Traduttore, traditore. To translate is to betray. Nevertheless, legal translators do their utmost to disprove this adage. After all, that’s what the client expects. While beautiful infidelities – when the translator deviates from the meaning of the text for stylistic reasons – have their place in literary translation, the legal translator – and above all his client – will always prefer fidelity to beauty. He will therefore strive above all to be faithful in his translations. This is where the difficulties begin. What is a faithful translation in the legal field? After some twenty years of experience, I can see that the answer to this question is neither obvious nor unambiguous. In fact, it depends on the circumstances.
Let’s take the example of an arbitration award written in English and translated into French. The translator’s client is a company that has been vindicated by an international arbitral tribunal and wishes to obtain exequatur from the French courts. To do so, it requires the certified translation provided for in Art. 1515 of the French Code of Civil Procedure. The purpose of the translation is to obtain certain legal effects in the French legal system. These effects are those described in English by the arbitral tribunal in the award. A faithful translation is therefore a translation that gives effect in French law to the legal effects described in English by the arbitral tribunal in its award. Even if the translation loses all the elegance of the style of the original text. In this respect, it should be noted that, in order to be faithful to his oath, the sworn translator must be faithful to the intention expressed by the arbitral tribunal in its award. And by being faithful to his oath, he is ultimately faithful to his client.
The example of the arbitration award applies to all translations intended to produce legal effects: a faithful translation is one in which the balance of rights and obligations of the parties concerned is left intact by the translation.
The situation is different for texts of a legal nature that are not intended to produce legal effects, such as law books or doctrinal articles. Whereas in the case of texts intended to produce legal effects, the criterion of faithfulness lies, as it were, outside the text – if the translation produces the same effects as the original text would have had if it had been applicable, then the translation is faithful – in the case of other types of legal translation, it reintegrates, as it were, the text of the translation. The criterion of fidelity, that is, respect for the meaning of the text, must be sought in the text itself.
The distinction between the translation of a text intended to produce legal effects and the translation of a text not intended to produce legal effects may seem purely theoretical. Indeed, it is highly likely that the translator will translate the same text in the same way whether it is intended to produce legal effects or not – think of the same judgment of a foreign court which may be translated to produce legal effects in a particular legal order – a State – or to provide information in a legal journal. Nevertheless, it is of considerable practical importance, especially when the legal stakes are high.
In both cases, the translator must remain faithful to the meaning of the original text. To do so, he or she must not only transfer the text from one language to another, but also – sometimes, but not always – from one legal system to another, which is not always an easy task.
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