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The Legal Faults With Faulty China Translations

Posted in Basics of China Business Law

Your contract with your Chinese co-party is your key to a successful China venture and your lifeboat should the business relationship go awry.  That being the case, I am always amazed how often people essentially ignore the translation of their contract. A recent China Daily article, aptly entitled, “Translation errors cause disputes over contract terms,” nicely highlights the frequency and the sort of legal problems that can arise from bad translations.

Last year, for instance, the Shanghai Maritime Court heard a case instigated by obvious translation goofs (“drydocking” mistranslated as “tank washing” and “domestic service” misinterpreted as “domestic flights”) that a bilingual translator with even a basic familiarity with the contract’s subject matter would have caught immediately. Jin Xiaofeng, Judge of the Shanghai Maritime Court, explains: “There are loads of translation agencies in Shanghai and in the nation, but the quality is varied and professional translators that have expertise in a particular aspect are scarce.”

Our law firm has certainly seen its share of translation disasters over the years, including some that were clearly deliberate.  My favorite (which I have seen at least a half a dozen times) is to do an English language contract that says “A” and a Chinese language contract that says “not A.”  The Chinese language contract then makes clear that in any dispute it will prevail. The American party thinks it just signed a contract that says “A” but in reality it just signed a contract that says “not A.”  We have twice dealt with situations where a company came to us believing that its joint venture agreement required the joint venture entity to use the American company as the exclusive US distributor of the Joint Venture’s products, but the contract actually made the US company the exclusive distributor of the Chinese joint venture partner’s product. The problem in both cases was that the Chinese company joint venture partner had never and was not making the product for which the US company believed that it had become the exclusive distributor. Then there are the countless times a word like “must” is changed to “may.”

Bottom line: Good legal translators are incredibly rare. When it comes to selecting a translator for your contract, insist on experience and specialization.  The best solution — by far — is a truly bilingual attorney who works just for you.

We welcome your best lost-in-translation horror stories.

  • Jason Patent

    Friendly amendment to the “best solution”: two lawyers, one native Chinese, one native English, working together. Expensive, but one bilingual attorney is almost certainly going to be non-native in one of the two languages, which exposes you to risk.

  • http://larrysalibra.com/ Larry Salibra

    If you are doing business in China and signing contracts written in Chinese, you need to either be able to read the foreign language or have someone you trust who understands the agreement and is playing for your team read the contract.  Even better, if China is important to you, learn to read! There’s no excuse for being illiterate!

  • H Dutton

    In actual fact most China based law firms have lawyers who are proficient in Chinese and English (and other languages), and specific paralegals who check this work, in particular the larger and better established firms. Look for those who put out material in bi-lingual format or who provide legal updates from Chinese in English those are the good ones.

  • Damjan Denoble

    I disagree, Dan. Saying that only bilingual ATTORNEYS make good translators is elitist. Anyone can do legal translation. It’s all about having a feel for languages – and Chinese, with its emphasis on tones, and large number of characters with multiple meanings, is among the languages kindest to this sort of approach. 

    For instance, I just pulled up a standard contract thingy from Google. There’s something here called a “cross-default clause”. I don’t need to know what that means in English to translate it, but I don’t need to know. What I’m feeling here is that I can just take each of the words in the single term cross default, and separate them out so that I have “cross” and “default” and “clause”. When I translate each of the terms individually I get the following translation: “坏心眼的缺省短简”. And you know what, that probably means exactly what I think it means.

    • http://www.chinalawblog.com/ Dan Harris

      I like how you say “probably.”  The reality is that lawyers use all sorts of technical words and that is why there is such a thing as a technical legal translator.  I am not saying not to use technical legal translators, I am saying that they are incredibly few and far between.  Just as my law firm does NOT do technical legal translations for our clients on, for instance, their product manufacturing agreements, we sure as hell would not want a straight-up translator or a technical translator translating our contracts for our clients. 

  • Twofish

    >When I translate each of the terms
    individually I get the following translation: “坏心眼的缺省短简”. And you know
    what, that probably means exactly what I think it means.

    I don’t know if you are serious or not, but for the benefit of people that can’t read Chinese, your translation of “cross-default clause” is total gibberish.  The term you used to translate “cross” means “spiteful” (literally looking at someone with a bad heart).  The term you used to translate “default” means “unspecified” (i.e. when you save a file and don’t specify the file name.  The translation for “clause” means note and has nothing to do with a “contract clause.”

    So what you just wrote translates as “spiteful unspecified note.”  If you were being ironic and trying to show how without a skilled translator, you end up with gibberish, then you made your point.

    Now the correct translation for “cross default clause” is “交叉违约条款”  But even after you’ve translated it, your problems are just starting.  A cross default clause is a clause in a contract, that says that if you have contracts A, B, and C between two parties, and one of them defaults on A, then B and C are also in default.  The trouble with this is that if you take an American contract, and translate it into Chinese (and vice versa) it’s likely to have no legal force.

  • http://www.proz.com/profile/1254710 Phil H

    “a truly bilingual attorney who works just for you”
    And sometimes even that isn’t enough. I’ve worked on a deal in which Chinese and English contracts were prepared in parallel, but because they were large contracts, and existing templates were used, faulty translations slipped through in some clauses.
    The big problem that I see is that many words have both common meanings and legally defined meanings (“费” is a nice example – can mean fee, can also mean a kind of tax), and translators don’t always (a) know or (b) correctly convey the distinction. 

  • http://www.lisastewartlaw.com/ Carolina Lawyer

    This is good information to me, particularly since I know someone who is studying Chinese and I am encouraging her to consider law school.

  • Glen

    Translator here. I’ve commented on this subject before so I won’t repeat myself except to say that an experienced translator can be better and cheaper than a “bilingual” lawyer. It is worth noting that there are many good legal translators out there. The fact that you don’t know where to find them does not mean they are rare or somehow don’t exist.

    I am confident that many of the translation “horror stories” come from the “oh, just let the Chinese-speaking secretary/lawyer do it” mentality and a general ignorance about hiring language service providers. This is particularly the case when dealing with dodgy translation agencies who quote a high price to the translation buyer and then farm out the translation work to the lowest bidder. I see this all the time.

  • Damjan DeNoble

    Oh, wow, commenter who responded to my first comment. You’re right. I’m such a dummy, lolz! My original translation was gibberish, and if I’d read it back to myself slower than I did I probably would have caught it. Good job catching that silly translation 101 mishap on my part! I see what I did wrong now – the cross-default clause thingy should really be translated as a single concept and not as a series of split-up words. Still though, I don’t think that a legal education’s necessary for this sort of stuff. Most of the words are plain meaningy enough where one can just guess at it…imho. I get by with my lawyer friends fine when we’re talking about contracts, and based on their responses to my layman insights, I’m pretty confident that what I’m doing is right when I’m translating their documents….even if you’re not ;P. (besides, they all say that law school is a waste of time anyway).  But still, point taken about the “cross-default” provision being wrong. Haha! Lolz! I can’t believe I did that.

  • mottolab

    I’m a lawyer turned legal translator, and I can certainly relate to this story.

    A researcher friend from Peking University once remarked that the current
    generation of translators lag far behind their counterparts from 30 or
    more years ago. Nowadays many PRC translators don’t take pride in their jobs, and tend to think they can get away with substituting words without consideration for tone and context. Or they leave out content they don’t understand, hoping that the client will not notice the omissions. They frequently take on more than they can chew and bid for jobs which are beyond their depth. The client will not find out how bad the situation is until delivery. It’s an unregulated niche area where anything goes.

    When hiring a translator:

    1) Don’t blindly depend on references. Everything can be faked these days.
    2) Ask a few pertinent questions about the area of specialty, eg, how would you translate XX to English/Chinese?
    3) Never pay in full up front. To be fair, translators have to make a living too, but a reasonable amount of deposit should be sufficient to get the ball rolling.
    4) Make it very clear to the Chinese translator that you will not accept substandard work quality. Never automatically assume that your translator will do a professional job. Sometimes you do have to stress this point to set a “business-like” tone for your relationship.

    Good Chinese translators are rare.
    Good Chinese legal translators are almost non-existent.
    If you find a professional and competent Chinese legal translator, pay the unicorn well and cherish it.

  • http://www.languagealliance.com/ TranslationforLawyers.com

    Thank you for reminding us to choose legal translators- in any foreign language- wisely.

  • ChineseTranslationHelp.com

    Thank you for providing a useful and intelligent article on the topic of Chinese Translation. It is important to have a lawyer do the translation that is skilled in both countries. That is why we only do Chinese/English translation and human rather than machine translation by a China lawyer who has a Stanford law degree.

    –Jenny Z.