Multilingual Arbitrations
Given their transnational character, international arbitration proceedings are regularly conducted in many different languages.
Because of its vast capabilities and experience in multilingual arbitrations, the PCA is uniquely placed to administer multilingual disputes spanning all regions of the world and to advise on cost-efficient, tailor-made linguistic solutions for each particular case.
Given their transnational character, international arbitration proceedings are regularly conducted in many different languages. It is common practice to fix an official language of the arbitration at an early stage of the proceedings, whether by agreement of the disputing parties or by order of the arbitral tribunal. This language will normally then be used for all aspects of the proceedings, including official communications, the Parties’ written pleadings, hearings, and the arbitral tribunal’s orders and awards.
In certain cases, however, it may be appropriate to conduct all or part of the proceedings in multiple languages. The decision to do so may be motivated by several factors. The linguistic
backgrounds of disputing parties in international proceedings often differ widely. Some or all of the members of the arbitral tribunal or the counsel teams may not always have adequate
knowledge of one (or more) of the prospective languages of the arbitration. The same may apply to fact and expert witnesses, who are identified or retained primarily based on factors other than language proficiency. Lastly, the documents and legal authorities submitted by the disputing parties in support of their submissions may also require translation if their original
language is not one of the languages of the arbitration, or if so required for use by key participants in the arbitration. Considerations of fairness, equal treatment and equality of arms are also frequently invoked.
Because such factors may combine in a myriad different ways, cost-efficient solutions must be devised to fit the language needs of each particular case. A variety of tools are, however, available to ensure that the proceedings are linguistically accessible to everyone without entailing undue cost.
Translations
The need for translations may apply to varying degrees to official communications, the parties’ written pleadings, any documents annexed to them, and the arbitral tribunal’s decisions. Arbitral tribunals will often set out directions on translations in their first procedural order while preserving flexibility in this regard. For example, PCA tribunals commonly reserve in their first procedural orders the power “to require a Party to translate any document in whole or in part”.
Some proceedings are conducted in two languages that are equally authoritative. For example, where a treaty has been drafted and signed in two authoritative languages, the parties may not wish to give one language precedence over the other.
In other cases, parties may accept that one of the languages of the proceedings is the authoritative language, such that whenever there is a discrepancy between two language versions of the same document, the authoritative language will prevail.
When fixing the requirements for translations, flexible arrangements can lead to significant time and cost savings. For example, where documents are translated, it is frequently decided that there will be no requirement that the translations be certified or conform with any other formal constraint, unless a party objects to the accuracy of the translation. It is also common to allow translations to be limited to relevant excerpts of the original document, and for submissions and decisions related to document production to be in one language only. Acknowledging the practical difficulties of simultaneously preparing originals and translations of written submissions and other case-related documents, some procedural orders provide for a delay between the circulation of documents in their original language and their translations, particularly when access to translations is not time-sensitive.
Creative case-specific solutions can also result in savings. In one bilingual English/Spanish PCA arbitration in which English was the common working language of all members of the tribunal, the tribunal’s first procedural order required a party filing a written submission in Spanish to make available an English translation no later than three weeks thereafter, while allowing for more flexibility where the written submission was initially filed in English. In the latter case, the order allowed the other party to request a Spanish translation at its discretion, while not making it mandatory from the outset for all submissions.
In some cases, it has been left to each participant to employ their preferred language for any aspect of the proceedings. This largely dispenses with the need for translations and allows for significant cost savings. However, it is naturally only possible where members of the arbitral tribunal and parties’ delegations are bilingual.
Interpretation
Interpretation is often required during hearings and meetings, whether conducted in person or remotely. It can be simultaneous or consecutive at the choice of the parties and the arbitral
tribunal. Interpretation is simultaneous when the interpreter renders the message in the target language at the same time as the speaker speaks in the source language. The interpreter usually sits in a sound-proof booth, with the interpretation being transmitted to the audience via headphones. In consecutive interpretation, the speaker has to pause after each short segment of speech, allowing the interpreter to speak. Simultaneous interpretation is usually preferred, as it greatly reduces the duration of hearings. Consecutive interpretation may nevertheless be preferable for some language pairs or where the technical accuracy of the interpretation is paramount.
In multilingual proceedings, transcription of hearings in several language versions may be required. Court reporters will usually listen into one interpretation channel at a time, thus preparing a single-language verbatim transcript compiling any interventions made in a specific language, plus the interpretation into that same language of interventions made in any other language.
Interpretation can also be a place where cost savings may be achieved. For example, witnesses and experts requiring interpretation can be grouped in order to reduce the number of sessions requiring interpretation. Following the widespread use of remote interpretation services in videoconference hearings during the pandemic, it has also become far more common to consider remote interpretation options even for in-person hearings, resulting in significant savings in terms of interpreter fees and travel costs.
Institutional Support
The PCA International Bureau consists of an experienced and diverse team of legal and administrative staff of various nationalities, who collectively speak more than 20 languages, including the six official languages of the United Nations. In this capacity, the PCA routinely handles multilingual support for arbitral tribunals, involving the maintenance of multilingual case archives and arranging for translation of tribunal communications (including correspondence, procedural orders, and awards) and interpretation during hearings and meetings. The organization of such matters by a trusted neutral third party such as the PCA helps to avoid disputes over these items, even where linguistic issues may be contentious. In recent years, the PCA administered arbitrations in Arabic, Chinese, English, French, German, Korean, Portuguese, Russian and Spanish, and organized witness and expert testimony in these and a further dozen languages, including, inter alia, Amharic, Czech, Farsi, Macedonian, Polish, Slovak, Turkish, and Ukrainian.
Because of its vast capabilities and experience in multilingual arbitrations, the PCA is uniquely placed to administer multilingual disputes spanning all regions of the world and to advise on cost-efficient, tailor-made linguistic solutions for each particular case.