Translation For Lawyers

Translation Services and Workers Compensation in an Agricultural Setting

2010-03-14T08:03:42Z

We've blogged about translating employment contracts and foreign-born worker safety. Agricultural workers present a unique situation in the workers' compensation setting. For instance, many states do not require workers' compensation benefits or insurance for agriculture-related businesses. However, this is a field often regarded as one of the most hazardous industries in the U.S. Add to this that most of these workers - 2.5 million - are migrant and seasonal farm workers, typically unable to speak English.

]]> The nature of farm work makes these workers highly susceptible to injury. For example, most of the day is spent stooping to pick crops, working on ladders, carrying heavy loads, mixing, loading and working with pesticides. In terms of demographics, 78 percent of farm workers are foreign born, coming to the U.S. both legally and illegally. In most other industries, these sort of injuries can be prevented through training on proper techniques. However, as over 80 percent of all farm workers do not speak English as their primary language, they are unable to comprehend such training - if it's even offered. What this means is that even though Federal Law requires safety training on pesticide use be given in a language the employee can understand, this is more often than not simply ignored.

What is significant about this is this is now being used as a loophole. Although many states do not require workers' compensation coverage, an injured worker is able to sue for injuries under a tort claim with the lack of proper training as the grounds for negligence. Understanding this, it is essential that all pesticide training be done with a foreign language translation in the native language of the employee.

Medical Language Interpreters, Medical Translation/ Interpretation Services, and Medical Tourism

2010-03-09T10:54:39Z

Medical translation and medical interpreting services constitute just one of the facets of the ongoing health care debate. As debates about health care reform continue in Washington, D.C., many Americans participate in the popular trend known as medical tourism. Essentially, medical tourists are individuals who seek specific medical care or treatment in a foreign country - taking advantage of that country's lower costs. Popular destinations include Mexico, India, and Thailand. What many of these Americans fail to understand is the risks they take on in the case that something goes wrong.

]]> In the United States patients are fairly well protected by a strong medical malpractice torts system and well-established litigation process. This is not always so when dealing with a foreign jurisdiction - especially when a foreign language is involved. In summary, when a surgery takes place in a foreign country, the patient is bound to that jurisdiction and will, in all likelihood, be forced to rely on a foreign judicial system for compensation that is often far inadequate in comparison to U.S. standards.

One of the main challenges is navigating a foreign legal system - typically with the trouble occurring when trying to prove medical negligence. Not only do doctors and hospitals often simply refuse to provide the requested medical records, but even when they provide those records, an English translation from the given foreign language is required. Such jurisdictions as India and Thailand place great emphasis on medical testimony, meaning the patient's testimony will be given little regard - especially when it has to go through a foreign language translation. In order to protect themselves, anyone considering medical tourism should consult that jurisdiction's medical tort statutes and obtain a professional foreign language translation of them prior to deciding to pursue treatment.

Contact our language translation and interpreting firm to retain a medical language interpreter in any language, including Albanian, Amharic, Arabic, Armenian, Azeri, Belarusan, Bengali, Bosnian, Bulgarian, Burmese, Cantonese, Cambodian,Chinese, Chuukese, Creole, Croatian, Czech, Danish, Dutch, Estonian, Ewe, Farsi,Filipino, Finnish, Flemish, French, German, Greek, Hebrew, Hindi, Hmong, Hungarian, Icelandic, Igbo, Indonesian, Italian, Japanese, Korean, Kurdish, Lao, Latin, Latvian, Lithuanian, Malay, Mandarin, Marathi, Marshallese, Mongolian, Nepali, Norwegian, Nuer, Oromo, Polish, Portuguese, Romanian, Russian, Serbian, Shanghainese, Slovak, Somali, Spanish, Swahili,Swedish, Tagalog, Tamil, Telegu, Thai, Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, Vietnamese, etc.

Foreign Language Translation, Mexico, Translation Error and Service of Process

2010-03-08T09:20:57Z

We've blogged about professional legal translation services and the non-personal service of process in the age of Twitter. Professional translation and interpreting services continue to play an important role in transnational service of process which, in most cases, is governed by the Hague Service Convention.

Mexico joined the Convention in 1999, with entry into force occurring in 2000. According to accession protocol, Mexico designated the Directorate-General of Legal Affairs of its Ministry of Foreign Affairs as its Central Authority. This in effect designated this DG to receive and forward all request for service of both judicial and extrajudicial documents from other Hague Convention participating states. However, in doing so, Mexico rejected the alternative methods for serving documents as outlined in Articles 8 and 10.

]]> On its surface this seems simple enough. Yet, because of an error in the foreign language translation of Mexico's Article 10 declaration, it mistakenly appeared that the country's opposition applied only to Article 10's alternative methods of service when done "through diplomatic or consular agents". This qualification was only part of the erroneous foreign language translation. As a result of this Spanish into English translation error, courts in the United States cannot utilize alternative methods of service of process on Mexican parties and instead must file all requests for service through the Central Authority - which is in contradiction to the methods of the Hague Convention.

Source: Charles B. Campbell. No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention.

Language Translation Services and Estate Transfers to Non-Citizen Spouses

2010-03-03T11:58:44Z

Professional translation services and legal translation and court interpreting services are essential when dealing with a non-citizen spouse and global assets, as foreign languages and foreign laws often come into play.

]]> The basic rule, applicable to all U.S. citizens and permanent residents, is that all worldwide assets are to be included in the taxable estate. More so, under U.S. law, an unlimited tax-free transfer of property is allowed between spouses so long as the recipient is a U.S. citizen (marital deduction). However, this deduction does not apply when the recipient is not a U.S. citizen, even if they are a permanent resident.

In such a case, gifts in excess of $100,000 per year are subject to the federal gift tax. And at death, when the surviving spouse is not a U.S. citizen, they will not qualify for the deduction unless the transfer qualifies as a qualified domestic trust (QDOT). It is important to understand that this rule applies to all assets - regardless of where they are located- and to get professional translations of all the relevant documents.

Language Translation and Small and Medium Sized Enterprise in a Global Context

2010-03-01T11:37:35Z

Foreign language translation and legal translation and interpreting services play an important role in international business and financial transactions. Recently the International Accounting Standards Board released its book of accounting rules for SMEs.

This publication was highly anticipated because how a SME is defined will have significant legal and tax consequences, particularly as more and more SMEs go global - thanks to the advance in technology. The issue arose because every country had a different definition for SME and were essentially creating tax havens for these companies by writing definitions that could include even the largest corporations.

]]> An example of these discrepancies can be seen in the U.S., which defines an SME as having less than 1,500 employees, whereas in the U.K. such a company is considered rather large. In such a situation, a U.S. SME with a legal entity in the U.K. will have to deal with different levels of accounting compliance requirements.

According to the IASB rule, SMEs are defined as having two essential criteria:

They do not have public accountability, and,

They publish general purpose financial statements for external users.

In order to understand the accountancy requirements of a company, it is essential that one understand the law as it applies to SMEs in a particular jurisdiction. Using the IASB rule, one must obtain a foreign language translation of the statutes of incorporation and, based on these findings, incorporate the company accordingly.

Language Translation, Assertion of Privilege and Foreign Language Speakers

2010-02-22T13:00:28Z

We've blogged about legal translation services, legal translators and foreign language disclosures. In the case Seger v. Ernest-Spencer, Inc., 2010 WL 378113 (D. Neb. Jan. 26, 2010), the court held that a non-party waived its claim of privilege to previously-produced email documents and thus granted the defendant's motion to compel. The court based its decision on its finding that the disclosure was knowing and intentional - as the non-party failed to establish reasonable precautions to prevent disclosure and their lack of a timely claim to privilege.

]]> In determining whether a party waives its assertion of privilege, the court applied a five-step analysis to the "knowing and intentional" requirement:

The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,

The number of inadvertent disclosures,

The extent of the disclosures,

The promptness of measures taken to rectify the disclosure, and

Whether the overriding interest of justice would be served by relieving the party of its error.

However, if the party asserting privilege is a non-English speaker, there may be a question as to knowing and intentional. In such a case, the requesting party would be wise to have a foreign language translation for all document requests - thus limiting the likelihood that an assertion of privilege can later be raised.

Legal Translation Services, International Contract Cases and Motions to Compel

2010-02-17T17:16:34Z

Legal translation services play an important role in e-Discovery. In the case Accessdata Corp. v. ALSTE Tech. GMBH, 2010 WL 3184777 (D. Utah Jan. 21, 2010), plaintiff's (a U.S. company) motion to compel a German company to produce responsive third-party personal data - despite their objections that such a demand was in violation of German law - was granted by the court. The plaintiff's motion to compel the re-reproduction of previously produced electronic discovery was also granted as the defendant's original production failed to meet the requirements of Fed. R. Civ. P. 34.

]]> The Court based its decision on its finding that Defendant "failed to demonstrate the verity of its assertion" that the production was in violation of German law by failing to cite any particular provisions of the law.

Further, the Court found on its own that the German Data Protection Act allowed for such transfers of third-party information upon the satisfaction of such conditions as consent of the third-party. Finally, even if such productions were prohibited under German law, the U.S. Supreme Court has held that "such blocking statutes do not deprive an American court of the power to order a party subject to its jurisdictions to produce evidence even though the act of production may violate that statute."

In consideration of these rulings, it is essential that all references to foreign statutes be supported by foreign language translations of cited law. However, per the decision of the Supreme Court, even this may not be enough to block a request for discovery - which in turn makes the issue of jurisdiction more interesting.

Foreign Language Translation and Foreign Income and Taxes: Section 911

2010-02-15T17:12:43Z

We've blogged about translating financial double tax treaties. According to section 911 of the U.S. Tax Code, a qualified individual is able to exclude foreign earned income and housing costs amounts from gross income. 911(d)(1) defines a qualified individual as an individual whose tax home is in a foreign country and who is either a U.S. citizen with bona fide resident status in a foreign country for an uninterrupted period of an entire taxable year, or a U.S. citizen who during a period of 12 consecutive months is present in a foreign country(ies) for at least 330 days.

]]> Interestingly, an individual who qualifies for this exception must still file a tax return with the US.

In their individual return they must claim the exception and be prepared to document their foreign residency with proof. To do so, it is advised that all documents pertaining to one's foreign
residence - including rental agreements, business contacts, etc. - include a foreign language translation. Further, as the individual will likely be required to pay taxes in their country of residence, one should review any double tax treaties that may exists. This too will require a foreign language translation of the applicable laws.

Legal Translation and Jurisdiction in International Divorces

2010-02-11T13:48:07Z

We've blogged about foreign language interpretation of expert testimony in international family law cases and legal translation services for international child support enforcement.

]]> When comparing jurisdictions in international family law cases, issues of procedural matters should take precedent over such issues as rules and practices concerning the division of assets, maintenance, etc. This is because the rules and practices are determined by the rules of procedure - in other words you cannot get a favorable division unless you know the discovery techniques, disclosure obligations, etc. of that particular jurisdiction. For example, California requires real disclosure while Austria, Japan and other civil law countries require very little.

In general, in civil law jurisdictions, like many European countries, it is required that the parties present their own evidence in the court, but there are typically no procedures for a party to engage in self-directed discovery. In other words, the evidence is presented to the judge to sort out and decide whether or not to call any witnesses. More so, a litigant is not expected to disclose all their assets and is only expected to present evidence that supports only their position.

This could present a challenge to the litigant, especially when the jurisdiction operates in a foreign language. All the evidence will have to include a foreign language translation, a foreign language interpreter will have to be on hand and a foreign language translation of the evidence and testimony will also have to be prepared.

Translation Services and Unregistered Foreign Copyrights in U.S. Courts

2010-02-08T07:05:02Z

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

2010-02-05T12:37:45Z

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

2010-02-02T13:10:36Z

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

2010-02-01T13:46:46Z

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

2010-01-27T13:34:33Z

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

2010-01-25T13:32:15Z

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.