International Arbitration: Translation of Documents

In international arbitration, it is common for our lawyers to encounter situations where the bulk of the documentary evidence is in a language which is different from the language of arbitration. Often, the cost involved in translating the voluminous project documents would be immense. However, a pertinent issue facing the Tribunal would be whether to issue a procedural order for the translating of all documents.

According to Tibor Várady, the dominant pattern worldwide is to allow parties to choose the language of arbitration proceedings, and if they fail to do so, the arbitrator will make the choice.

After language of the arbitration is chosen, it is likely that a document written in a language other than the language of the arbitration will be translated to the language of the arbitration. This conclusion is based on the express wording of Article 22.2 of the SIAC Rules 2016 (which is similar to Article 22 of the UNCITRAL Model Law) that grants the Tribunal, or the Registrar if the Tribunal has not been constituted, the ability to “order [parties] to submit a translation in a form to be determined by the Tribunal or the Registrar”. This is coupled with various Arbitral Procedural Orders that suggest that the documents will be translated to the language of arbitration.

In the arbitration between Alicia Grace and others v The United Mexican States ICSID Case No. UNCT/18/4 Procedural Order No. 1, the Tribunal was constituted and presented an order after hearing the procedural matters on which parties agreed and their respective positions regarding the items on which they disagreed. After stating that the procedural languages for the arbitration were Spanish and English, the Tribunal proceeded to lay down the requirements for the Parties’ requests, pleadings and oral presentations. (at [12]) In particular, the Tribunal required any “document written in a language other than Spanish or English must be translated into Spanish or English”. (at [12.3]) From this Procedural Order, it can be extrapolated that the Tribunal is likely to exercise its discretion to order translations for any other language into the language of arbitration. Since this case accepted both English and Spanish, it stated that the document can be either procedural language. By parity of reasoning, a Registrar or Tribunal will likely make an order for the documents to be translated into English given that English was the language agreed upon by parties in our case.

Furthermore, in the matter of Caratube International Oil Company LLP v Republic of Kazakhstan ICSID Case No. ARB/08/12 Procedural Order No. 2, the Tribunal stated that since “both Parties use English speaking Counsel, they are invited to produce any documents which are not in English to the other Party together with an unofficial translation into English, unless the Parties agree otherwise’. (at [5.1])

Lastly, in specialised arbitration, it is common for parties to look towards experts from foreign jurisdictions. It is therefore procedurally necessary for translating documents to the English language to be fair and equitable to parties.

Disclaimer: The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.