Translation Issues in Handling Foreign-related Litigation and Arbitration cases in China
Time:2024-03-31 16:21:37Source:Click:次
In China, when lawyers handle litigation or arbitration cases involving foreign matters, it's common for them to translate relevant foreign-language documents into Chinese. Sometimes, they also need to provide translation services for foreign parties participating in court hearings. Although translation might seem like a mere procedural or technical matter, mishandling it can significantly impact the case's progress or even the outcome of the trial.
It's understood that for disputes over contracts or related economic matters, resolution can occur through either litigation or arbitration procedures. One significant difference between foreign-related litigation and foreign-related arbitration lies in whether there are mandatory language requirements for the proceedings.
1. General Provisions on Language Translation in Litigation and Arbitration Procedures
Due to the private nature of arbitration, the Arbitration Law of the People's Republic of China does not impose mandatory language requirements for arbitration. Instead, it leaves it to the discretion of each arbitration commission to establish language rules in their respective arbitration rules. As mentioned earlier, the principle of party autonomy is a fundamental principle of arbitration, which not only manifests in the parties' mutual consent to arbitration but also in the entire process of arbitration, including the choice of language used.
Taking the Arbitration Rules of the China International Economic and Trade Arbitration Commission (2015 Edition) as an example, Article 81(1) states:
If the parties have agreed on the language of arbitration, that language shall be used. If the parties have not agreed on the language of arbitration, Chinese shall be the language of arbitration. The arbitration commission may also determine another language as the language of arbitration depending on the specific circumstances of the case.
From the above provision, it can be seen that the parties not only have the right to choose the arbitration institution but also the language of arbitration. The arbitration tribunal respects the language chosen by the parties for arbitration. Only when the parties have not agreed on the language of arbitration will the arbitration tribunal determine the language of arbitration at its discretion. In the foreign-related contracts I have reviewed and drafted, there are often provisions concerning the language of arbitration, including agreements to arbitrate in China with English as the language of arbitration.
On the other hand, the procedure of litigation is different. As litigation procedures reflect a country's judicial sovereignty, courts in general require the use of the national language in litigation. Article 262 of China's Civil Procedure Law stipulates:
The people's courts shall use the common language and script of the People's Republic of China when hearing foreign-related civil cases. If a party requests translation, it may be provided, and the cost shall be borne by the party requesting it.
This means that even if all parties involved in a litigation case are proficient in a foreign language (such as English), and even if the judges hearing the case happen to be fluent in that foreign language, the litigation must still be conducted in Chinese in the actual court proceedings.
2. Regulations on Written Translations
Due to the private nature of arbitration, the regulations concerning the translation of written documents are relatively flexible. Taking the Arbitration Rules of the China International Economic and Trade Arbitration Commission (2015 Edition) as an example again, Article 81(3) of these rules states:
When the arbitration tribunal or the arbitration commission deems it necessary, parties shall provide corresponding Chinese translations or translations in other languages for various documents and evidence submitted.
From the above provision, it can be understood that in arbitration, parties are not always required to translate their written materials into Chinese or other languages unless deemed necessary by the arbitration institution. For instance, if the document is in a minor language and cannot be understood by the arbitrator or other participants without a translation, then a translated document may be required.
In contrast, unlike arbitration, the translation of foreign-language documents is mandatory in Chinese court civil litigation. As the Civil Procedure Law of China requires the use of Chinese in litigation, parties providing foreign-language materials are naturally required to provide Chinese translations. Further provisions are made in Article 527 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law:
When parties submit written materials in a foreign language to the people's court, they shall also submit Chinese translations simultaneously. If there are objections to the Chinese translations, parties shall jointly commission a translation agency to provide a translation. If parties cannot agree on the choice of translation agency, the court shall make the determination.
According to the judicial interpretations of the Civil Procedure Law, in foreign-related civil litigation, the provision of Chinese translations for foreign-language materials is required. The basic steps for translation (written translation) are "self-translation, joint commission, and court designation," meaning:
(1) Parties provide Chinese translations for foreign-language materials themselves. (2) If one party objects to the Chinese translations provided by the other party, the parties involved in the litigation jointly commission a translation agency for translation. (3) If the litigating parties cannot agree on the choice of translation agency, the court will designate one.
3. Regulations Regarding Interpreting
The regulations concerning interpreting in arbitration cases are relatively flexible. Taking the Arbitration Rules of the China International Economic and Trade Arbitration Commission (2015 Edition) as an example again, Article 81(2) of these rules states:
During the hearings of the arbitration tribunal, if parties or their representatives or witnesses require language interpretation, the arbitration institution may provide interpreters, or parties may arrange interpreters on their own.
According to Article 262 of China's Civil Procedure Law:
The people's courts shall use the common language and script of the People's Republic of China when hearing foreign-related civil cases. If a party requests interpretation, it may be provided, and the cost shall be borne by the party requesting it.
My understanding of the above regulations is that generally, parties are responsible for resolving interpretation issues themselves. Only when a party requests the court to provide interpretation will the court decide whether to provide it, and even if provided, the principle of cost self-bearance applies. There are no further regulations regarding interpreting in the judicial interpretations of the Civil Procedure Law of China.
Additionally, there is the question of whether a representing lawyer can simultaneously act as an interpreter for their own client.
Strictly speaking, according to legal principles, representing lawyers and interpreters play different roles in litigation. Therefore, during court proceedings, it is generally preferable for independent interpreters to handle courtroom interpretation. Especially in adversarial hearings, it is not suitable for lawyers to translate the factual questions asked by the judge to the parties.
However, in practice, there are cost and convenience advantages to having the representative also act as the interpreter. In specific circumstances, courts may allow representatives to act as interpreters. For example, in foreign-related divorce cases where both parties have no objections, with the consent of the other party, the judge may allow lawyers to provide interpreting services for their own clients.
By David Gao, Attorney at Law
