The author argues that, despite the importance that the choice of the procedural language in the arbitration agreement can have in the efficiency of the proceedings, this aspect is often overlooked by the parties. She discusses the problems that arise when the parties have not reached an agreement on this issue, and how the arbitral tribunal should determine the language of arbitration. She concludes that ‘in a mechanism of consensual resolution of international disputes, as international arbitration is, language cannot (and should not) be looked at as a secondary matter’. In fact, language can potentially affect the proceedings in many circumstances, leading to an inefficient arbitration.
The issue of language is of paramount importance in international arbitration. The arbitral tribunal is frequently faced with parties with different nationalities. If those parties do not have the same mother tongue, effective communication becomes an issue. Language is relevant regarding three different areas: the language of the dispute, the language of the hearing, and the language of the award. In all three instances poor communication can create problems. Frequently disputes result from the careless or ambiguous use of words, not from the actions of the parties themselves.
Language and nationality walk frequently hand in hand. As a result, language can impact upon the composition of the arbitral tribunal: choosing a sole arbitrator (and determining his nationality and language) or a panel of three arbitrators (and agreeing on the nationality and language of the chair arbitrator). That is why arbitral institutions should make available a panel of arbitrators with different nationalities and with fluency in different languages, so as to enable the parties’ freedom of choice.
Language is also relevant regarding party equality. The realisation of the parties’ right to properly present their case to the tribunal depends on whether they can communicate correctly and follow the proceedings thoroughly. The violation of the rules on language of arbitration is not normally considered as an absolute ground for setting aside of the award or for denying its recognition and enforcement. However, it is taken into account if it results in the breach of the parties’ right to be heard, to fight for their rights in arbitration proceedings, or if it essentially deviates from the rules of arbitration determined by the parties or which are regulated by law. Therefore, such a violation may be relevant to the extent it might have affected the fundamental rights of the party calling upon such violation.
A third aspect parties should consider has to do with a possible need to apply to local courts for any measures of support during the arbitration proceedings.The autonomy of the parties only applies before the arbitrators. In the event of court intervention the parties must respect the official language of the forum, which can entail considerable translation costs.
Finally, once an award is made, the language question may also play a role when it comes to seeking the annulment of the award at the place of arbitration, or its enforcement in the losing party’s country or elsewhere. Language problems arise whenever the language of the arbitral award is not the same as the official language of the court applied to. If the award was written in several languages, or in the language of the forum, it is not necessary to present a sworn translation. However, arguments of inconsistencies between two versions of the award may arise. If the award was only written in one language, which is not the language of the forum, a sworn translation will be indispensable.
The language or languages of arbitration is an essencial aspect wo which parties and tribunals should pay due attention. In the last years I have been studying this question, focusing especially on the case of commercial arbitration between China and the Portuguese-speaking countries (some articles in Portuguese on this subject can be found here). Below is a list of a few relevant articles and books on this topic:
Arsen Janevski, Language of arbitration as a ground for non-enforcement and setting aside: tracing a Bulgarian case, 5 Croatian Arbitration Yearbook 101 (1998).
Bruce Fraser, The role of language in arbitration, in James L. Stern & Barbara D. Dennis (eds.), Decisional thinking of arbitrators and judges. Proceedings of the thirty-third annual meeting of the National Academy of Arbitrators, 19 (The Bureau of National Affairs 1981).
Marianne Dellinger, From jumping frogs to graffiti-painted walls. Legal issues caused by mistranslation in international commercial arbitration, 7(2) Rutgers Conflict Resolution Law Journal 1 (2010).
Pierre A. Karrer, Arbitration and language look for the purpose, 11 Croatian Arbitration Yearbook 7 (2004).
Rose Kennedy, Much ado about nothing: problems in the legal translation industry, 14 Temple International and Comparative Law Journal 423 (2000).
Susan Sarcevic, Translation in international arbitration, in Vijay K. Bhatia, Christopher N. Candlin & Jan Engberg (eds.), Legal discourse across cultures and systems,291 (Hong Kong University Press 2007).
Tibor Várady, Language and translation in international commercial arbitration: from the constitution of the arbitral tribunal through recognition and enforcement proceedings (TMC Asser Press 2006).