Reducing the Impact of Mistranslated Testimony in International Arbitral Hearings
Contemporary Asia Arbitration Journal, Vol. 9, No. 2, pp. 197-216, November 2016
32 Pages Posted: 6 Dec 2016
Date Written: November 30, 2016
Issues of language and translation do receive attention from the international arbitration community, but most of that attention has been excessively narrow. The majority of international arbitration legislation, rules of procedure, and practice guides only go so far as to recommend ways to avoid the need for translation as much as possible. Little effort is given to improving translation when it is needed. This is a mistake and a missed opportunity. Translation is often inevitable in international arbitrations, and translation inevitably changes meaning. Mistranslation is therefore not just a technical problem, but one with serious legal consequences. This article focuses on the stage of arbitral proceedings where mistranslations with serious legal consequences are most likely to arise: live interpretation of witness testimony. It seeks to educate international arbitration practitioners about the ways — avoidable and unavoidable — that translation changes meaning, describes the inadequacy of current law and practice to deal with these linguistic realities, and presents a series of practical steps that arbitrators and counsel can take. Adopting these recommendations will help to reduce the incidence of mistranslations and to blunt the legal impact of those mistranslations that do arise.
Keywords: International Commercial Arbitration, Language and Law, Translation, International Civil Procedure
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