Thoughts on legal translation: Kiliç v Turkmenistan (ICSID Case No. ARB/10/1)

Legal translation can have surprisingly significant effects on proceedings. After reading Arsanjani and Reisman’s essay on BIT interpretation issues in Kiliç v Turkmenistan [1], I was intrigued and wanted to read more.

 

Reading the Decisions, the importance of the English translation of Article VII.2 of the Russian version of the Turkey-Turkmenistan BIT quickly becomes clear, since the exact translation determined whether action in local courts had to be pursued before recourse to arbitration.

 

Reading about the case as a legal translator, some interesting points stand out.

 

1) Only one translator seems to have been involved in the Respondent’s initial translation of the clause. The translation company writes in their covering letter [2] that “we translated to the best of the translator’s knowledge and ability” - note that they do not write “we translated to the best of our ability”.

 

It is also interesting to note that the translator (or, to give the benefit of the doubt, translators), remains nameless. Whilst the linguistic expert called to comment on the issue was apparently chosen with some care, the translator’s level of experience with Russian and English language legal texts is not commented on.

 

 

2) The linguistics expert called does not seem to have had knowledge of law or of legal language. The reason she gave for removing “if” is that two conditionals do not usually occur together [3]. This may be true for standard English but, as Arsanjani and Reisman point out [4], does not apply in legal English where a formulation such as “provided that, if” is actually a fairly common proviso [5]. If a linguistics expert was to be called, someone familiar with legal linguistic norms would have been more suitable.

 

 

3) In any case this discussion focused on the clause’s “grammatical coherence” [6] in standard English rather than its meaning in the original Russian, which is surely the more pertinent issue. An expert in both Russian and English legal language, rather than an expert in theoretical linguistics, could have commented more convincingly.

 

 

What really stands out is how much time and money (to use the parameters that Counsel for Claimant mentions in his closing submissions [7]) could have been saved if more attention had been paid originally to the different language versions of the BIT. As Respondent admits, “speed appears to have been a primary concern” when the BIT was established in its various language versions, so “it is not surprising that accuracy in the documents sometimes suffered”.

 

Respondent hit the nail on the head here: in legal proceedings (and not just drafting of treaties), translation is often rushed last minute with an eye on the all-important ‘time and money’. But at least in this case, rushed translations by nameless translators had serious ‘time and money’ consequences later on down the line, taking up a large portion of the entire proceedings.

- G.M.

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[1] Mahnoush H Arsanjani and W Michael Reisman, “Babel and BITs: Divergence Analysis and Authentication in the Unusual Decision of Kiliç v Turkmenistan,” in Practising Virtue: Inside International Arbitration, edited by David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou, 407-425 Oxford: Oxford University Press, 2015.

 

[2] 4.20, Kiliç v Turkmenistan, ICSID CASE No. ARB/10/1, Decision on Article VII.2 of the Turkey-Turkmenistan Bilateral Investment Treaty, 7 May 2012.

 

[3] 9.15, Kiliç v Turkmenistan, ICSID CASE No. ARB/10/1, Decision on Article VII.2 of the Turkey-Turkmenistan Bilateral Investment Treaty, 7 May 2012.

 

[4] Mahnoush H Arsanjani and W Michael Reisman, “Babel and BITs: Divergence Analysis and Authentication in the Unusual Decision of Kiliç v Turkmenistan,” in Practising Virtue: Inside International Arbitration, edited by David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou, 416. Oxford: Oxford University Press, 2015.

 

[5] Bryan A. Garner, Legal Writing in Plain English, 129. Chicago: University of Chicago Press, 2013

 

[6] 9.14, Kiliç v Turkmenistan, ICSID CASE No. ARB/10/1, Decision on Article VII.2 of the Turkey-Turkmenistan Bilateral Investment Treaty, 7 May 2012.


[7] 9.25, Kiliç v Turkmenistan, ICSID CASE No. ARB/10/1, Decision on Article VII.2 of the Turkey-Turkmenistan Bilateral Investment Treaty, 7 May 2012.

Last modified on Monday, 18 December 2017 14:50
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