Post by Gordon BurdittHow is the language issue for contracts or agreements handled in
international treaties or international trade? Especially if there's
any possiility that the two copies in different languages mean
something different in a detail considered important. There will
always be the issue of which version is legally binding and with
two-party agreements it may be difficult to get a consensus on that.
- You have a very complicated proposed agreement, like a nuclear
test-ban treaty or an international trade agreement, where the
details are many, complicated, and considered very important by
both/all sides.
- You get the documents translated by professional-level translators
(all of them). That is, you get each translator to do the entire
document, then examine the descrepancies when it's translated
back. This is likely to be larger than the original agreement in
either language. Based on this, fix the original documents. Have
them translated back and repeat until there are no descrepancies
considered important.
- A single copy of the translated document on paper outweighs all
of the translators combined (that is, using a weight scale).
Its not a hard problem. The lawyers influence the parties
to agree on what language version should control and write
that decision into the agreement. If the agreement is that
both language versions must have equal weight, go to the
extra expense to make sure both accurately express the
agreement. That takes explanatory language sometimes,
but it's not hard - just expensive. Most often in my
experience, the parties don't like the extra expense and
delay. They agree to use the English version as legally
binding and the translated version for reference only.
The only exceptions I have experienced are agreements
with a government on one side or both. Government people
don't care about the extra expense.
The OP's formulation of his query is problematic, at least if one
takes it (I may use this expression) literally.
Intellectually/linguistically/formally, even when all the parties
negotiate intelligently and in good faith, one never can eliminate
"any [sic] possibility [sic[" that there may be some "detail" in a
translated document that a party would "consider[ ]important" but
which is disputed by other parties after all of them had said to one
another upon signing that they agree to their bi- or multi-party
treaty or other governmental or private party international agreement
and that (in whatever one or more languages it finally is
memorialized) it accurately states all the terms/conditions of their
agreement.
Even in recent times when parties especially at the international
governmental and Big Business level (e.g., in/by $-multigazillion oil
or coal mining and industrial development or large-scale and
multi-jurisdictional international leasing and shipping agreements)
have the intellectual and technological resources to attempt careful
language-to-language translation. It is inherent in such translation.
But this also is so for agreements negotiated and memorialized
entirely in English solely by English speaking parties; and one who
may have any doubt about this may resolve it simply by picking up any
volume of reported cases at random and reading some of the breach of
contract opinions therein.*
[ * This -- what some word or phrase "means" -- of course and
sometimes regrettably is so for statutes. Consider f'r'instance, the
U.S. supreme court's quite recent rulings in the Biosig case (the
parties, lots of lawyers, and several judges argued about what
"indefiniteness" means for Patent Law purposes and whether the phrase
"spaced relationship" is a "specification" which "distinctly claim[s]"
what the patented invention at issue was), or the Castleman case (does
the relevant language show that Congress "intended" that "force" or
"physical force" when used in a federal statute may be read imputed to
a state's family offense law labeled as a "misdemeanor domestic
assault to enable concluding, for federal law purposes, a man
convicted of such an offense was convicted of a misdemeanor crime of
domestic violence which thus forbids him from owning a gun), or the
U.S. v. Bond case (in which multiple opinions by different alignments
of judges argued about whether a distraught and vindictive wife, Mrs.
Bond, who used a chemical very dangerous to her husband's mistress and
which could and in part did cause temporary incapacitation which could
have caused the mistress' death was a chemical the came within the
statutory proscription of "any [sic] chemical which . . . can cause
death, temporary incapacitation or permanent harm to humans" and in
which Justice Scalia chided his colleagues for being dishonest in
pretending not to recognize that "it is clear beyond doubt that [the
statute in questions] covers what [Mrs.] Bond did" albeit that the
(apparently) same word can mean different things ("for example,
'draft' . . . [is] used in a definition of 'breeze' [and] we know it
has nothing to do with military conscription or beer"). etc., etc. ]
The "McGyver" concluding wisecrack indirectly points to the fact that
same words in English even when used in the same context having
different meanings. E.g., the phrase, "good enough for government
work" is reliably said to have come into use during WW II to denote
and connote governmentally contracted for services done and goods
fabricated under careful supervision or at least subject to rigid
inspection so as to insure resulting top quality for use in the
country's war effort. However, within a period not much longer than
twenty or so years, it became an expression prevailingly used jokingly
to connote barely acceptable or outright shoddy services or goods.
And illustrative of the accuracy of the "extra expense" portion of
that wisecrack: The European Union has been reported as spending more
than the equivalent of $400,000,000 annually for its own all-party and
intra-party translations; and, though frequently translating
from/among fewer languages, the U.N. spends a comparable amount. It
is unlikely that they outspend the U.S. military, State Dept., and
numerous other translation-requiring governmental agencies.
NONETHELESS -- although subject to at least one important omission --
the "McGyver" response is obviously sensible and accurate. This
undoubtedly is so especially these days when, by reason of what
frequently is referred to as globalization, increasing education, and
a range of technological advances, there are increasing numbers of
persons able to speak and idiomatically to understand and communicate
in multiple languages. Especially when the contracting governmental
or private parties are willing to pay for this.
But underscoring the essential correctness of what he said, "McGyver"
might have mentioned (I suspect that in the interest of brevity he
just forgot although he's aware of this) the common prevalence of
contractual provisions that are rarely overlooked by careful and
experienced drafters of governmental and private-sector international
agreements -- namely, provisions for arbitration or other dispute
resolution procedures and mechanisms to try to anticipate and provide
realistically practical answers to the very sorts of questions the OP
poses.
Carefully drawn and institutionally implemented use of such provisions
(e.g., by the establishment of international arbitration boards, or
involving the U.N. or other mediators, etc., bolstered by also
carefully drawn choice-of-law provisions) when used in conjunction
with or after the failure of post-signing good faith negotiation over
later arising controversies relegate what, abstractly stated, some
word or phrase (literally) "means" (although this is of course an
important consideration) to a secondary level since it is the mutual
commitment to abide by the _process_ used to resolve and by the award
or judgment that determine disputes that can become paramount
Unless, obviously, a party or alignment of parties decide to go to
commercial or actual militarily facilitated war.