The Exceptional Dangers of Legal Mistranslation in China
It would be hard to find two languages more unalike than English and standard Chinese (Mandarin). Verbally, the basic sounds are completely different and the importance of pitch in Chinese has no counterpart in English. In printed documents, English words are composed of individual alphabet letters while Chinese words are represented by unique symbols in a logographic system – symbols which can be printed horizontally or vertically, depending on the location.
Despite these language hurdles, China continues to grow more and more central to global trade. At the basis of any trade deal lies a contract, and these documents are starting to get more time in the limelight. The Supreme People’s Court of China reports that from 2013 to 2015, Chinese courts resolved about 100,000 civil, commercial and maritime lawsuits involving foreign litigants – a 10.4% increase from the previous three-year period.
As the courts themselves have shown, clarity of language in business decisions has become increasingly critical in China. In this reality, having a certified interpreter and/or translator on hand for important Chinese meetings and documents is just smart business.
Advantage or disadvantage?
“He/she who controls the language can control the case,” says lawyer and Asian business expert Dan Harris, writing for China Law Blog. Legal document translations (e.g. contracts and patents) from Chinese-English or English-Chinese can put litigants at a decided advantage or disadvantage – depending on who signed off on the work.
“About 85% of the time the translation is ‘accurate’ but about 99% of the time, it has been translated in a way that favors the side doing the translation,” says Harris. For example, he explains, in some languages the same word can be translated either as ‘shall’ or as ‘should’ – two very different meanings.
Your court or mine?
Harris also makes a very important point about jurisdiction: Litigation against a China-based company outside of China is essentially useless since “most Chinese companies do not have any meaningful assets outside China and because China does not enforce foreign judgments.”
So, if you are an American company doing business in China and something goes wrong, it’s more likely than not that your lawsuit will end up before a Chinese court. If you provide that court with an English contract, the court will use its own translator to translate it into Chinese – which according to Harris means “you are not going to have any influence on what it is going to say nor will you even know what it is going to say until you have sued.”
The bottom line here is that the Chinese version of a business contract is critical to the success of future legal efforts.
The impact of translation mistakes
Translation mistakes can be so wrong as to be funny — such as when Nike printed the characters for “getting rich” and “fortune arrives” on left and right sneakers, not realizing that together they translate to “getting fat” — or even just plain silly like this can of water, but in a legal context, they’re no joke.
Qu Miao, a well-recognized litigator in Shanghai, told Lexology that in Chinese courts “the interpretation of the claim often becomes the focus of the dispute between both parties and runs through the entire trial.” This is of particular importance for patents filed in China under the Patent Cooperation Treaty (PCT) because disputes may arise over the translations of claims – and even the smallest ambiguity can cause big problems.
By small, we mean something as tiny as the letter “A.” This letter was the point of a 2014 patent infringement dispute that went all the way to the Supreme People’s Court. In Motion Fitness vs. Changzhou Yingcai Metalwork Fitness Equipment, the indefinite article “a” was translated on each instance in the Chinese version of the patent claims to “one” – a specific numerical value. This narrowed the scope of protection in the claims and wound up fatally undermining the plaintiff’s case.
China represents immense business opportunities for a wide variety of industries – the only catch is figuring out how to responsibly scale the gap of language and legal differences. Luckily, a highly experienced business translation service can help you “stand on solid ground,” as the Chinese proverb says. Morningside’s translators can effectively represent clients doing business in China because they are knowledgeable in Chinese law and matched on a case-by-case basis that is determined by their subject matter expertise. If documents need to be defended in a Chinese court, our top-notch interpreters can ensure that foreign-speaking legal teams remain fully informed of every utterance made in a Chinese courtroom. For more information on how we can assist with your Chinese legal translations, contact Morningside today.