The translation work that language service providers like CBL provide today is a professional service, much like the services provided by lawyers and accountants for their private or corporate clients. No longer a purely academic activity, most translations are undertaken today at the paid request of a client, leading to a shift in a translator’s priorities.
This stakeholder-centered translation approach was a significant departure from the translation practices at the time, which often emphasized strict, sometimes even word-for-word adherence to the source text. In her 2003 paper on legal translation, Professor Susan Sarcevic claims that “literal translation … was the golden rule for legal texts and still advocated by some lawyers today.” However, she would go on to argue for an alternative approach to legal translation based on the Skopos theory, one which I like to call “stakeholder-centered” translation. Stakeholders are everyone who Sarcevic calls a “receiver” of a legal translation – anyone who reads and uses translated legal text, which can include clients and courts receiving second-hand information from lawyers. Instead of focusing solely on translations that singularly serve the interests of the translation client, she proposes that translators should take into account the interests of every stakeholder that the translation affects. Most importantly, legal translations should consider how each stakeholder would interpret the legal text.
For example, a country’s government might commission translations for its laws in order to facilitate foreign investment or to make itself appear more legitimate to its citizens, but these same translations might also be used to settle legal disputes in other countries. An ideal legal translation would need to take into account the interests of all parties that might potentially interact with this translated law, which obviously includes many more parties than just the initial client. In particular, Sarcevic argues that a translated law should have equal legal effect and intent as the original law in order to achieve this. And that to ensure that this happens, translators need to be keenly aware of how laws might be interpreted differently by different legal systems, actively avoiding translating laws in ways that might not be uniformly interpreted.
Sarcevic’s theory builds on the influential Skopos Theory we covered in a previous article, proposed by German linguist Hans Vermeer in 1978, embodies this new way of thinking about translation: he proposes that a translator should first and foremost make sure that the purposes of their client are achieved. Instead of evaluating a translation purely by how faithfully it adheres to the source text, how elegantly the prose is written, or how well it can be understood by its readers, Skopos Theory states that the most important criterion for evaluating a translation is how well it accomplishes the goals of the translation client.
Both the earlier Skopos theory and the stakeholder-oriented translation way of thinking runs counter to older PRC translation culture, where native speakers of foreign languages are excluded from the process and their opinions discredited due to the belief that only a PRC translator can understand Chinese culture and accurately translate Chinese. Observers of Chinglish notice that to them “accurate” means word-for-word translation, strictly following the dictionary. As it turns out, there can be severe and catastrophic consequences if legal translations cannot be uniformly understood by each stakeholder, like in the Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. case that I’ll be going into more detail on later.
Sarcevic and Legal Translation Theory
Fortunately, Sarcevic’s theories for legal translation have been gaining increasing influence in China, following the very successful Chinese publication of her book New Approach to Legal Translation in the PRC, one of her representative works. While most of her research was on the multi-lingual legal systems in the EU, she has also produced work on the bilingual laws of Canada and Hong Kong and is currently a research professor attached to the Center for Legal Translation at the China University of Political Science and Law in Beijing, in addition to being a Professor at the University of Rijeka’s Faculty of Law.
Through her studies on these various multi-lingual legal systems, Sarcevic identifies a common contradiction: many multi-lingual European countries, and countries such as Hong Kong and Canada, set out their laws in different languages and provide for each language version of the law to be considered equal and authentic. In Hong Kong, for instance, legislation is enacted in both English and Chinese, and the Hong Kong Interpretation and General Clauses Ordinance provides that both language versions of the law are equally authentic. However, Sarcevic points out that it is simply impossible to “produce parallel texts of a single instrument which have the same meaning,” which is what having two authentic legal texts of the same laws in different languages implies.
While Sarcevic cites various other academics to back up her claim, the issue is apparent to anyone with experience in the legal translation field. Equal meaning means that not only do translated laws have to result in the same legal consequences, but they also have to achieve the same legal effects through the same language and means. Even the exact same laws in one language can be interpreted differently by different judges and courts belonging to the same legal system – now imagine having to create a translation that needs to be uniformly interpreted in both a different language and a different legal system, where equivalent legal terminology often does not exist. In many cases, it simply cannot be done!
As a solution, Sarcevic states that while equal meaning might be an unachievable ideal, the legal translator should aim to produce translated laws that would lead to the same legal effect in practice as the original. Legal translators also should not try to interpret the law in favor of their client in their translations, as unfair judgments in their favor might lead to future consequences. For legal translations, it is not just the client who the translator has to look to satisfy – it is every potential stakeholder. Ignoring this advice, like in the 2018 Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. case, can even lead to serious international incidents.
International Consequences of Shoddy Legal Translations
While poor Chinese-English legal translations are rife in the industry, rarely has a bad translation led to such severe consequences as in the Animal Science v. Hebei Welcome Pharmaceuticals lawsuit, which eventually even came before the US Supreme Court. Very briefly, ASP was a group of US vitamin C purchasers who sued Hebei Welcome Pharmaceuticals, a Chinese pharmaceuticals company, for price fixing that violated the Sherman Antitrust Act. The initial district court awarded ASP damages despite the Chinese company claiming that Chinese law required them to price fix. This ruling was based on the independent opinion of the district judge, who interpreted that the law in question did not actually require that. However, this ruling was then reversed upon appeal by the Second Circuit Court of Appeals, who ruled that the district court should have deferred to the PRC’s interpretation of its own law. Finally, the case came before the Supreme Court, which unanimously overturned the ruling of the Second Circuit Court, arguing that US courts need only give a foreign government’s interpretation of its own laws “respectful consideration” rather than completely defer to it.
While the Supreme Court ruling explicitly stated that it was not a judgment on whether or not the first district court had correctly interpreted Chinese law, the damage was done. In effect, the Supreme Court has set a precedent where US courts are no longer obligated to defer to the PRC government in the interpretation of their own laws, a decision which likely further intensified tensions between the US and China at the height of Trump’s trade war. This is despite PRC government officials appearing directly in the case to make their position clear, having submitted a brief to US courts confirming that they believe the law in question did compel the Chinese company to price fix. Looking back, this entire series of events stemmed from the initial district court ruling that disagreed with the PRC government on how Chinese trade laws should be interpreted, citing other past statements made by the PRC which apparently contradicted the submitted brief.
These other contradictory statements included China’s past statements to the World Trade Organization and official announcements made by Chinese pharmaceutical trade organizations. However, my own examination of the source Chinese for these laws and statements found them to be consistent. Why, then, did the US district court find them to be inconsistent? The court even went so far as to accuse the PRC government of being duplicitous, as it appeared to have taken multiple self-contradictory positions on its own laws for situational gain.
Obviously, the translations for these laws and statements did not conform to Sarcevic’s standards; the provided legal translations suggested drastically different legal effects from the original in practice. Hebei pharmaceuticals looked at PRC laws and statements and said they were compelled to price fix, while the US district judge found no such legal obligation. Digging deeper, I realized that many of these inconsistencies could be explained by poor word-for-word translations that did not account for the large differences between written and spoken Chinese.
Written vs Spoken Chinese Registers
While there are differences between the written and spoken forms of any language, the gap between written and spoken Chinese is extraordinarily large. Formal distinctions are often made between the two, with written Chinese being referred to as shumianyu, and spoken Chinese known as kouyu. Spoken Chinese often features contractions, which would be fully written out in formal writing, and there are also specific spoken words that would usually not be used at all in writing. While kouyu might also be used for less formal pieces of writing, enacted laws would be written in stiffly formal shumianyu.
In the Animal Science case case, the Chinese materials featured a mix of oral statements and more formal written announcements and legal language. Incompetent PRC legal translators who translated these documents word for word failed to take this into account, resulting in translations that are, in places, wildly inconsistent with each other. These inconsistencies were what the initial district court pointed to when it claimed that Chinese law does not actually compel medicine producers to price fix, despite written testimony from PRC officials claiming otherwise.
Conclusion
Before putting out these poor translations, PRC legal translators did not stop to consider Sarcevic’s advice – that legal translations should take a stakeholder-oriented approach. When interpreted by stakeholders other than their clients, their translations implied vastly different legal effects compared to the original Chinese sources, eventually leading to a Supreme Court ruling with international consequences for US-China relations.
Fortunately, the case seemed to have been a wake-up call for PRC legal translators. The Chinese government has begun formally including foreign native speakers in translations of its party principles and legislative texts, a welcome change to past practices of excluding foreign translators on claims that they would be unable to understand Chinese culture. The recent popularity of Sarcevic’s theories in Chinese legal translation circles also signals this shift in thinking about legal translations here. I believe collaboration between native Chinese and English-speaking translators and editors, similar to how the Jesuits carried out their Chinese-English translations in the past, is key to Sarcevic’s theory. Only by consulting the perspective of a native, or monolingual, editor can you ensure that legal translations are interpreted consistently and accurately.
