthgroup Inc., S.D.N.Y. Jan. 14 2010, the plaintiff claimed that the provision of the Copyright Act requiring copyrights to be registered prior to infringement violated the Berne Convention and thus were preempted by the US Constitution.

]]> The issue revolves around the fact that many foreign publishers do not register their copyrights in the US - thus when an infringement occurs they are not protected under the Act's provisions allowing for statutory damages and attorney fees. According to the Court, the Berne Convention was not self-executing, meaning that in order for it to be binding Congress had to first adopt enabling legislation. Under this reasoning, Article 5 of the Copyright Act could not serve as the basis for a preemption.

Of course the main thing to take away from this ruling is that owners of a foreign copyright publishing materials in the United States should apply for a US copyright. However, the situation is not this simple. The easiest way to secure a US copyright on a foreign copyright is to file the original copyright with the US authorities. To do this, a foreign language translation of the copyright is required.

]]> Language Interpretation and Expert Testimony in International Family Law Cases tag:www.translationforlawyers.com,2010://3.3928 2010-02-05T12:37:45Z 2010-02-05T14:47:50Z We've blogged about legal translation services and legal interpreters in the context of admissibility and exclusion of foreign language testimony and about translators and interpreters as expert witnesses in federal courts. Expert testimony is frequently needed in international family law... All Language Alliance, Inc. We've blogged about legal translation services and legal interpreters in the context of admissibility and exclusion of foreign language testimony and about translators and interpreters as expert witnesses in federal courts. Expert testimony is frequently needed in international family law cases, and such testimony is often secured in cases concerning international child abduction, particularly in cases in which one parent is seeking to prevent the other from having overseas visitation with the child or relocating with the child to another country.


]]> However it is also useful in a myriad of other cases, including:

  • The factors that indicate that an individual is likely to commit an international child abduction
  • The degree of the risk of an international child abduction that is presented by an individual having specific risk factors
  • The sufficiency of terms of a proposed custody order in preventing a potential international child abduction
  • The likelihood that a foreign country will return an abducted child
  • The division of foreign marital assets
  • The discovery of hidden marital assets
  • The enforcement of foreign divorce and custody judgments.

When expert testimony is used in any of the above mentioned situations, it is essential that a foreign language interpretation is provided. This is essential not only in the foreign jurisdiction, where the language of practice is most likely something other than English, but also for the record in the home jurisdiction. In other words, all documents filed in the foreign jurisdiction should have an English translation for purposes of pursuing a similar action in the US.

]]> Professional Translation and Estate Taxes in an International Setting tag:www.translationforlawyers.com,2010://3.3901 2010-02-02T13:10:36Z 2010-02-02T14:15:32Z Professional translation services are important not only in the context of foreign-language wills and probate, but also for estate planning in an international setting. One of the major concerns of many Americans living abroad is the lack of an Estate... All Language Alliance, Inc. Professional translation services are important not only in the context of foreign-language wills and probate, but also for estate planning in an international setting. One of the major concerns of many Americans living abroad is the lack of an Estate Tax Treaty between the US and their country of residence. The Economic Growth and Tax Relief Reconciliation Act of 2001 gradually reduced the top tax rates and raised estate tax exemption levels through 2009.

]]> As of January 1, 2010 the estate tax and the generation-skipping transfer taxes (GSTT) have been reduced to zero. However, the statute also specifies that if no Congressional action occurs, in 2011 those taxes will return to their 2001 level.

What this means is there is no estate tax today, but next year the top rate will go back to 55%, with an exemption of $1 million. Legislative action is at an impasse. Late in 2009, a bill passed the House of Representatives that would make the 2009 estate tax levels permanent - meaning a top estate tax rate of 45% with an exemption of $3.5 million. However, it is far from certain the House version will meet Senate approval.

This puts all practitioners in a quandary: how do you give advice on estate planning if you do not know what the rates and exemptions are going to be? And, in the current situation, a foreign-based resident may end up paying estate taxes twice if, as is often the case, the two nations lack an estate tax treaty. In order to ensure you provide your client with sound advice, you should have a foreign language translation of all relevant tax codes, along with any wills, trusts or other estate-related documents.

]]> Language Translation and Pension Funds in the International Setting tag:www.translationforlawyers.com,2010://3.3900 2010-02-01T13:46:46Z 2010-02-01T17:04:07Z Professional translation services play an important role in managing pension funds. Several groups of multinational and multilingual companies are working out structures to pool the assets and liabilities of their different local pension plans within one single cross-border institution. One... All Language Alliance, Inc. Professional translation services play an important role in managing pension funds. Several groups of multinational and multilingual companies are working out structures to pool the assets and liabilities of their different local pension plans within one single cross-border institution.

One of the reasons in favor of a pooled pension institution relates to economies of scale, which can be realized when pooling pension assets and liabilities. Economies of scale offer more and better investment opportunities, reduction of costs and better negotiation positions in such areas as pension fund administration, asset management, statutory reporting, actuarial assistance and other management services.

]]> Another driving factor is the goal of better governance - global management and centralized operations with centers of pension excellence (for instance, in asset management) may enhance control and improve governance.

The optimal solution may be a combination of several vehicles, including cross border pension funds for some countries or some pension plans, local insurance contracts for other countries or plans, or mere asset pooling for some local pension funds. However, as these solutions combine various formats deriving from various countries, the issue of language will arise. For this reason, it is essential that you obtain foreign language translations of all relevant documents - and in all relevant languages - and file them in accordance with local rules and regulations.

]]> Language Translation and Billing the International Client tag:www.translationforlawyers.com,2010://3.3864 2010-01-27T13:34:33Z 2010-01-27T15:09:26Z One area that always seems to be a hotbed for malpractice suits is client billing. It's difficult enough when the client is within your jurisdiction - and it only becomes more complex when you bill clients across the globe. For... All Language Alliance, Inc. One area that always seems to be a hotbed for malpractice suits is client billing. It's difficult enough when the client is within your jurisdiction - and it only becomes more complex when you bill clients across the globe. For instance, if the client speaks a foreign language, then your bill should have a foreign language translation that clearly outlines all services, fees and charges. You should also become familiar with customary billing practice of the country your client lives in - which may require a foreign language translation of local laws and codes of ethics. For example, in many countries hourly billing is viewed as highly suspect.

The solution is often a mixture of creative billing strategies tailored to keep your international clients satisfied. Here are some ideas:

]]>
  • Contingent Fees: Although very popular in the US, often times they are illegal, or highly restricted, in foreign jurisdictions. The key here is to understand the local rules and regulations and to ensure the client comprehends the contingency fee terms. To do this, you should suggest the client obtain an independent foreign language translation.
  • Sharing Risk of Future Income Streams: This system means the attorney shares some risk, with the bulk of their fees coming from a positive result for the client. This is popular in corporate transactions where the attorney works on a project that - if successful - will serve as an income stream for the company. If the company succeeds, the attorney gets a share of the profits.
  • Fixed Fees: If using fixed fees, the services to be provided should be clearly agreed to prior to entering into a contract.
    • ]]>     Legal Translation and Recognition, Enforcement and Recourse Against Foreign Arbitral Awards tag:www.translationforlawyers.com,2010://3.3801 2010-01-25T13:32:15Z 2010-01-25T14:21:45Z We've blogged about the importance of professional translation services in international arbitration. Most countries have statutes that not only recognize foreign issued arbitral awards, but also provide the requirements for enforcement and, when needed, recourse. Take, for example, France. According... All Language Alliance, Inc. We've blogged about the importance of professional translation services in international arbitration. Most countries have statutes that not only recognize foreign issued arbitral awards, but also provide the requirements for enforcement and, when needed, recourse. Take, for example, France. According to its national code, Title VI - Recognition of, Enforcement of and Recourse Against Arbitral Awards Made Abroad or in International Arbitration, Article 1498 states:

    ]]> "Arbitral awards shall be recognized in France if their existence is proven by the party relying on the award and if such recognition is not manifestly contrary to international public policy. Such awards shall be declared enforceable in France by the enforcement judge under the same conditions."

    In order to enforce an award, the law states that one must produce the original of both the award and the arbitration agreement or copies of these documents. More so, "if such documents are not in the French language, the party shall produce a (foreign language) translation certified by a (foreign language) translator registered on the list of experts." (Article 1499)

    This requirement for a foreign language translation of the arbitration award and agreement is fairly typical in national codes. However, the requirement for what qualifies as a certified foreign language translation varies from country to country. Before you submit your proof of award and agreement, be sure the foreign language translation satisfies that particular jurisdiction's translation certification requirements.

    ]]>     Language Translation and Authenticating a Foreign Website for Evidence tag:www.translationforlawyers.com,2010://3.3851 2010-01-21T13:40:48Z 2010-01-21T17:14:24Z We've blogged about legal translation services in the context of authenticating foreign government documents, and about language translation and the probative value of foreign website evidence. Typically, authenticating documents for evidence is rather straightforward. However, when the document is a... All Language Alliance, Inc. We've blogged about legal translation services in the context of authenticating foreign government documents, and about language translation and the probative value of foreign website evidence. Typically, authenticating documents for evidence is rather straightforward. However, when the document is a screenshot of a given website or - as often is the case now - a social media site like Facebook, attorneys are running into significant challenges. This is even more the case when the screenshot is of a foreign-based website or in a foreign language.


    ]]> It is now standard practice to conduct an Internet search as part of preparing for a case - which itself may require a foreign language translation of search terms and keywords- and then present their findings with screenshots. However, specific steps must be taken to admit the evidence at trial - with the main hurdle being authenticity.

    To frame the challenge, take the statement from St. Clair v. Johnny's Oyster & Shrimp, Inc. 76 F.Supp 2d 733-75 (SD Tex 1999), "Anyone can put anything on the Internet... (It's) one large catalyst for rumor, innuendo and misinformation... It is voodoo information."

    To satisfy FRE 901(b)(1):

    • Be prepared to answer 1) what was actually on the website, 2) does the exhibit or testimony accurately reflect it, and 3) if so, is it attributable to the owner of the site?
    • Factors often considered include: length of time data was posted on the site, whether it remains on the site for the court to verify, whether the data is of a type ordinarily posted on that site or similar sites, whether the owner of the site has elsewhere published the same data, and whether the data has been republished by others who identify the source of the data as the site in question.
    • If the site is foreign based, the attorney should be prepared to present the evidence as to authenticity in both its original form and with a foreign language translation.
    ]]>     Document Translation Services and Successful International Arbitration tag:www.translationforlawyers.com,2010://3.3800 2010-01-20T13:24:46Z 2010-01-25T15:44:16Z Professional translation services play an important role in arbitration as it is becoming increasingly common for parties to submit disputed international contracts to arbitration. The reason for this is that arbitration offers several distinct advantages over litigation in foreign courts... All Language Alliance, Inc. Professional translation services play an important role in arbitration as it is becoming increasingly common for parties to submit disputed international contracts to arbitration. The reason for this is that arbitration offers several distinct advantages over litigation in foreign courts - namely the ability to select the place, language, decision maker and procedure for the arbitration.

    ]]> In international arbitration the parties can pick the language in which they would like the proceeding to be conducted. Unlike in litigation, where language is determined by the place of litigation, the place of arbitration does not predetermine the language, and parties can thus agree on a language that is most convenient.

    Likewise, the parties can also agree to have the arbitration conducted in two languages. However, it should be noted that it is more common for the parties to agree on one language while expressly allowing documents to be filed in two or more languages with foreign language translations.

    ]]>     Language Translation and the Impact of National Law on International Arbitrations tag:www.translationforlawyers.com,2010://3.3803 2010-01-19T14:49:18Z 2010-01-25T14:22:18Z Although by agreeing to arbitration the parties involved are free to determine the procedure applicable to their arbitration, national laws will nonetheless have a significant impact on arbitral proceedings. In fact, all arbitral proceedings are governed by a codified procedural... All Language Alliance, Inc. Although by agreeing to arbitration the parties involved are free to determine the procedure applicable to their arbitration, national laws will nonetheless have a significant impact on arbitral proceedings. In fact, all arbitral proceedings are governed by a codified procedural law (lex arbitri), which is often not the same as the law governing the parties' contract. Usually the parties do not choose lex arbitri and instead select only the law governing their contract. When this occurs, the lex arbitri will be the law of the country in which the arbitration occurs.

    ]]> To understand the specifics of the local arbitration law, one will require a foreign language translation. However, most local laws determine the scope of judicial intervention in the arbitration proceedings, along with the appointment of arbitrators, party autonomy and the ability of arbitrators to grant provisional measures. More so, most countries have enacted laws favoring international arbitration by limiting legal procedural requirements and allowing for court intervention where it is helpful rather than disruptive of an effective arbitration process.

    ]]>     Language Translation Services, Unfair Competition Law and Intellectual Property tag:www.translationforlawyers.com,2010://3.3802 2010-01-15T15:42:51Z 2010-01-15T16:53:21Z Language translation services come in handy in the context of unfair competition law. Unfair competition law generally exists to punish practices that involve the use of means which are considered incorrect or reprehensible. This being the case, many of the... All Language Alliance, Inc. Language translation services come in handy in the context of unfair competition law. Unfair competition law generally exists to punish practices that involve the use of means which are considered incorrect or reprehensible. This being the case, many of the practices punished by unfair competition law have a direct impact on intellectual property rights. For example, acts of imitation that lead to confusion in advertising through the use of identical or similar distinctive signs not only raise intellectual property rights questions, but also unfair competition issues.

    ]]> However, when the intellectual property question involves an issue that spans across borders, the IP rules become less clear. For example, if one company in Country A has a reputation for being associated with a particular slogan and a company in Country B uses that same slogan but in a foreign language translation, is there an issue of intellectual property rights? That question is best answered by "it depends".

    When facing such a situation, one may want to examine the jurisdiction's unfair competition laws. In a globalized world, competition knows no boundaries, and if the two companies are
    selling similar products or services, the advertisement may raise an issue of unfair competition regardless of a foreign language translation. The key will usually be providing expert
    testimony - usually by a foreign language translator - who is able to testify to the two slogans' cross-cultural similarity.

    ]]>     Translation/ Interpretation Services and Mergers and Acquisitions Under EU Competition Law tag:www.translationforlawyers.com,2010://3.3776 2010-01-13T16:07:28Z 2010-01-13T17:24:29Z According to the European Commission - who has authority over competition law (Regulation 139/2004 and Art. 83 TEC) - competition law requires that firms proposing to merge must first gain authorization from the relevant government authority. Although firms are allowed... All Language Alliance, Inc. According to the European Commission - who has authority over competition law (Regulation 139/2004 and Art. 83 TEC) - competition law requires that firms proposing to merge must first gain authorization from the relevant government authority. Although firms are allowed to go forward with the merger without authorization, they face the prospect of demerger should the merger later be found to 'lessen competition'.

    ]]> When deciding whether or not to take this chance, a firm should base their decision on the test the EU would employ: "whether or not a concentration would, if it went ahead, significantly impede effective competition... in particular as a result of the creation or strengthening off a dominant position."

    Further, according to EC law, a concentration exists when a "change of control on a lasting basis results from (a) the merger of two or more previously independent undertakings, (b) the acquisition...if direct or indirect control of the whole or parts of one or more other undertakings."

    However, due to the multiple languages used within the European Union, more often than not understanding the exact parameters and consequences of a proposed merger or acquisition remain murky.

    For this reason, a foreign language translation of all documents and laws must be carefully undertaken before a decision to go forward with a deal.

    ]]>     Foreign Language Translation and International Attorney Malpractice tag:www.translationforlawyers.com,2010://3.3774 2010-01-10T15:19:56Z 2010-01-10T18:48:16Z Legal document translation services play an important role in the context of international attorney malpractice. In a recent case a major international law firm had a negligence claim brought against it by a property consultancy company relating to advice it... All Language Alliance, Inc. Legal document translation services play an important role in the context of international attorney malpractice. In a recent case a major international law firm had a negligence claim brought against it by a property consultancy company relating to advice it gave to a client, Northern Rock, on fraudulent property transactions. The claim sought contribution to the £1.6m settlement the company paid to Northern Rock over alleged negligence by the firm on three property transactions.

    ]]> The original claim was for negligent advice that failed to prevent an alleged fraud by a third party in property deals where the bank advanced a total of £6.75m for 15 flats in the London area. As a result of the alleged negligence, Northern Rock claimed a loss of £2.1m.

    One of the many issues complicating this matter is the issue of international law and international business. Many of the companies involved, including the firm, are international institutions operating across borders and - as in this case - across legal jurisdictions. Whenever an attorney or firm practices across borders they become exposed to various standards in attorney ethics. To best protect oneself against a foreign malpractice case, it is essential they become familiar with the requirements of that jurisdiction. If the foreign jurisdiction operates in a foreign language, then the code of attorney conduct should have a foreign language translation done before any work is taken up.


    ]]>     Online Legal Translation and Issues in International Mergers and Acquisitions tag:www.translationforlawyers.com,2010://3.3775 2010-01-08T13:59:00Z 2010-01-08T14:55:01Z Due in part to a recent increase in globalization, there has been a boom in mergers and acquisitions occurring on the international scale and across borders. In fact, according to the Securities Data Company, over $672 billion in cross-border deals... All Language Alliance, Inc. Due in part to a recent increase in globalization, there has been a boom in mergers and acquisitions occurring on the international scale and across borders. In fact, according to the Securities Data Company, over $672 billion in cross-border deals are announced annually - meaning international mergers and acquisitions represent one in four of all M&A activity.

    ]]> Unlike their domestic counterparts, international mergers and acquisitions differ significantly and present numerous pitfalls for the unseasoned practitioner. For example, key issues found in international mergers and acquisitions include reconciling the tax and accounting systems of different jurisdictions, resolving differences in corporate culture and governance, dealing with cross-border communications issues and confronting some of the basic logistical difficulties of any international transaction.

    One of the keys to successfully navigating through these potential pitfalls is foreign language translation. For example, in order to successfully reconcile various tax and accounting systems, one must first understand the different systems. To accomplish this, a foreign language translation is needed. The same can be said for communications and cultural differences.

    ]]>     Legal Translation and International Child Support Enforcement tag:www.translationforlawyers.com,2010://3.3773 2010-01-07T13:11:30Z 2010-01-07T15:19:26Z We've blogged about professional translation services and having a foreign divorce recognized in a U.S. court. When one parent is living in a foreign country, finding a way to enforce a US child support order overseas can be a challenging... All Language Alliance, Inc. We've blogged about professional translation services and having a foreign divorce recognized in a U.S. court.

    When one parent is living in a foreign country, finding a way to enforce a US child support order overseas can be a challenging prospect. Under Section 459A of the Social Security Act (42 USC 659A (1996)) the Department of State and the Department of Health and Human Services have the authority to enter into agreements with foreign countries for child support enforcement. In general, under the law a parent can be required to pay child support by income withholding, and overdue child support can be collected from federal and state tax refunds. Liens can be placed on property and the property itself may even be sold with the proceeds used to pay child support arrearages.

    More so, if a person arrears in excess of $5,000, their US passport may be denied.

    ]]> When dealing with a case of international child support enforcement, the first step is to see if there is a reciprocal agreement between the foreign country and the United States. If there is, the terms of that agreement will be listed in both the foreign language and be accompanied with a foreign language translation. If no such agreement exists, then one needs to turn to the laws of the foreign jurisdiction to see what their child support enforcement measures are. To accomplish this, a foreign language translation is necessary.

    ]]>     Language Translation, Foreign Language Markings and Revoking Wills tag:www.translationforlawyers.com,2009://3.3682 2009-12-24T13:49:41Z 2009-12-24T19:05:12Z We've blogged about professional translation and interpreting services, undue influence and foreign language-speaking individuals' testamentary capacity. In a recent Ohio case, a testator drew an "X" through ten lines of the first page of the will, then marked out the... All Language Alliance, Inc. We've blogged about professional translation and interpreting services, undue influence and foreign language-speaking individuals' testamentary capacity. In a recent Ohio case, a testator drew an "X" through ten lines of the first page of the will, then marked out the X, struck out the amount of bequest of money and wrote other writings and multiple signatures on the will between and around the typed text of the will, but left the original signature untouched.


    ]]> According to the court, as a matter of law the testator did not revoke the will. The court reasoned its decision on the fact that, according to state law, a will cannot be partially revoked by physical act and the acts in this instance indicated at most an intention to revoke the general bequest but definitely not the entire will. Horst v. Horst, No 22993 2009 WL 3068261 (Ohio Ct. App. Sept. 25 2009).

    But what if the writings and markings were in a foreign language? The first step would be to get a foreign language translation of the subsequent added information. As to any writings, the foreign language translation would be fairly straightforward. However, as to any foreign language markings, things could get complicated. Markings often carry cultural significance and therefore any translation of them should be done by someone versed in the language and culture of the testator. Based on the foreign language translation of the words and markings, one can better understand the testator's intent and, based on that, apply the relevant law as to revocation.

    ]]>