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Available online at www.sciencedirect.com ScienceDirect Procedia - Social and Behavioral Sciences 237 (2017) 1201 –
Available online at www.sciencedirect.com ScienceDirect Procedia - Social and Behavioral Sciences 237 (2017) 1201 –

Available online at www.sciencedirect.com

ScienceDirect

Procedia - Social and Behavioral Sciences 237 (2017) 1201 – 1207

- Social and Behavioral Sciences 237 (2017) 1201 – 1207 7th International Conference on Intercultural Education

7th International Conference on Intercultural Education “Education, Health and ICT for a Transcultural World”, EDUHEM 2016, 15-17 June 2016, Almeria, Spain

Translation strategies of legal texts: experimental approach

Valentina V. Stepanova*

Department of foreign languages, Law Institute. Peoples’ Friendship University of Russia (RUDN)

Abstract

It will not be an exaggeration to say that a contract is a document, which represents one of the most common types of legal texts.

A translator dealing with agreements has, among other things, to be skillful in finding correct translation solutions, which suggests

identifying and analyzing complicated legal-linguistic phenomena. The survey held was aimed at contributing to the development

of analytical skills, essential for rendering this type of legal texts. At the first stage, it involved identifying most common challenges,

such as equivalence/non-equivalence of terminology, translation of acronyms/abbreviations and phraseology, use of pronouns and some others. Then the selected fragments were offered for translation to a focus group of 12 participants. The tested skills involved both translation from English into Russian and from Russian into English. The evidence gathered was analyzed from the perspective

of translation strategies. To sort out the results the statistical method was applied.

Another objective of the study was to determine the educational needs of those who took part in the survey. Being a highly intellectual activity, legal translation suggests awareness in legal, cultural and linguistic fields of the source and target languages.

The aim of the questionnaire, offered to the respondents, was to outline the gaps in qualification and/or experience. The results, though predictable, confirmed the necessity of cross-discipline courses, covering wide range of relevant knowledge, skills and competences.

©

© 2017 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license

(http://creativecommons.org/licenses/by-nc-nd/4.0/).

2016 The Authors. Published by Elsevier Ltd.

Peer-review under responsibility of the organizing committee of EDUHEM 2016.

Peer-review under responsibility of the organizing committee of EDUHEM 2016.

Keywords: Type your keywords here, separated by semicolons ;

* Corresponding author. Tel.: +7 (903) 261-47-18 E-mail address: valentina0222@mail.ru

1877-0428 © 2017 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license

(http://creativecommons.org/licenses/by-nc-nd/4.0/).

Peer-review under responsibility of the organizing committee of EDUHEM 2016.

doi:10.1016/j.sbspro.2017.02.190

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1. Introduction

Valentina V. Stepanova / Procedia - Social and Behavioral Sciences 237 (2017) 1201 – 1207

Experiment is one of the most crucial tools of scientific research. Theoretical analysis of the material verified by a survey, test, brainstorming, laboratory experiment, clinical trial and other tools gains yet another proof that the hypothesis put at trial is correct. Similarly, an adverse result is equally important. Empirical research held within the studies of translation strategies of legal texts though did not prove or disprove the basic theory, evolved the necessary support to general findings and conclusions. Because of the evident difficulties in presenting the detailed report (we guess that very few readers speak or understand Russian), we will just outline the main stages and results of the experiment.

2. Research objectives and methodology

Conducting the research we aimed at identifying translation methods and strategies, which have been chosen by the focus group in attempt to resolve linguistic and extra linguistic challenges in the Russian/English pair of languages. The experiment consisted of three stages. The first one was devoted to selecting material. We elicited and marked polysemic words, ambiguous phrases, and complicated structures in the source texts, which might cause a certain difficulty for translation. Three Russian and three English fragments from different commercial agreements were chosen to be rendered into English/Russian. A group of professional translators and practicing lawyers (12 people altogether) with different educational backgrounds and experience were invited to participate. At our request, they translated the texts and responded to the questionnaire consisting of 10 questions. What we anticipated in the course of study was to ensure the need for certain knowledge and skills, with likely overlap between legal and linguistic needs of lawyers and translators. At the second stage, we analyzed the versions of translation and identified the strategies used by the participants. Then, the data gathered were assessed in terms of their frequency in percentage, with 100% for strategy used in all analyzed variants of translation of the same fragment. Finally, the information gathered through questionnaire was thoroughly studied. Among the issues of our interest were: qualification (university degrees in different fields of study and further courses), experience in legal practice and/or legal translation (in years), time given to translation under consideration, reference materials used (specialized dictionaries, including Multitran, Civil Code of the Russian Federation and others), particular translation difficulties involved, lacking knowledge and skills to perform the task, and the easier for translation source text (Russian or English). The obtained material was analyzed, interpreted and described.Here introduce the paper, and put a nome- nclature if necessary, in a box with the same font size as the rest of the paper. The paragraphs continue from here and are only separated by headings, subheadings, images and formulae. The section headings are arranged by numbers, bold and 10 pt. Here follows further instructions for authors.

3. Results and discussion

3.1. Linguistic analysis of surveyed translations

The analysis has shown that the most favoured translation strategies are functional equivalence, borrowings, literal translation, domestication, concretizing, descriptive explanation, and alteration. (1) Functional equivalence (83%) prevailing in translation of the following fragment:

In conducting the Study and performing their respective obligations hereunder, INSTITUTION will be acting as independent contractor, and not as an agent, partner, or employee, of SPONSOR. INVESTIGATOR is, and at all times during the term of this Agreement will be, an employee of INSTITUTION, and not of SPONSOR. INSTITUTION will have no authority to make agreements with third parties that are binding on SPONSOR. The difficulties involve the choice of the Russian equivalents to the term contractor. The best one is podryadchik. However, in back translations it is often rendered as executor or even performer, which is incorrect. Confusion of terms is traced on several occasions when one and the same word (Sponsor) was rendered as Poruchitel' in one case and Predstavitel' in two others. Such mistakes are likely to cause ambiguity and have to be checked and re-rechecked several times throughout the whole document.

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When translating the above sentence some of the participants chose the term Sponsor thus applying (2) the method of borrowing (50%). This term is justified since it has already entered the Russian language, both legal and business. Another translating technique, employed by the participants of the experiment, is (3) domestication (17%). This strategy was used at translating the following fragment of the contract from Russian into English:

Konfidencial'naya tekhnicheskaya informaciya - informaciya, sostavlyayushchaya kommercheskuyu tajnu, v tom chisle, no ne isklyuchitel'no: sekrety proizvodstva, rezul'taty issledovanij, svedeniya o kontragentah, usloviya cenoobrazovaniya, usloviya dogovorov, kontraktov, soglashenij; svedeniya lyubogo haraktera (proizvodstvennye, tekhnicheskie, ehkonomicheskie, organizacionnye i drugie), v tom chisle, o rezul'tatah intellektual'noj deyatel'nosti v nauchno-tekhnicheskoj sfere, a takzhe svedeniya o sposobah osushchestvleniya kommercheskoj i nekommercheskoj deyatel'nosti, kotorye imeyut dejstvitel'nuyu ili potencial'nuyu kommercheskuyu cennost' v silu neizvestnosti ih tret'im licam, k kotorym u tret'ih lic net svobodnogo dostupa na zakonnom osnovanii, dalee po tekstu «INFORMACIYA». Here, the expression sekrety proizvodstva is translated into English as know-how. That, in our opinion, is one of the best solutions. Obviously, the strategy of domestication in this case makes the translated expression capacious and conformable to the culture of the target language. Among other variants are, for instance, trade secrets and secrets of production. The latter seems to be an illustration of the literal translation, which is obviously not the best. We may offer the following translation of the above sentence: Confidential technical information is any information recognized as commercial secret including but not limited to know-how, research secret, business partner database, pricing conditions, terms and conditions of any contracts, agreements and covenants; information of any kind (manufacturing, technical, economic, organizational, etc.) including information about results of intellectual activities in any scientific and technical sphere as well as information about any ways of conducting commercial and non-commercial activity of operative or potential commercial value for third parties which have no free legal access to such information, hereafter referred to as INFORMATION”. (4) Literal translation (66%) from English into Russian is observed in the following example: Furthermore, in case of collection by the BUYER himself, the BUYER must ensure that the Products are transported in a closed truck and under the conditions mentioned above. Most of the analyzed translations demonstrate a literal approach resulting in: Krome togo, v sluchae sbora samim pokupatelem, pokupatel' dolzhen ubedit'sya, chto produkty transportiruyutsya v zakrytom gruzovike i na usloviyah, ukazannyh vyshe. However, the others use the (5) method of concretizing (33%), putting the meaning of the above clause in line with the idea expressed in the source language: Krome togo, v sluchae samovyvoza Pokupatelem, Pokupatel' dolzhen obespechit' perevozku Produkcii v zakrytyh gruzovyh transportnyh sredstvah i s soblyudeniem ukazannyh vyshe uslovij. (6) Descriptive explanation (33%) was rightly applied when translators observed the rule of decoding initials (abbreviations/acronyms) thus providing a recipient in the target language with an explanation, e.g. CHMP (Komitet po medicinskim produktam, prednaznachennym dlya cheloveka), СРМР (Komitet po patentovannym medicinskim produktam), SOPs (Standartnye operacionnye procedury Sponsora), CRO (Klinicheskaya issledovatel'skaya organizaciya). It is necessary to admit, that ignoring this method might lead to an awkward situation as in the following fragment:

The Products shall be stored, transported and distributed by BUYER in accordance with all process and quality control provisions according to GDP (Good Distribution Practice)… Abbreviation GDP, despite being explained in brackets, is, on one occasion, mistakenly rendered into Russian as a well-known term meaning a completely different concept, namely, Gross Domestic Product. However, the correct variant is given by the majority of participants (83%): Produkty hranyatsya, transportiruyutsya i raspredelyayutsya Pokupatelem s soblyudeniem vsekh processov i polozhenij o kontrole kachestva po PTD (Praktika Tovarnoj Distribucii). In addition, in the above translation the author also applies the method of (7) alteration. In fact, this technique is used in 40% of cases. Thus, the English phrase is rendered into Russian with the change in modality (the modal verb is omitted). One of the variants of translation suggests alteration of the syntactic structure of the sentence (passive voice in the source language changed into active voice in the target language with the modal verb used): Pokupatel' dolzhen hranit', transportirovat' i rasprostranyat' ProdukciyuAs it was numerously emphasized, accuracy in translation of legal agreements is of prime importance. That is why we focus on the analysis of the suggested translations with the purpose of cultivating the best practices on the one

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hand, and identifying typical mistakes to be avoided, on the other. Below you will find examples of translation of the fragments of commercial agreements by the respondents and the variant suggested by us. The elements in the texts, which, in our opinion, might be interpreted in a different way, are marked in bold.

Table 1.

Russian variant

Translation by the participant of the research

Suggested variant

V sluchae prosrochki v postavke tovarov Prodavec

uplachivaet Pokupatelyu shtraf, ischislyaemyj s pervogo dnya prosrochki v sleduyushchem razmere:

- v techenie pervyh 30 dnej 0,1% za kazhdyj den',

- v techenie sleduyushchih 30 dnej 0,5 % za

kazhdyj den', - v dal'nejshem 1% za kazhdyj den' prosrochki.

In case of delay in delivery of the goods the Seller shall pay the Buyer a penalty, calculated from the first day of delay in following amounts:

- Within the first 30 days of 0.1% per day,

- During the following 30 days, 0.5 % per day,

- Further 1% per day of delay.

In case of a delay in delivery of the goods the Seller shall pay the Buyer a penalty calculated from the first day of delay at the following rate:

-0.1 % for each day for the first 30 days of

the delay -0.5 % for each day for the following 30 days

- 1 % for each day of the delay thereafter.

One remark should be made in respect of the adverb pronoun thereafter. As most of the practicing lawyers know, such words are still common in agreements in spite of heavy criticism urging to use more contemporary language to make the texts of agreements easier for lay people to understand. Waving this dispute aside, we do think that though it belongs to legalese, it is still preferable in the meaning of v dal'nejshem, dalee (further, further on) in agreements.

Table 2.

Russian variant

Translation by the participant of the research

Suggested variant

Velichina shtrafa ne podlezhit izmeneniyu v arbitrazhnom poryadke. Uplata shtrafa i/ili neustojki ne osvobozhdaet Prodavca ot obyazatel'stv po vypolneniyu kontrakta.

The amount of penalty shall not be altered by arbitration. Payment of the fine and /or penalty shall not relieve the Seller of its obligations under the contract.

The amount of penalty is not subject to alteration in arbitration. Payment of any penalty or penalties shall not relieve the Seller of performance of its obligations under the present Contract.

The phrase subject to seems to be a good interpretation of podlezhat' chemu-to, representing an accepted way of rendering similar constructions, compare: zajmy, podlezhashchie vozvratu po pervomu trebovaniyu loans subject to call. Another challenge in the above translation is the possessive pronoun its. In accordance with convention the form it/its is used to address the parties to the agreement (Buyer and Seller, Lessor and Lessee, etc.) in the texts of legal instruments. Not all of the respondents were aware of that. The next passage for analysis:

Table 3

Russian variant

Translation by the participant of the research

Suggested variant

Pretenziya ob uplate shtrafa dolzhna byt' zayavlena v techenie 3 (tri) mesyacev. Pri ehtom otschet ehtogo sroka nachinaetsya so dnya vypolneniya obyazatel'stv po kontraktu ili so dnya, kogda shtraf po dannomu osnovaniyu dostig maksimal'nogo razmera, esli obyazatel'stvo ne bylo vypolneno do togo dnya.

Any demand for payment of any fine shall be claimed during three (3) months. This term is deemed to be counted since the day of execution of the Contract or the day when the fine on the above-mentioned ground reached the maximum amount if the obligation has not been discharged by this day.

A claim in respect of payment of the penalty is to be made within 3 (three) months. The time period is to begin from the date of performance of contractual obligations or from the date when the penalty amount on these grounds has reached its maximum if the obligation on its payment has not been fulfilled prior to this date.

In the first sentence, the translator used the pronoun any twice: Any demand for payment of any fine. Although any is typical of legal texts since it conveys the idea of inclusiveness, in this case its usage is believed to be redundant. Another remark concerns rendering the phrase vypolneniya obyazatel'stv po kontraktu as execution of the Contract. It seems to be doubtful since the expression possesses two incompatible meanings: 1) completing signing by all parties,

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2) completing all listed contractual actions. Thus, to avoid ambiguity we would suggest using the phrase performance of contractual obligations. This phrase is a close equivalent to the Russian word combination. As to the equivalents to Russian word shtraf, we are of the opinion that both variants (penalty, fine) in this context are acceptable. Nevertheless, one may come across a judgment that there exists a difference between these terms “Fine is a monetary penalty imposed in criminal matters” whereas “a penalty is a punitive measure that the law imposes for the performance of an act that is proscribed, or for the failure to perform a required act” (http://legal- dictionary.thefreedictionary.com). In other words, if you do not get a criminal record as with wrong parking or fare evasion, you have to pay penalty, but if you fail to pay the penalty, you will be taken to court and may then have to pay a fine and get a criminal record.

Table 4

Russian variant

Translation by the participant of the research

Suggested variant

by the participant of the research Suggested variant Shtraf budet uderzhivat'sya so schetov Prodavca pri

Shtraf budet uderzhivat'sya so schetov Prodavca pri oplate ih Pokupatelem. V sluchae, esli Pokupatel' po kakoj-libo prichine ne uderzhit shtraf pri oplate scheta Prodavca, poslednij obyazan oplatit' summu shtrafa po pervomu trebovaniyu Pokupatelya.

Penalty will be deducted from the seller's account when paying their buyers. If the Buyer for any reason will not hold penalty when paying the Seller, the latter shall pay an amount of the fine under the first requirement of the Buyer.

The penalty amount is to be deducted from the Seller's invoices when payment is effected by the Buyer. Should the Buyer fail to deduct the penalty sum from the Seller's invoice for any reason, the Seller is to pay it immediately at the Buyer's request.

In our opinion, the term invoice is more relevant than account since it is associated with the commercial document issued by a seller to a buyer, which is related to a sale transaction and indicates the products, quantities, and agreed prices for products or services the seller has provided the buyer with. In the above example, the commercial invoice is presumed. Yet, the translator has selected the term account instead; this choice can be explained by the lack of the wider context and/or awareness about the financial instruments used in commercial transactions. In fact, the aforesaid contract sets forth the condition regarding delays in delivery and the Seller's obligation thereupon. In particular, in case of delay the Seller is obliged to pay the Buyer a penalty at the rate of … % of the value of the equipment. In fact, the Buyer will actually pay less sum against the Seller's invoice decreasing the value to be paid by the penalty sum at the rate specified in the previous clause. Besides, we consider should to be more appropriate in this sentence since it is more emphatic and attracts the parties’ attention to the condition set forth in the contract. As for the expression uderzhat' shtraf, the most adequate equivalent to convey the idea of this clause is to translate it into English as to deduct/withhold the penalty sum. The participant of the research should have incorporated the information concerning deduction into the translated document. However, he/she followed the path of least resistance by applying the literal translation of this phrase, thus having failed to provide a faithful text.

4. Discussion and conclusion

The research showed that translators tend to resolve problems of legal terminological incongruities applying various translation strategies. Most of translations made by the engaged focus group demonstrated unformalized, serious approach by identifying a correct term from a number of possible variants; they selected an appropriate strategy of translation and in the final analysis made correct legal-linguistic decisions. Functional approach to legal texts asserted that translators were well informed in legal matters of both cultures and suggested adequate translation clear to the sophisticated target reader. The method allowed producing similar legal effect contained in the source text. Literal translation signaled that translator experienced some difficulties either in understanding the context/situation/scope of the terms meaning or habitual ways of legal performance or identifying the right term to render the original meaning. Least contributing to clarity, the technique is resort to in case of frustration. Borrowing is of two facets. It is acceptable when the term is well known and widely used in the target language but can bring about reader’s resistance if it seems alien and not clear enough. The whole group escaped the problem

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offering reasonable variants of translation. Method of concretizing spoke about interpreter’s maturity in translating commercial agreements. However, only one third of respondents demonstrated this skill. Descriptive explanation makes things clear both for the interpreter and the reader as it names things as they are. Not all of the focus interpreters employed it thus putting the audience in the situation when they had to do certain intellectual work of guessing or checking the reference sources. Alteration demonstrated good sense of language allowing to change parts of speech or verb aspect in the target interpretation thus adjusting the text to comfortable reading. Domestication as a translation technique was also used for similar end. Avoiding calquing, borrowing and neologisms where it was possible, it contributed to comfort in reading and loyalty to legal traditions of the target culture.

4.1. Extra-linguistic aspects defined by the survey

There is one observation resulted from this experiment that we would like to comment on separately. More experienced translators (in our survey we were considering experience from two viewpoints - legal educational background and translation practice) tend to demonstrate more accurate and refined translations. That suggests that translation of legal documents involving legal language with all the scope of its distinguishing features is not a matter of linguistics exclusively. In other words, our analysis has confirmed the initial assumption based on the necessity or at least desirability for those involved to complete an integrated training in both legal and translation practices embracing two relevant legal and language systems. Trying not to be subjective, we are also inclined to think that any translator-linguist dealing with commercial contracts will undoubtedly benefit from a special training in the legal domain. Apart from the analysis aimed at identifying some problem areas in translation and the ways of addressing them, we also studied the questionnaire answers. An important objective of our study was to determine the educational needs of those who took part in the survey. We constructed our questionnaire so that it contained open questions, which excluded alternative answers. In addition to open questions, there were multiple-choice questions. They offered respondents a number of options from which to choose, giving at the same time an opportunity to introduce a few of their own. Once gathered and organized, the data were interpreted using the elements of statistical method of analysis. It is worth mentioning that 40% of those participating in the survey have a legal background and 60% of respondents have a linguistic background. As for further qualifications, 67% of those involved have an additional education (33% - in management, 33, 3% - in translation studies). One of the crucial issues of the survey was the question of experience in both legal and translation spheres with emphases on translation of agreements. The answers obtained have revealed an interconnection between experience in translation of contracts and their correct interpretation into the target language from both linguistic and legal points of view. Most of respondents have admitted using reference materials such as Lingvo (8%), relevant Internet sources (8%) and on-line dictionary Multitran (83%). Among the difficulties, the participants mentioned medical abbreviations, lack of extended context and lack of legal qualification preventing them to understand the text correctly. Some of the respondents also highlighted certain stylistic deficiencies of the source text (in Russian). The central problem, however, was the one pertaining to the lack of necessary skills and knowledge in the field of legal translation studies. The answers confirmed our hypothesis concerning the need for interdisciplinary background studies.

4.2. Findings

Thus, the present survey, concerning the scope of knowledge and skills needed to feel confident in legal translation, has brought us to the following conclusion. Since legal and linguistic disciplines overlap in certain areas due to the same subject under study, interdisciplinary programme modules jointly for legal translators and for lawyers who aim

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to operate internationally and/or translate legal texts should be clearly recognized. Evidently, this work has already been tackled since the department of foreign languages of the Law Institute of Peoples’ Friendship University of Russia (RUDN) launched an innovative master's programme Legal Translation and Interpreting as a pilot academic course in Russia. It engages candidates with different educational backgrounds (foreign students among them) who are most motivated and enthusiastic in their studies. The students are doing their best to master necessary competences and to acquire practical skills in various aspects of legal English. Language theories, translation methods, practical classes are built into the programme along with legal studies looked at from language perspective. This is supported by courses of cross-cultural communication and translator’s ethics which, being the inter-disciplinary subjects, are balancing the study. Candidates with linguistic, legal or other backgrounds can acquire the qualification so much needed in the time of tight international cooperation and tough market competition.

References

Haigh, R. (2009). Legal English. (2d ed.). Routledge: Cavendish. Jopek-Bosiacka, A. (2010). Legal Communication: A Cross-Cultural Perspective. Warsaw: Warsaw University Press. Mossop, B. (2006). Revising and Editing for Translators. Second Edition. Manchester: St. Jerome Publishing. Rek Harrop, J. (2010). Key aspects and problem areas in the jurislinguistic translation of certain forms of legal contracts in terms of terminology transfer between two different legal systems: Polish and English. MA University of Birmingham (UK), DPSI (Law) Chartered Institute of Linguists (UK) Retrieved from: http://www.harroptranslations.com