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No China Translation. What Were You Thinking?

By Dan Harris on Posted in Legal News

The other day I was stressing to a client how important it is to have a lawyer translate any Chinese-English contract and to emphasize that, I told him of two very similar situations involving United States companies that had fallen way down on their translations. I am going to merge the two situations into one and explain.

United States company contracts with Chinese company to have the Chinese company make product for the United States company. United States company tells Chinese company that it is absolutely critical that the product be delivered by August so as to be in the stores for the Christmas season. United States company calls me in September asking for my help in forcing the Chinese company “to live up to the contract.”

United States company sends me the contract, written in both English and in Chinese, and it says the following:

  • Chinese language controls.
  • English language version says product must be delivered by August 10.
  • Chinese language version essentially says Chinese manufacturer will do its best to deliver the product by August 10, but that if circumstances prevent it from meeting that date, its only requirement is to try to get the product out as quickly as it can.

So I review the contract and then ask the American company whether they knew that only the Chinese language version was relevant.  One company knew this and the other did not. The company that knew only the Chinese language version was relevant told me they had used someone in their company who speaks Chinese to review the Chinese language version and she “must have missed” the difference regarding the delivery dates. 

Bottom Line:  If you are going to agree to a Chinese language contract, you have no excuse for not knowing what it says.   

  • OW

    I know what you are saying is really basic, but I have seen the very same thing and it always shocks me. I have even seen a U.S. company use the son of its Chinese counterpart to translate into English the contract between them. It’s crazy.

  • Angelo

    Can foreign companies sign English language contracts with suppliers that will be recognized by Chinese courts?
    I have been told that Chinese contract law is extremely difficult as the Chinese language is just plain vague at times and one sentence can be interpreted in multiple ways.

  • Kevin

    I hope this means that there’s a good reason I’m currently studying Chinese in Beijing in preparation for law school!

  • http://www.twitter.com/AvengerMoJo AvengerMoJo

    The price you have to pay to learn how to live or survive china.

  • http://www.east-west-connect.com Tait

    Why have a lawyer translate the contract instead of a translator?
    In general, somebody in any given profession is going to be a lot less accurate than a professional translator. I’m wondering if that is not quite the case with lawyers, who should also be very adept with the written word. In the legal field, is it also common for lawyers to do the translation?

  • http://www.chinalawblog.com Dan

    @ Angelo,
    English language contracts will be recognized by a Chinese court, but the Chinese court will use its own translator to translate it so if you want to know what your contract says BEFORE you are in a court in a lawsuit, it makes sense to have it be in Chinese if the disputes are going to be resolved by a Chinese court.

  • http://www.chinalawblog.com Dan

    Tait,
    You can have a non-lawyer translate, absolutely. However, in my experience, there are damn few good translators and only 1/10 as many good legal translators, which is a whole ‘nother skill entirely. The problem with we lawyers (all lawyers, including American and Chinese) is that we have all sorts of code words that are rife with meaning and non-lawyers don’t usually know them.
    It is not terribly expensive to use Chinese lawyers for these translations. We use a Chinese lawyer who works for us in China and then one of our United States trained lawyers (who typically wrote the contract) reviews the Chinese to make sure it all conforms to the English.

  • QIN

    if you have english-chinese contract, you have to agree that if two language have conflict, which is prevail.

  • Twofish

    Angelo: I have been told that Chinese contract law is extremely difficult as the Chinese language is just plain vague at times and one sentence can be interpreted in multiple ways.
    It’s no worse than English when it comes to these things (i.e. what does it mean exactly when someone it says that something “shall” happen).
    The way Chinese deals with this is the same way that English does which is to use specialized legal terms that are precise. The trouble is that “legal Chinese” can be very different from “conversational Chinese” in the same way that “legal English” can be very different from “conversational English.”

  • http://www.echinachem.com Mike Friedman

    If you do not speak Chinese but are going to sign a Chinese contract it is absolutely vital to go over it sentence by sentence with someone you trust who speaks Chinese.
    If you don’t understand every sentence of every clause you need to ask yourself why you are signing a contract when you don’t know what is in it.
    On the other hand, I have seen an appalling number of native English speakers sign English language contracts without reading them completely so I am not surprised that many people do not bother when the contract is Chinese.

  • Julian

    I want to became a legal sinologist. I publicated some paper on Chinese Public Administration, and I would like to develop my Chinese. (I am a continental lawywer). I think, this problem is interesting.

  • Anna S.

    It comes down to whether the company is willing to spend the money to do it right or not. We always use lawyers fluent in both Chinese and Mandarin and we don’t make a move without their advice.

  • Twofish

    One other thing. It’s a bad idea to have a non-lawyer do the translation, but you absolutely need someone in the firm who speaks Chinese look over the contract even if that person is non-technical. They won’t be able to tell you about the legal details, but having someone look over the contract will at least alert you if the translator is totally incompetent, and the contract makes no sense at all.
    Friedman: On the other hand, I have seen an appalling number of native English speakers sign English language contracts without reading them completely so I am not surprised that many people do not bother when the contract is Chinese.
    There are reasons for doing that. Sometimes there is indeed a standard form contract which everyone uses, and as long as you are assured that no one changed the contract, you can sign. Also in a lot of US consumer contracts, the contract terms are dictated by law, and so what you are really relying on is not the contract but the law around the contract.
    The idea that people should read every clause in every contract they sign is where legal theory conflicts with real world realities.

  • Glen

    “One other thing. It’s a bad idea to have a non-lawyer do the translation”
    Twofish:
    A professional translator who is experienced in legal translation will do just fine. Lawyers should not waste billable hours with a task that can be handled more economically by another professional. However, a final review should be done by a lawyer before signing since it is a legal document.
    Also, Chinese is no more imprecise than English. I have read and translated numerous well-written contracts in Chinese that employed concise and consistent terminology. If a contract is dodgy, blame the writer (a lawyer perhaps?!) not the language.
    Glen

  • http://www.cross-search.net Terry

    Having recruited many professional and highly specialized legal translators for one of the largest foreign law firms over the past 12 years. It is true that they are very rare and for that reason they make very good money. Some have legal education, some do not but they all have years of experience in this specialized area. And many good translators in other areas will say that they can do legal translation really can not !! And Chinese educated lawyers (associate level), even those with a foreign LLM are not always a good solution for a law firms translation needs.
    What Glen is says above regarding billable hours is also very true.

  • Jack

    Agree with Glen. Lawyers should not waste too much time on translating legal documents – the translation can be handled by well-trained translators. However, the bottom line is that the final versions should be reviewed by lawyers.

  • http://www.dilanchian.com.au Noric Dilanchian

    Dan
    I have a question about language precedence in a dual language contract.
    Assume: (1) a dual language (English and Mandarin) contract, (2) it is brief and is a short term copyright licence contract over some preliminary architectural drawings, (3) which imposed a pre-litigation alternative dispute resolution clause, and (4) imposes the law of China in a jurisdiction clause.
    In that context is there anything technically or practically wrong with making English the language to take precedence in interpretation. I accept that if it went all the way to a court there might be very real practical issues.
    Thanks.
    Noric

  • Yuanyuan

    My experience tells me that it is absolutely necessary to have lawyers to translate legal documents. The documents such as contracts or agreements translated by general translators usually do not make sense.
    Nowadays, it is more and more common for lawyers (esp. retired lawyers) to do legal translation as a part-time job, and the market is actually in shortage of qualified and responsible legal translators.

  • Sonia

    What you have to remember here is that not only the legal system and terminology have to be known by whoever does the legal translation but also a good use and knowledge of two different languages to mother tongue level.
    I am sure many translators might not be able to do legal translations in the same way as many lawyers will not be sufficiently qualified either because of a lack in language skills.

  • http://en.rosettatranslation.com.cn/ Rosetta Translation

    I own a translation agency with an office in Shanghai, and I can relate very well to this issue. There is clearly a cost-benefit analysis involved in which way you decide to deal with bilingual contract issues.
    Getting a lay person that works with you to look over a critical contract is definitely the cheapest option, but one can’t be surprised if that person will miss crucial details.
    My recommendation would be to use an established translation agency with solid credentials in legal translation to do the initial translation, and then to get a lawyer to proofread it. This serves the purpose of making as sure as possible that the legal translation is legally sound, while keeping costs down to a sensible level at the same time.
    Having the document translated by a law firm will cost (high) multiples of having it translated by a translation agency. In addition, as we know from having a substantial number of international law firms as our customers, the law firm will simply outsource the translation to a translation agency anyway. The only difference will be that they will slap an eye-watering margin on top of what they agency charges.