Trials and Tribulations: stories from the Translator Trenches

The Assumption Trap

A client sought to rely on a force majeure provision in a dual-language (English / Russian) contract, where both languages were of equal force. The English provision was extremely wide: it excused anything not within the parties’ reasonable controlfrom liability for breach of contract. The Russian, on the other hand, translated this as any circumstance of insuperable force (обстоятельства непреодолимой силы), a concept found in some civil code definitions.

 Under Russian law, as in most civil law jurisdictions, there is a relatively narrow concept of force majeure. This was reflected in the Russian language version of the contract. The translators failed to understand that the negotiators had agreed to something much broader, with a common-law mindset. 

 The contract had been negotiated and drafted in English. The Russian was translated by Russian lawyers with a major law firm in Moscow. We believe that they fell into the trap of assuming that, as they knew what force majeure meant under Russian law, this was what was intended by the drafters.

Lessons Learnt:

Don’t fall into the same trap: make sure your translators translate what the words say, not what they think they should say.  Ideally, for documents that are sufficiently important, our recommended best practice is:

1.    Have your translators sit in (and interpret, if necessary) your negotiations. This will give them a much better understanding of what the parties intend. The added cost will be easily offset by the significant reduction in the risk of disputes.

2.    Encourage translators to feel comfortable with asking the drafters when they are uncertain as to the intended meaning of a phrase or paragraph.

3.    In dual-language contracts, as a rule of thumb, you should allow [X%] of the time that you spend carefully crafting contractual language in English for its translation into Russian. 

4.    Progress both language versions in parallel. Your translator, being visible to the counter-party in course of negotiations, would have a chance to establish a rapport with the other side and agree the Russian terminology and certain turns of phrases on an ongoing basis, thus shortening the time required at the end of negotiations (see point 5 below) and reducing the risk of coming to an impasse at the 11th-hour. 

5.    Contract negotiations tend to continue right up to the last minute. For important contracts and other documents, build in sufficient time after the conclusion of negotiations for checking and agreeing the translation with the other side.

Remember that, if both languages are of equal force (and English does not prevail if there are any discrepancies), no matter how satisfied you are with the English text, it risks being irrelevant if the Russian does not say the same thing.

If you have any questions or comments, please feel free to ask.