How a Single Translation Shaped an Entire Arbitration: Lessons from Kiliç v Turkmenistan

Legal translation is often treated as a mechanical task. But in reality, it can have a profound impact on the outcome of disputes, particularly in international arbitration. A striking example is the ICSID case Kiliç v Turkmenistan, where the translation of a single clause shaped years of legal proceedings.

After reading Arsanjani and Reisman’s illuminating essay on the case in Practising Virtue [1], I revisited the underlying Decisions. What emerges is a textbook example of how high-stakes legal interpretation can hinge on translation—and how things can go wrong when linguistic nuance is overlooked.

The Clause at the Heart of the Dispute

The core issue revolved around Article VII.2 of the Russian version of the Turkey–Turkmenistan Bilateral Investment Treaty (BIT). Its English translation determined whether recourse to local courts was a condition precedent to arbitration. That question, in turn, had enormous implications for jurisdiction, timing, and the investor's ability to seek relief.

Three Troubling Translation Issues

As a legal translator, several aspects of the case stood out:

1. A Lone, Anonymous Translator

The Respondent relied on a translation apparently performed by a single individual. The translation agency’s cover letter [2] notes: "we translated to the best of the translator’s knowledge and ability"—a telling phrase that distances the company from the actual work. No mention is made of the translator’s name, background, or legal expertise. Given the treaty's importance, this lack of transparency is troubling.

While a linguistic expert was later brought in to support the Respondent’s position, the original translator’s qualifications in Russian-English legal drafting were never addressed. That absence speaks volumes.

2. An Expert in Linguistics, But Not Legal Language

The Respondent’s linguistic expert, though competent in general English, was not trained in law. Her reasoning for omitting the word “if”—that two conditionals rarely appear together in standard English [3]—overlooks an important point: legal English routinely uses structures like “provided that, if...” as part of layered conditional clauses [4][5].

Arsanjani and Reisman rightly emphasize that legal language follows its own conventions. In this case, relying on a generalist rather than a legal-linguistic specialist may have undermined the analysis.

3. A Focus on English Grammar Over Russian Meaning

Perhaps most critically, the discussion centered on English grammatical coherence, not the meaning of the original Russian clause [6]. That’s a missed opportunity. Legal translation isn’t about producing grammatically pleasing English—it’s about conveying the precise legal intent of the original text. A bilingual legal expert would have been better positioned to assess this.

The Cost of Rushing Legal Translation

In closing arguments, counsel for the Claimant highlighted how much time and money could have been saved if proper attention had been paid to the multilingual versions of the BIT [7]. Even the Respondent admitted that “speed appears to have been a primary concern” during treaty drafting, leading to “accuracy” taking a back seat.

That admission captures a wider truth: legal translation is too often treated as an afterthought—outsourced to anonymous individuals under tight deadlines. Yet as this case shows, shortcuts taken during translation can end up consuming years of litigation and hundreds of thousands in legal fees.

Final Thoughts

Kiliç v Turkmenistan is more than an academic curiosity—it’s a cautionary tale. It reminds lawyers, arbitrators, and treaty drafters that translation is not a peripheral task. When stakes are high and texts are binding, the cost of imprecision is enormous. Investing in qualified legal translators from the outset isn’t a luxury—it’s a form of legal risk management.

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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.