Contract Translation Services for Attorneys
Professional legal contract translation services are vital for the practice of law. When drafting a contract in a foreign language one needs to start by determining whether the final contract will be in English, the foreign language (or both) and, if written in more than one language, which language will be the official language – and which will control if there is a conflict?
In such situations, a common mistake is to not think about these issues until the last minute and settle by adding basic boilerplate contract language stating that English is the “official language” of the contract–essentially acknowledging and dismissing at the same time the fact that the other party is not a native speaker of English.
The only way to ensure that a foreign language contract is enforceable is to ensure you have an accurate translation. However, that being said, it needs to be noted that it is difficult to enforce abroad judgments that are obtained in US courts. Thus, when working with multilingual contracts, you always have to start by considering where a dispute is most likely to be brought. For example, if you intend to have the dispute resolved in an arbitration forum where the arbitrators usually conduct proceedings in English, then it makes sense to have English as the official language of the contract. However, if the chosen forum is the local court in China because that is the only location where your manufacturer-seller has assets, then you should make Chinese the official language of the contract.
Of course when you do this your client (if they are a native English speaker) may not feel comfortable not being able to understand the official contract. In such a situation you can provide your client with a translation. However, it must be made clear that the English translation is created for reference purposes only–it need not even be provided to the other side, and it need not be signed by them. The single copy of a contract means that there is only one version of the contract that could potentially be in dispute.
The reason for this is that the contract law of most nations follows the familiar principle that there must be a meeting of the minds in order to establish a binding contract. If this does not exist, there is no contract. Each foreign nation has different rules of evidence regarding what is admissible into evidence. Many laws allow the use of parol evidence. For example, the United Nations Convention on Contracts for the International Sale of Goods allows courts that are applying it to consider “all relevant circumstances” of the contract–this would apply to both the original language contract as well as the translation. Use of parol evidence is even more applicable if the translation was signed by both parties and the translation addressed a subject or scenario that the original language appeared to omit.
On the other side of the coin is when a foreign language translation contract is used in a US-based litigation. All foreign language documents submitted in federal court proceedings must be translated into English. Federal Rule of Evidence 604 provides that “an interpreter is subject to the provisions of these rules relating to qualification as an expert.” The rule has been extended to translators, and therefore they can qualify as experts under Federal Rule of Evidence 702.
Some states have adopted specialized rules regarding translations, as well. For example, Texas Rule of Evidence 1009 provides a general outline regarding admitting and objecting to foreign language translations as documentary evidence. Translation of a foreign-language document is generally admissible so long as it is accompanied by a sworn affidavit from a qualified foreign language translator, stating the translator’s qualifications and that the translation is fair and accurate. There are also procedures for serving the document on the other party and objecting to the translation. For states that do not have these types of evidentiary rules, parties may refer to the Texas rule as a guideline for establishing a reasonable record about the proffered translation’s reliability.