China Contract Translations: What Were You Thinking?

International contract lawyers

The other day I was explaining to a client how important it is to have a trusted lawyer translate any Chinese-English contract and to emphasize that, I told him the following about a United States company that had fallen way down on its contract translation, to its extreme detriment:

United States company contracted with a Chinese manufacturer to make its product. United States company told the Chinese company that it would be “absolutely critical” that its product be delivered by August so as to be in the stores for the Christmas season. United States company calls our law firm in late August all but begging us to “force the Chinese company to live up to the contract.”

The United States company sends us the contract, written in both English and in Chinese, and it says the following:

    • English language version says product must be delivered by August 10.
    • Chinese language version essentially says Chinese manufacturer will do its best to deliver the product by August 10, but that if circumstances prevent it from meeting that date, its only requirement is to try to get the product out as quickly as it can.

We explained to the American company how in China unless a contract explicitly says the foreign language version controls, the Chinese language version controls and so only the Chinese language version was relevant. The United States company did not know this. They told us that they knew the Chinese language version was “relevant” and so they had used a “really good translator” to help them with that portion and she “must have missed” the difference regarding the delivery dates.

Cynical me is convinced that the translator did not “miss” a thing, but was paid well by the Chinese factory to say nothing about the delivery date discrepancy. I say this in part because the “remedy” the Chinese factory immediately suggested (which our client took, because it had no choice!) was to up-charge by 20% to “expedite” product delivery.”

Bottom Line: Before you sign a contract, you should know exactly what it says and what it legally will mean.

15 responses to “China Contract Translations: What Were You Thinking?”

  1. Reminds me of the apocryphal story variously attributed to Winston Churchill, Groucho Marx et al. in which at dinner the gentleman asks the lady, “Would you spend the night with me for a million dollars?” The lady replies, depending on the version of the story, “Of course I would” or “I very well might!” The gentleman then says, “Well, would you spend the night with me for $10?” The lady, outraged, “Of course not! What sort of woman do you think I am?” The man (revealed as something less than a gentleman), “We’ve already established that; now we’re negotiating over price.”

    Negotiation 101: Is it truly “impossible”? Or only “impossible at that price”?

    • I just assumed that they just assumed it. Or, perhaps they based it on some bogus review or one person who told them, hey we know this translator. My favorite though is when the company chooses the translator at the recommendation of the Chinese company with which they are contracting. But wait, it gets even better. We have had people actually tell us that they assumed it was a good translator because that person worked for the Chinese company with which they were doing the contract! They actually thought that it would be good for both sides to have a well-translated contract. We have written about this kind of thing pretty much since we started this blog and yet, if anything, these sorts of mistakes have only accelerated during the pandemic, mostly I suspect, to save money.

      I’m guessing you see companies (and even law firms) come to you after someone botched their Hague service of process and I’m betting they have plenty of times told you why they picked the person they chose (who knows little or nothing about Hague service) and you bit your tongue while thinking that is NOT the way to choose someone to handle something as technical/specialized as Hague service. Am I right about this? In fact, you are welcome to write a blog post on this any time, my friend.

  2. “Trusted” is the key word here and I applaud you for raising it — not all lawyers and law firms can be trusted. “Churn the bill” scandals have been a big problem lately. I investigated the origin of these kinds of misleading contracts and they originated in local China law firms, not translators, and even tracked down the local lawyers doing this! Currently translators use software that prevents clauses from going missing–only law firms “drop” clauses, any qualified translator uses a CAT tool that captures all clauses. So, this is an incident of lawyers using translation to defraud.

    I do translation quality audits for third party companies of translations provided by translation companies and law firms, and maintain a list and data of law firms that have committed serious ethical violations with translations, which we consider to be a violation of the ABA rules (and the client may choose to report the ethics violation to the ABA). In the data, there are two very clear trends of ABA translation rules violations applicable to law firms:

    1. They do not opt-in to the American Translators Association Ethics Oversight program.
    2. They assign translation tasks to personnel incapable of passing the American Translators Association certification test, or even the apprentice-level CATTI test.

    Amazingly, top 10 “Vault” and “NLJ” listed law firms have made it on this list. At academic conferences, the majority of complaints by law professors and government regulators about legal translation were related to law firms. For China, this is causing serious problems as lots of poorly translated legal compliance program documents make their way to the media, causing confusion, scandals, and even arrests over non-existent problems. (and divert attention from real problems) China lawmakers are, however, in the process of slowly cleaning up the problem. Several academics (including me!) are recommending enhanced penalties and compliance programs to regulate law firm translation problems; I am personally suggesting punitive sanctions, entry-exit bans, and foreign attorney ethics violation reports to the ABA and other countries’ law firms regulators, to provide clear and convincing evidence of attorney malpractice in failing to meet industry quality standards requirements. I plan to set up a University-based center for translation students to generate evidence to support ethics complaints and disbarment actions. Disbarment of attorneys engaging in fraud-by-translation or providing substandard (uncertified) translations without first obtaining informed consent about the lack of certification will be a long-term goal, and ideally resolve the problem you discussed above.

    “Trusted” attorney is a key word — clients need to carefully vet their law firm partners and ensure that they are getting 100% ethical treatment, no overbilling, and no substandard quality work.

    • You are absolutely right that much of the “mistranslations” are being done by law firms. We have seen a massive uptick in deliberately bad translations done by law firms that charge ridiculously low flat fees for contracts online, some of which are not even law firms. These contracts and their translations are so bad for the non-Chinese party that we are convinced the person/firm who did them was paid by the Chinese side to essentially “throw” the contract. We wrote about this in China Contract Drafting Scams: From Bad to Much Worse (https://harrisbricken.com/chinalawblog/china-contract-drafting-scams-from-bad-to-much-worse/). It has gotten so bad that I sometimes wonder whether the Chinese government is funding these websites as I have no doubt that they have shifted many millions of dollars (hundreds of millions?) from the West to China.

      • I’ve taken a look at the evidence of the Chinese government possibly funding bad contract translations, and traced the culprit back to the American Bar Association. What the evidence seems to indicate is that large American law firms are actually routinely engaging in malpractice-level negligence with regards to their China contract translations and overbilling clients for them–a direct violation of the ABA ethics rules–but clients aren’t really noticing yet because they’re dealing with much more serious overbilling issues. One route is they have someone in-house do it, and a second route is they send it to a giant translation outsourcer who hires a contractor to drop it into Google Translate. In either case, the lawyers are guilty of enormous negligence when they fail to look into what kind of qualifications are required for translators, and entrust the document to “some rando on the internet.” The ABA does have rules saying this is malpractice but hasn’t really enforced the rule.

        The evidence itself is not too hard to get: just about every top American law firm has taken the “rando on the internet” approach to translating documents, and quite remarkably turned some of those documents over to government regulators such as the SEC, who subsequently posted the content on the internet! I’d be extremely surprised if there is ANY American law firm with a public record of Chinese to English translations of contracts, who does not have obvious malpractice in the public records. So, clients either get zero track record firms or big law firms with track records of malpractice-level mistakes.

        The other evidence is not on the internet but is harder to find. I have attended many of the important legal translation conferences in China, and the best quote I have is from a government regulator who said to translate, “Large international law firms do garbage translations because it fits their business model.” Employees who worked as translators at multiple major New York and London law firms in mainland China claimed that they were being asked to Google Translate contracts in order to cut costs on doing client work, which I am guessing is billed to clients at a fixed rate. Law professors in China have complained directly to legislators about large law firms’ conduct in this respect, but my understanding is that Beijing is currently very reluctant to crack down on the fraud pouring out of New York and London right now. If you head down to some of these conferences in China, you’ll find that it’s rare for a legal translation conference to be held in which the legal industry are NOT being criticized.

        Many large law firms in mainland China have established internal “translation departments” and affiliates, using these to over bill clients for translation work. So, a typical client who goes and looks for a “trusted lawyer” 99.9% of the time is going to be scammed by a lawyer. If I may make a humble suggestion to your blog, it’s to help clients determine how they know they can trust a lawyer, translator, or any other person with the translation of a Chinese contract. What makes this person qualified? Can you trust someone who opts out of industry oversight programs?

        • We are talking about two different things. You are talking about legitimate law firms using bad translators and what we are seeing is illegitimate law firms and translators deliberately doing bad translations for their foreign clients — almost certainly because they are being paid by THE OTHER SIDE to do so or out of nationalism. Though I have heard about the sort of problems you describe, we do not usually see those.

          • I am very interested in documenting these cases; if you can get documentation of it happening, I would love to have a team of University researchers investigate and document these cases, and forward reports to the legal ethics committee and other appropriate government regulators. I’ve only gotten 1 documented case so far, from a “red circle” law firm, and when we documented the case, the partner mysteriously disappeared from said law firm within a month. I am very eager to develop evidence that can support complaints that lead to high-profile firings or disbarment actions. News reports I’ve read have indicated prosecutors and judges are eager to get their hands on such complaint materials too. I believe you have my contact information, so please send any documentation you can; with the necessary permissions and approvals from document owners, graduate students are happy to do the discourse, neurolinguistic and systemic functional linguistic analysis necessary to prove a case for free. The last one they did (resulting in the disappearing lawyer), ran about 15 pages and knocked the socks off the law firm’s managing partner!

          • In China. If you search your firm e-mails for my name you’ll find the previous conversation records… I recall last you were interested in signing up as a pro bono law firm contributor!

            I have only gotten 1 documentable case of a translation fraud issue in the legal field in the past three years (which was forwarded for public shaming purposes). Lots of judges, government officials, law professors, and prosecutors have complained about “translators gone wild”, there’s even a crackdown campaign in Shanghai. People from the prosecutor’s office complain and rant angrily about “the fraudsters” and their bad attitude. I’ve spent about ~2 years developing a good empirical framework for proving and defining fraud in legal translations; before that most people were going on “my personal opinion” and not “the Daubert standard.” However, fraud rules are still the typical fraud rules: “Sam Harris says…” doesn’t meet the Daubert standards at a high enough level for a government official to accept, despite his immense erudition and knowledge, the industry still requires proof of competence (the ATA certification).

            I am very eager to do a pilot project on reporting translation fraud attempts against foreigners (and get some praise for the plucky band of fraud busting students from the English blogs and maybe media, especially the harsh critics people).

          • Next time we get one of these I will ask the company that alerts us if we can report it to you. These companies are usually small and in such deep shit from the rigged translation that they don’t hire us, but we are still bound by the attorney-client privilege so we will need their approval before we can reveal anything. It was strange because we saw a huge number of these from maybe December until mid-March, but not sure we’ve seen a single one since then. I would like to think it was our posting on this that caused the slowdown, but I doubt it.

          • That sounds good to me, and yes the victim business entity is always the reporter when defrauded (but can authorize a firm to produce a criminal complaint), and there is a lot of informed consent paperwork to process. If a complaint can be made and proven, the client is also entitled to compensation from the perpetrator, who is probably a Chinese national. Bad Chinese is usually a good sign of a English-to-Chinese machine translation, which is often done so that the English looks perfect and the Chinese isn’t as clear–this is done to dupe foreigners. I’ve worked on several big company mergers in China that needed US approval and the Chinese satellite office of a biglaw firm just dropped entire English agreements into machine translation into Chinese, just so that it back-translates into English that meets regulator approval. I personally oppose this practice and think that law firms should instead get the contract drafted in Chinese and ATA certified translated into English, the reason being that the Chinese legal system doesn’t interpret these documents in the same way as the purported English equivalent.

            If a website was set up to lure fraud victims from abroad, I am sure the Shanghai Prosecutor’s office would be eager to clean out any and all organized crime. Last time I attended their public talk about translations in prosecutions, it honestly sounded like foreigners haven’t been bringing them enough cases. The linguistics science-trained graduate students are happy to analyze whether there was a negligent, reckless, deliberate, or willful mistranslation that induces reliance that occurred using the Daubert-admissible science-based methods; they just want recognition and public praise. Shanghai Prosecutors I am sure would be happy to crack down on international organized crime especially if the man-hour requirements are low.

          • This is specifically the Shanghai Jing’an jurisdiction, which as you probably noticed sometimes takes jurisdiction from other regions’ police office for cases involving foreigners. Guangzhou, where small businesses tend to go shopping, has a bit of a regional rivalry with Shanghai, or should I say everyone not from Shanghai, has a bit of a regional rivalry with Shanghai. It’s not too much different from how in NYC people like to say, “You’re not from New York — you’re from Upstate.” So I would bet apples to apples if I had some hard evidence, I could find a solution that gets these people to stop defrauding people. I’m 100% sure the evidence is out there somewhere, but nobody is stepping forward.

          • I am not so sure. Many of the people doing this had a law firm website up and by the time the company realized they’d been duped, the website is gone. Others do this work on freelance sites and then disappear, probably changing their names. They could be from anywhere. The Chinese is oftentimes so badly done we do not think they are Chinese.

        • As for how to choose a reputable lawyer, translator, or really anyone, that is a really tough one. We always beg our clients to come to us for lawyer recommendations because as lawyers we tend to know who is good in those areas in which we do not practice. For instance, we have a list of top family lawyers, top criminal lawyers, top medical malpractice lawyers, etc., because it truly pains us when our clients use someone not very good. Good lawyers know who the other good lawyers are and if they don’t know exactly who to use for what, they know who to call. For example, we were recently asked by a Spain law firm to help one of their clients with a relatively small employment law matter in South Carolina. We told them that they needed a good South Carolina employment lawyer and then we found them such a person. This sort of thing goes on all the time.

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