Originally from World Arbitration And Mediation Review (WAMR)

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LANGUAGE AND TRANSLATION IN

INTERNATIONAL COMMERCIAL
ARBITRATION: FROM THE CONSTITUTION
OF THE ARBITRAL TRIBUNAL THROUGH
RECOGNITION AND ENFORCEMENT
PROCEEDINGS

When people initially discuss problems associated with international
arbitration, they may predictably start with venue or choice of law issues,
but these initial considerations fail to realize that communication is the first
hurdle. Even before venue is selected, a standard for communications
between the parties needs to be established.

Unfortunately, many international contracts that have an arbitration
clause do not pick the arbitration’s common language. Is this a strategic
method used by the parties who anticipate litigation to challenge an award
for lack of translation? It may be, but it is known that there are not enough
bilingual arbitrators to meet their ever-growing demand. The increasing
numbers of international commercial arbitrations have resulted in
arbitrations in which arbitrators are unable to establish common languages
with other arbitrators on their own tribunal. This language issue compounds
when a group of arbitrators with no common language must deal with two
parties that cannot agree upon a common language or when an arbitrator
tries to convey the nuances of one language to another arbitrator in a
different language. These arbitrators must then try to convey the same
nuances to a third arbitrator. This unfortunate group will perform the same
dance when they try to decipher foreign documents.

In his publication, Language and Translation in International
Commercial Arbitration (T.M.C. Asser Press, 2007), author Tibor Varady
addresses the problems that often arise when arbitral parties do not share
common languages. He explains interesting issues with specific examples,
such as the translation effects of a particular language at each stage of the
arbitration process. He illustrates their significance by drawing upon his
experiences as a world-renowned international commercial arbitrator. In his
analysis of translation and language issues concerning international
commercial arbitration, Varady relies upon interpretations and legislation of
the United Nations Commission on International Trade Law (UNCITRAL)
and the New York Convention on the Recognition and Enforcement of
Foreign Arbitration Awards (New York Convention).