No original content here– just a reiteration of something I urge lawyers to always be cognizant of: which language will govern a contract. In Five Essential Things– Elaborated, Part 4: Choice of Language, I stressed the importance of choosing a contract’s operative language in the contract itself, and making sure that an accurate translation of that operative language makes the other side aware of its terms. Horrific things result if lawyers miss the mark.
- Remember the Chicken Case from 1L Contracts? Yeah, it’s a thing.
- Ever been working hard at your job, only to have some Hungarian say his hovercraft is full of eels?
Today’s post over at the China Law Blog is incredibly timely. I don’t want to steal Adams’ and Dan’s thunder, but this continues to be an incredible worry that U.S. negotiators may be glossing over. In The US-China “Phase One” Deal — No Text, No Translation. What, Me Worry?, the fellows from Seattle highlight a potential disaster.
Treasury Secretary Steve Mnuchin has dismissed “rumors” that China’s commitments in the deal had been changed in translation. Of course, since no one has seen either the English or Chinese versions of any drafts of the deal, it is impossible to do a side-by-side comparison to see if the English and Chinese versions are consistent or what, if any, changes were made from prior drafts, also undisclosed. There is though a very significant possibility the Chinese version will not be entirely consistent with the U.S. English version and the Chinese will think they have agreed to something different from what President Trump and his team believe they have agreed to.
Yeah. What could possibly go wrong?
Quite a bit, actually. Remember that a treaty is nothing more than a special kind of contract– with all the elements like offer, acceptance, meeting of the minds, sometimes adhesion. And if the terms are ambiguous, confusing, conflicting… oy vey, the problems that ensue.
Just ask the Māori tribe in what is now known as Middle Earth. The Treaty of Waitangi didn’t work out too well for them, because their translation didn’t jive with the English version that was backed up by the Royal Navy’s heavy guns.
Secretary Mnuchin would do well to pay attention.