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06/03/19

Lost in translation

Lost in translation

Lost in translation

Mark Castell, Regional Managing Director and Head of Diales in Europe takes a ‘grey haired’ view on dispute avoidance and resolution in mainland Europe (part 2) - language scenarios to be avoided.

In issue 15 of the Driver Trett Digest, I reflected on the last 14 years of my professional life, which have been spent in consultancy based in the Netherlands. I looked at some aspects of dispute avoidance and resolution from a mainland European perspective.

In this article, I want to look at three particular instances where the use of different languages had an impact on my work as an appointed expert witness. The first concerns an example of where using ‘foreign languages’ in a contract contributed to the dispute, the remaining two are examples of challenges that are faced where information is available in different languages.

1. A contract written in two different languages that contributed to a dispute

This occurred on an infrastructure project in Southern Europe. The contractor was directly approached by the employer and asked if it would be interested in negotiating a contract to undertake civil engineering works to a major river crossing. The contractor agreed and the subsequent negotiations were undertaken in English; a ‘foreign’ language to both contractor and employer.

At the end of the negotiations, the employer informed the contractor that it wished the contract to be written in two different languages; English and the employer’s own language. Furthermore, that the employer’s own language should take priority in case of anomaly. This was duly agreed by the contractor and the completed contract documents were formatted so that the wording was in the two different languages side-by-side on each page.

During the execution phase of the project, problems started to occur because the employer’s site representatives were requesting the contractor to do things that the contractor considered to be different to the contract requirements, but the employer then refused to accept that this was the case. Upon investigation, it became apparent that the cause of this ‘misunderstanding’ was that the contract wording, in the employer’s own language, was not an accurate translation of the English version that had been the outcome of the negotiations between the parties.

As stated previously, the employer’s own language was agreed to have priority in case of anomaly and, perhaps as a result, the parties were unable to settle their differences amicably and resorted to international arbitration. I was appointed by the contractor as their quantum expert in the subsequent proceedings. Whilst my brief did not include the interpretation of the contract, I learnt of the background to the dispute during my investigations.

2. Project documentation in one language but the submissions to the court written in a different one

A project between two Dutch businesses had English as the contract and project language, yet it was agreed that any disputes arising under it would be referred to the Dutch courts for resolution. Unfortunately, problems arose on the project with late issue of design information and free-issue material by the employer; which caused the contractor to suffer delay and reduced productivity. In addition to the resulting delay, this led to the contractor incurring additional costs for which it submitted claims in the English language.

Attempts at an amicable settlement failed and the dispute was referred to the Dutch courts. At a certain point in the proceedings, the court identified a need for a court-appointed expert to give a view on the delay and quantum issues and asked the parties to agree the appointment of an individual.

As I was known by both parties, and after discussions over the brief that included me being assured that the majority of the documents would be in English, the parties agreed to my appointment. This was then ratified by the court.

After confirmation of my appointment, I received copies of the documents relied upon by the parties that were both voluminous in nature but also mainly in the Dutch language. Furthermore, it was confirmed that my report would now also be required in Dutch, rather than English as initially proposed.

Whilst I can communicate in Dutch to a certain level, my linguistic abilities are not sufficient to read and fully understand all of the documentation that I received, or to draft a report in that language. Thankfully a solution that avoided the costs and potential problems of translation, yet still enabled my input, was easily found. The solution was a native Dutch speaking colleague, Hugo-Frans Bol, with whom I worked on the investigations. We separated tasks between us wherever possible, to avoid duplication of effort, and were able to minimise the time we had to spend updating each other as a result of the many years that we had previously worked together.

The final report and the opinions on the delay and disruption suffered by the contractor were accepted by the court and incorporated in its decision.

3. Substantiation for claims is in a different language to that used on the project

This is something that I have encountered on a number of instances, but this example concerns an appointment as quantum expert, for an International Chamber of Commerce (ICC) arbitration, on a project in Central Eastern Europe.

The contract and project language was English, as were all pleadings submitted as part of the arbitration. However, a significant extent of the back-up documentation for the quantum of the claims (i.e. invoices) were in the local language and I needed to understand their contents to fulfil my brief.

After discussion with the party that appointed me (the contractor) and their legal advisors, I proposed that I used the contractor’s local accountant as my ‘assistant’. As part of the claims were cost based, the accountant had provided copies of relevant invoices and so was already known to me. He consequently had some knowledge of what was happening.

Following the agreement of the contractor and its legal advisors to this way forward, I directed the accountant to review the relevant invoices (there were several hundred), identify the month in which the invoiced services were actually undertaken (as distinct from the month that the invoice was issued), and then allocate the invoiced costs to the relevant month and to certain categories that I had defined. The output of this exercise was used to assist me in forming my opinions on the valuation of certain cost-based claims.

Whilst I was able to conduct certain checks of the output, I could not verify the work. This was clearly explained in my report, which was supplemented by a signed statement from the accountant. The employer, its legal advisors, and the quantum expert appointed by them raised no objections to this when my report was responded to.

Conclusion

Dealing with different languages is a common occurrence on international projects and one that I come across daily as our mainland European offices (in France, Germany and the Netherlands) all work in a number of languages other than English.

I first recognised this when I lived and worked in France nearly 20 years ago. My then colleague and I did not know certain words in French and the representatives from the French contractor we were meeting with did not know the words in English. The solution, we drew pictures.

From my experiences, I consider that language is a hurdle to be overcome in order to communicate and it is not a barrier to communication. How you overcome this hurdle depends on the circumstances.

Articles  /  Europe  /  Global

Articles  /  Europe  /  Global

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