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The Costs Of Bad Translation To A Case

Published on October 30, 2019

As discussed in the previous article, in most international cases, much of the written evidence is both unveiled and, ultimately, presented to the adjudicator, through translators. Nonetheless, it is not uncommon for lawyers to assign translations a low priority in their case work, and to select their legal translation provider based on price or speed, rather than quality of service. As discussed in this post, such approach carries hidden costs for lawyers and their clients alike.

Losing or undermining a party’s case

The most obvious cost is the possibility of losing or gravely undermining a party’s case because of a mistranslation. Such a scenario is not hypothetical. In Occidental v. Ecuador, one of the largest investment disputes in history, poor English translations of Ecuadorian case law contributed to a 40% increase in the damages awarded1 – a staggering USD 707,850,000. That portion of the award was ultimately annulled by an ISCID ad hoc committee comprised of three native Spanish speakers,2 but not until the parties had to go through lengthy and expensive annulment proceeding.

Other costs are less evident, particularly to the senior members of the legal team who are often far from the “legwork” on the ground.

Time spent on resolving poor translation issues

Document translations are usually requested and then reviewed by junior lawyers or paralegals, who assess their relevance and materiality to the case, and make proposals to more senior colleagues as to whether and how they should be used. Reviewing translated documents takes time. Reviewing (and, where the reviewer knows the source language, correcting) poor translations, takes on average more than twice the time than it does to review translations that are accurate and legible. The time spent on resolving translation issues is not just a cost to your client, but also subtracts from the time and energy available to your staff for other important casework. It nullifies any perceived savings from selecting the cheapest legal translation service.

 

Practical steps

Cutting corners on legal translation is thus a false economy. To ensure their cases don’t get “lost in translation”, lawyers could:


[1] Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, Dissenting Opinion, ICSID Case No. ARB/06/11, Dissenting Opinion of Professor Brigitte Stern, 16 December 2011, 95-98, 103-104.

[2] Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, Dissenting Opinion, ICSID Case No. ARB/06/11, Decision on Annulment of the Award, 2 November 2015 (Prof. Juan Fernández-Armesto, President Judge Florentino P. Feliciano, Member of the Committee Mr. Rodrigo Oreamuno B., Member of the Committee).

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