Attorneys routinely request “back translations” of Chinese legal documents, and these usually fail to produce results. These attorneys are generally under the impression that the method can be used to detect problems, though, the results are often misleading due to a form of malpractice known as “linguistic transcoding.” Western law firms expect their legal documents adapted by Chinese professionals to be tailored to Chinese law. What really happens is that the Chinese law firms they retain charge flat fees and subsequently cut corners by having inexpensive translators use machine translation and a dictionary to translate documents into what is essentially incorrect and unenforceable legal Chinese. This entire process results in Mandarin-language “Frankenstein Contracts”—a mix of local boilerplate and a type of foreign gibberish known as translationese. These transcoded documents use incorrect terminology, often just plugging in random dictionary entries rather than the correct legal terms. For reasons we will soon discover, the back-translation process tends to mislead attorneys into believing that the translated documents are problem-free when they are, in fact, extremely problematic.
The “Frankenstein Contract” menace goes unchecked
Chinese lawyers who draft legal documents generally charge fixed fees for translations because padding billable hours in China is too endemic for most clients to accept, and thus tend to rush. A typical Chinese firm will spend $15 on a word-for-word translation to be pasted above their standard boilerplate—meaning quick earnings on a $4,000 bill. The translators they hire then directly translate documents into clearly incorrect Chinese, or translationese. I constantly see such Frankenstein Contracts being signed in China, where defined terms switch back and forth haphazardly between translationese and the boilerplate. The Mandarin in these contracts is largely incoherent, the result of the translator blindly relying on a dictionary. A second firm auditing the documents might find malpractice-level problems with the Chinese; however, the Western firm ordering the translation would be highly unlikely to notice anything out of the ordinary.
The Western firm would be unlikely to notice any issues because the back translation they used to verify the documents, just like the first document, was produced using a sham translation technique called “transcoding.” Translation companies will generally outsource document back translation to other translators, who can transcode the translationese back into perfectly coherent English documents without necessarily understanding the original. The reason translator is able to do such a good job translating broken Chinese into English is because the broken Mandarin translationese is essentially an encrypted code language, and the Chinese-English dictionary a codebook. Thus, the code need not be an intelligible language to be decoded.
What is “transcoding” in Chinese Translation?
What is transcoding, and why does it usually fail? I frequently back translate third-party documents that are about to be executed in China and find them full of foreign-sounding Chinese terms. When I search those terms against the database of judicial opinion in China, I can find no rulings of any kind involving the particular contract terminology used. For example, when providing for relief in the event of a breach, about 100% of native Chinese contracts use the term “peichang,” which has a well-established meaning in statutes, regulation, and courts; however, almost all translated contracts use the term “jiuji,” which lacks any related case history. Even more bizarrely, despite practically all native Chinese contracts requiring receipts to be issued after payment is made, the Frankenstein Contracts usually require receipts to be issued before payment.
The Frankenstein Contracts predictably vary in this way as the average Chinese translator translates English documents by looking up each word in a dictionary and blindly inserting the first word that appears into the document. So, for example, the English word “invoice” translates to “receipt” (fapiao) in Chinese because Hong Kong’s Cantonese language actually uses the word that way, even if mainland China’s Mandarin doesn’t. However, an average Chinese translator will not question the logic in all of this or pay much attention to what the words really mean and will typically blindly translate one word into another. As mentioned earlier, this technique of simply changing a word into a different code-word, and then back again is known as “transcoding” in translation. Any Chinese staff presented with such incomprehensible, transcoded documents will likely ignore all your requirements.
The true nature of the transcoding & back-transcoding workflow can be made clearer with this example of a hypothetical transcoding workflow. Assume a transcoder has two codeword rules that they must apply whenever transcoding from Language “A” to Language “B”:
- Cat = Dog
- Veterinarian = Pound
Whenever “Cat” appears, the transcoder recodes it to “Dog” when coding from A to B and vice versa for the B to A direction. The transcoder is then tasked with applying the same encoding rules to the following instructions:
“Take my cat to the veterinarian on Monday.”
Transcoded from A to B: Take my dog to the pound on Monday.
If transcoded back, by reversing the direction from B to A, the result is the same as the original:
Back-transcoded: Take my cat to the veterinarian on Monday.
Thus, if a hypothetical translation client has both a dog and a cat and has a translator relay instructions by using transcoding rules, the person receiving the instructions would wind up taking the client’s dog to the pound. The sick cat would never get treatment, and the client would ultimately end up losing both pets instead of keeping both. However, the client’s back translation verification method would indicate that the instructions were translated correctly. Thus, the translation team becomes a kind of echo chamber: whatever you say is reflected right back at you, even if your message was never transmitted. In back transcoding, the Frankenstein monster of a contract is described as beautiful and perfect. While this may seem insane, the sad truth is that insanity is standard practice in dealings between some of the largest Western corporations and law firms and China.
The insanity pervades because the translator does not know who their clients are or what they are trying to accomplish. If they knew the clients were planning to sign a Chinese document and the purpose of the back-translation was to spot any problems with the original translation, they could easily point out any signs of machine translation in the original not apparent in the back translation. Instead of being asked to verify the translation through back translation, they are merely told to “translate” by their project manager. The client has no collaborative relationship with the translator; therefore, they cannot help you even if they wanted to.
Transcoding causes a BigLaw negligent reliance epidemic
I have seen evidence of a bizarre epidemic of negligent reliance on translation outsourcers in BigLaw: often, a firm’s own attorneys know there is a problem but fail to report it to their superiors. Several years ago, and possibly even still today, Chinese-speaking attorneys informed me that numerous large law firms were hiring bilingual attorney candidates as staff attorneys or similar specialized positions based on the ALTA translation company’s Chinese Legal Reading test. Dozens of Mandarin-fluent candidates I spoke with pointed out that the test itself was written in broken Mandarin.
Many commentators said that one such test was easier to pass for non-native speakers of Asian languages than it was for native speakers. The test was actually transcoded into translationese with an English language structure. If an applicant put the test into Google Translate, they would receive back correct, coherent English—better than the Chinese version. Thus, even test-takers who could not speak Chinese were able to achieve good scores on the translation test by simply relying on the back-transcoded version, which would be rendered into correct English. I ordered and reviewed the tests myself last year and was able to corroborate those observations for myself. The translation company likely verified those tests through back-translation and were probably never aware the tests were not accurate.
Several people in the industry related that much of the AmLaw 100 was selecting Chinese-fluent attorneys based on a test written in broken Chinese. Moreover, even more Chinese-speaking attorneys related that such AmLaw 100 firms were relying on these pretend Mandarin speakers to make critical decisions about their cases. In my own experience, many cases where a corporation had a claim against another company or an employee misconduct issue, and simply ignored it because the firm relied on vendors using transcoding. When they got the content properly translated, they realized the company had a case against a competitor or rogue employee.
Back-translation covers up Frankenstein contract problems
Shanghai attorneys frequently complain about large Chinese firms outsourcing legal work to smaller firms, or even to translators. Such law firms typically only make a few minor changes to what the translator wrote before sending the document back to their English-speaking clients for back-translation.
There are compelling reasons behind why using the largely faked transcoding process for contracts adapted from foreign documents would be the Chinese law firm’s most rational choice. As observed above, transcoding is basically an echo chamber: put good English in, and you will hear good English echo out, even if no message was transmitted. So long as the English-speaking company hears a correct-sounding echo back, they assume the translation is good. The same, however, cannot be said if they receive a genuinely translated Chinese contract.
Many foreign clients will still get their contracts transcoded into translationese and will subsequently raise many questions about why the document is suddenly so nonsensical in translation, despite the fact that their chosen Chinese law firm would have worked hard and done a great job on the translation. Chinese lawyers could spend 10 hours on the contract and another 3 hours are wasted in an attempt to sell the client on accepting good work and still lose their client to a rival firm using transcoding. However, if the Chinese law firm pays someone $100 to transcode the document to Chinese, then they know that the “echo” document will look perfect to the foreign company once it’s transcoded back to English. This is not what an ATA-Certified translator dedicated to client success would allow to happen, yet most companies don’t partner with their translators.
From the perspective of an ATA-Certified translator also licensed to practice law, I am bound by not one, but two very rigorous ethical standards and the above practices are plainly unacceptable to me under both systems. The goal of contract drafting should be to protect the client and accurately document the deal, not to create a pile of nonsensical pseudo-Chinese. Yet, because Westerners often do not view translators as their partners in success, their translators simply back-transcode documents to English, which is a deceptive yet 100% safe choice. For English-speaking attorneys, such misleading translations are particularly perilous in the transactional context: the attorney is not reviewing a contract, but rather an echo of what the attorney wants the contract to say.
Conclusion
What to do about it
English-speaking attorneys often gain a false sense of confidence when attempting to have their global contract terms added to Chinese language agreements. The lawyers in China simply have the contract “transcoded” into a variant of Chinese that does not use standard legal terms and may not even be enforceable in court. Clueless translators then simply carry out back-translation transcoding of nonsensical Chinese back into English, without alerting the attorneys to the fact that the language used in the documents is borderline incoherent. The resulting translation becomes an echo chamber where nothing is communicated, but the original message is reflected back at the client. This continuous, rampant practice puts foreign companies operating in Asia in a perilous position.
Fortunately, there is a readily available solution for this conundrum. When having a contract back-translated for verification, ask your translator what their standard approach to a back-translation is. A correct answer would be to accurately reflect what the target reader would understand and to alert the client of any problems with the drafting of the language. Don’t settle for an intermediary’s answer; talk directly with the person actually doing the work. CBL Translations always follows the correct practice in its Chinese to English back translation work and has helped dozens of clients resolve significant problems with their Chinese legal documents.
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