Curriculum, language and the law

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Irina I. Chironova

State University Moscow (Russia)
Comparative Analysis of American, British and Russian Legal Systems and Terminology
Which legal system does Russia belong to? The question is not so easy as it may seen. The obvious answer is that Russia belongs to the continental law, but some scholars speak about its dual character and a large gap existing between formal law and “live law”.

In my presentation I am going to dwell on the following:

1. The place occupied by the Russian legal system among other systems of law (a brief comparative study of British, American and Russian legal systems).

2. Different nature of legal systems leads to translation problems. Terminology systems are very difficult to compare because the volume of meaning of similar notions does not coincide in different languages (Russian-English examples will be given).

3. Translation equivalents are easy to find in a dictionary but often cause much confusion and one can never be sure about the quality of translation because there are many types of equivalents, including “partial cognates”: equivalents with a more narrow (broader) meaning or with overlapping meanings (examples will follow).

Translation theory and practice deal mostly with comparative studies of lexis, but for the legal translation it is very important to compare not only vocabulary in the Russian and English languages but legal systems as well.

Marta Chromá

Charles University Law School, Prague (Czech Republic)
Semantic and Legal Interpretation: Clash or Accord?
The purpose of my talk will be to consider the issue of interpreting (construing) the source text by a translator in the course of his or her translating legal information into the target language and target legal system, and to concentrate on the difference between “semantic” and “legal” interpretation in that process.

The primary objective of legal translation is that the target recipient should be provided with as explicit, extensive and precise legal information in the target language as is contained in the source text, complemented with facts rendering the original information fully comprehensible in the different legal environment and culture.

Semantic interpretation as we understand the term for the purposes of translation means that words or phrases are assigned their meaning regardless of context, or the meaning which is considered to be the most “usual” (generally given as the first option in a general dictionary). Where the legal context is considered in looking for an adequate meaning legal interpretation is in question. Legal interpretation cannot dispense with a legal knowledge of the respective topic (the better knowledge – the more precise interpretation). What in fact happens when the translator “interprets” the source text or its segment? He or she tries to identify its most probable meaning which can be transferred into the target language: how “successful” the translator of a legal text will be depends upon his or her legal knowledge that helps to pick the correct, or the closest, or most adequate target language equivalent. The translator should also consider how the target text, i.e. his or her product, can be interpreted by lawyers in the target legal system, and should avoid translational equivalents (on all levels of translation) that might lead to ambiguous interpretation. Several examples will illustrate the issue.

Tamara Ćapeta

Faculty of Law, University of Zagreb (Croatia)
Does the ECJ Compare Different Language Versions of EU Law?
In its judgment in case CILFIT (case 283/81, [1982] ECR 3415), the European Court of Justice used the fact that EU law exists in many equally valid linguistic versions, as an argument to persuade national courts of final instance to refer to the ECJ the issues of interpretation of Community law under preliminary ruling procedure. In this way, the ECJ tried to stop the evolving practice of highest national courts to avoid co-operation with the ECJ in finding the meaning of Community law by relying on the so called “act clair” doctrine. The argument goes that an interpretation of Community law involves a comparison of the different language versions (paragraph 18 of the judgment in case CILFIT). The ECJ was implicitly suggesting that national courts are not equipped with necessary tools to perform such linguistic comparison, whereas the ECJ is. The logical conclusion, then, is that national courts of last instance must refer the issue of interpretation to the ECJ. The aim of this research is to find out whether this argument of the ECJ has any real value. The paper will, therefore, present the findings of empirical research of ECJ judgments in preliminary ruling in interpretation with the aim to assess whether the ECJ really performs linguistic comparisons, how often, with which purpose and which languages are taken into consideration. If this does not happen in front of the ECJ, or happens only rarely, as we expect to find, then the CILFIT linguistic argument is nothing but empty Court’s rhetoric.

Pierangela Diadori

Università per Stranieri Siena (Italy)
Linguaggio giuridico in ambito italo-tedesco:

traduzione e insegnamento linguistico a apprendenti stranieri
Il progetto JURA (“Linguaggio giuridico in ambito italo-tedesco: traduzione e insegnamento linguistico a apprendenti stranieri”), approvato nel 2005 nell’ambito del programma per l’internazionalizzazione della ricerca italiana, ha lo scopo di creare un pool di esperti che condividano le proprie esperienze per ideare un modello di intervento per la formazione di docenti e traduttori nell’ambito dell’insegnamento del linguaggio giuridico a studenti universitari (italiano giuridico per germanofoni, tedesco giuridico per italofoni).

Cofinanziato dal Ministero dell’Istruzione, della Ricerca e dell’Università, il progetto coinvolge, oltre all’Università per Stranieri di Siena, specialista nella didattica dell’italiano a stranieri, anche la Facoltà di Lingue dell’Università di Genova (cattedra di tedesco e Master in traduzione giuridica italiano-tedesco), la Friedrich-Alexander-Universität Erlangen-Nürnberg (che eroga corsi di italiano giuridico per germanofoni); lo Sprachen- und Dolmetscherinstitut di Monaco di Baviera (con corsi di traduzione giuridica italiano-tedesco); l’Ecole d’Interpretation et de Traduction dell’Università di Ginevra (con corsi di traduzione giuridica plurilingue).

Il progetto (che finanzia solo la mobilità dei ricercatori) prevede alcuni incontri in presenza presso le rispettive sedi di appartenenza dei partner, finalizzati all’elaborazione di una bibliografia mirata, di una banca dati informatica e di una mappatura degli enti che offrono italiano e tedesco giuridico.

L'obiettivo del progetto è quello di fornire una descrizione aggiornata (riferita al periodo 2005-2008) delle offerte formative in alcune università campione in area germanofona e italofona, nel campo dell'insegnamento della microlingua giuridica a apprendenti stranieri (italiano e tedesco a contatto).

Il prodotto finale sarà un modello di intervento (completo di saggi teorici e banche dati aggiornabili) destinato alla formazione dei docenti e dei traduttori che operano nell'ambito del linguaggio giuridico italiano/tedesco:

– in realtà accademiche italofone (in Italia o in Svizzera);

– in realtà accademiche germanofone (in Germania, Austria, Svizzera);

– in realtà accademiche inserite in contesti bilingui o plurilingui (Alto Adige, Svizzera).

Agnieszka Doczekalska

European University Institute, Firenze (Italy)
The Translation Paradox in Drafting of EU Multilingual Law

Legal and Translation Studies’ Perspective
In order to preserve real equality between the authentic language versions of multilingual law, legal acts should be simultaneously drafted in all languages. However, European Union law – expressed in twenty-three languages – is prepared, in practice, by means of translation. At the same time, from a legal standpoint, the term ‘translation’, which implies inferiority, cannot be used in reference to the authentic language versions, which are regarded as originals. This contradiction discloses the paradox which has been explained by Correia as follows: “In practice, Community law is inconceivable without translation, whereas in strictly legal terms Community law is inconceivable with it”.

In this paper, legal and translatological analysis of the paradox demonstrates that legal requirements and the practice of legal multilingualism are more congruent than may appear at first glance. At the outset, the meaning of equal authenticity and the authentication process are analysed from the legal standpoint. This reveals that language versions of a legal act are not equally authentic when they are drafted but when the drafting process is finished and a legal act is adopted. Accordingly, before the authentication of language versions, the term ‘translation’ and the methodology of translation studies can be applied. This allows conducting the translatological analysis of legal drafting within EU institutions, which demonstrates that all languages participate in all drafting stages and influence each other. Therefore, although some elements of translation are involved in the drafting of EU multilingual law, source and target texts are indistinguishable and the equality of all languages is preserved during this process.

Michaela Domijan-Arneri

TLT Solicitors (UK)
Problems in Multilingual Litigation – A Practical Perspective
Language is a medium which plays an instrumental role in the process of conveying ideas. Whereas our perception of language in its everyday use as a mere invisible gel that facilitates communication may be somewhat underrated, the value of the impact of language distinctly manifests itself through the relationship between language and law. The legal arena demands that lawyers and, particularly in this context, litigators, apply a tightly knit fabric of precision when using language in the performance of their work. From the litigator's perspective language is a power tool that intertwines with strategy and tactics, allows for manipulation of ideas and has remarkable potential to affect the end result.

In international litigation there is often more than one language at play since such proceedings often involve parties from different states and jurisdictions and the use of information and documents that are originally prepared in different languages. Consequently, litigators are faced with the ultimate challenge of multilingual proceedings - how to achieve and maintain the clarity and precision of language against the backdrop of various competing languages?

The answer to this depends on a number of factors. As an English solicitor practicing in the ambit of international commercial and maritime litigation, I have encountered particular difficulties in respect of the following factors:

(1) collection and reviewing of documents and information in disclosure or discovery

stage of proceedings;

(2) increasing use of computer-generated translations;

(3) using foreign law as evidence; and

(4) use of translators in a bilingual hearing.

Whilst the aim of this presentation is to highlight common recurring problems in multilingual litigation in reference to case examples from my practical experience, the above list is by no means exhaustive.

Janka Doranić

Ministry of Foreign Affairs and European Integration, Zagreb (Croatia)
Problems of Translation into English in the Field of Company Law:

Documents for Company Formation in Croatia
Mobility is one of the key words of modern global society and the increased need for communication on international level is one of its consequences. The four initial fields of the acquis communautaire deal with mobility and communication – Freedom of movement of capital, goods, persons and services. As language is the means of communication within a community and law the means of regulating relations within, the three are very closely inter-related. Translation always implicates problems, but translating legal texts is additionally complicated as legal terms are system-bound and legal systems of various countries are incongruent. The English language is bound to the common law system which significantly differs from the Croatian legal system, thus creating difficulties in the translation of Croatian legal texts into English. In order to incorporate a company in Croatia, the Croatian Companies Act prescribes the following documents to be submitted to the Commercial Court for registration regardless of the fact if the formation is being performed by a Croatian or an alien citizen: a Declaration on incorporation or Articles of association, a List of company founders, a List of directors/persons authorised for representation, a Declaration of authorised person accepting the appointment, a company member’s typical signature and some others. When an alien citizen is the founder, all the listed documents are to be signed in a notary public’s office in the presence of an official interpreter, in order for the legal transaction to be valid. All of them may be translated into English in various ways, but when searching for a translation equivalent, one has to decide between the varieties of English legal terminology, explore the function of a potential translation equivalent and use either a functional or alternative equivalent use it consistently. The objective is to achieve accurate transmission of legal information.

Jan Engberg – Isolde Burr

University of Aarhus (Denmark) – University of Cologne (Germany) –
Designing Curricula on Legal Language for Translators and Other Professionals
Especially in the last 30 years or so, the term legal linguistics (or Rechtslinguistik or Jurilingistique) has become ever more popular as denominator of a rising field of interdisciplinary work, including especially scholars from language as well as from law, but also from neighbouring fields like philosophy and sociology. And in the field of EU law the jurilinguistes have a well-defined role to play in the course of the legislation process. However, the concept is still too young for it to have a well-defined and internationally accepted referential field, although agreement exists about the core characteristics: The discipline engages in investigations of law texts (mainly written) as linguistic products of communication. In our presentation, we will start out by giving a brief survey of some of the most central strands of recent development within the discipline, mainly in the field of generic integrity and in the field of relations between linguistic elements and (interpretation of) meaning in law.

On this basis, we want to propose some general ideas concerning what types of courses and what types of student would be relevant to subsume under the name of legal linguistics, what skills should be acquired in such courses, what professions should be targeted, etc. We will do this by presenting the curricula of two different courses, in which we are both involved, i.e. the “Studiengang Europäische Rechtslinguistik” at the University of Cologne and the course in specialised (among other things legal) translation at the University of Aarhus. The Cologne programme is a novel BA/MA-programme combining studies in law with studies in linguistics. It is oriented towards European law and therefore is based on a wide international network of cooperating partners. The Aarhus programme, on the other hand, is a more traditional MA translation programme emphasising research skills and the inclusion of recent knowledge about legal linguistics and especially legal semantics. Through the comparison of the two curricula we want to show possible points of future development in both types of programme.

Laura ErvoJohn Pointing Leslie Blake

University of Turku (Finland) – Kingston University (UK) – University of Surrey (UK) –
Fair Trial as Discourse: The New Scandinavian Communicative Court Culture

Contrasted with the Decline of 'Orality' in the English Legal System
A fair trial can be seen as a discourse.   Its core is the adversarial right, which covers more than the formal opportunity to be heard.   In its modern form, its importance lies in the chance which it gives to litigants for active involvement.   This kind of 'adversarialism' can be illustrated by the 'Theory of Discourse Ethics'.  Orality and immediacy are the key principles when a trial is looked at as a communicative activity.

In Scandinavia, the recently reformed civil procedures have brought fundamental changes to judicial culture.   There is now more interaction and dialogue.   Also the role of 'conflict resolution' has been increasing and more emphasis has been placed on friendly settlements, procedural justice, and a 'client-centred' approach.

By contrast, in England and Wales (the jurisdiction which most famously developed the adversarial system and gave rise to the concept of the litigants' ‘day in court’, instead of a Kafka-like ‘process’) there has been a trend away from 'orality' towards written legal submissions, ‘paper hearings’, and ever-lengthier written judgements handed down by the court or tribunal, long after the close of the hearing, in the place of the old system of extempory judgements, given by word of mouth, immediately after closing submissions have been heard.

This paper will analyse these contrasting trends and discuss the implications for any system of justice striving towards a fair hearing.

Celina Frade

Universidade Federal Rural do Rio de Janeiro (Brazil)
Generic Variation Across International Arbitration Practices
Notwithstanding its long-time tradition, only after the enactment of Arbitration Law 9.307/96 was Brazil definitely inserted into the real world of international arbitration. Updated records show that there is a growing number of controversies involving Brazilian parties/cases in major international arbitration chambers such as ICC and AAA. Consequently, some standard common-law mechanisms and tools accepted in international arbitration proceedings which are not features of civil law litigation have gradually been imported by Brazilian arbitration practitioners. Such mechanisms include discovery, expert witnesses, adverse inference, bottom-up approach, factual contexts, common law orientation for evidence and cross-examination and may be completely or partly unknown to civil lawyers in general. This paper aims at (a) investigating the formation of questions in English and, in particular, common-law style cross-examination as opposed to civil-law questioning tradition and (b) providing Brazilian arbitration practitioners with a guide to questioning under a linguistic-pragmatic approach as part of his/her preparation of conducting witness examination. The claim is that even our most experienced domestic arbitration practitioners may face potential difficulties during the course of international arbitration proceedings wherein common-law tools, such as cross-examination for adverse witnesses, are used.

Milica Gačić

University of Zagreb (Croatia)
Linguistic Analysis of EUR-Lex > Process and Players

A Tool for Teaching the Basics of European Legal English, French and German

and Their Translations
Using the corpus-based approach, departing from the definitions of morphosyntax and lexicogrammar, and by analysing meanings of language units from the point of view of their semantics, structure (grammar) and sentence functions, the author would like, through a contrastive approach, point out characteristic features and differences among languages in the legal field. The results of the analysis could not only shed light on the linguistic characteristics but be further developed into teaching materials for students who need the knowledge of the basics of the European legal system or as a starting material for more advanced studies.

It is necessary that the analysis goes beyond the level of simple lexical studies in order to show the text-related characteristics, which could be more relevant for the translation domain.

Claudia General

University of Applied Sciences, Winterthur
Qualification and Quality Control of Court Interpreters in Switzerland

The Canton Zurich as an Example
Two theses on court interpreting in Switzerland from the University of Applied Sciences Zurich-Winterthur concluded that until recently a person could be listed on the register of court interpreters without providing evidence of any interpreter training. The only prerequisite was "no criminal record." It was assumed that a person speaking or understanding two languages was automatically able to work as an interpreter. The register was rather like a list of footballers used in penalty shootouts. Anyone who performed well remained on the list; otherwise his or her name was deleted.

The canton of Zurich court authorities realized, however, that an unqualified person not only cost time and money during a court trial, but could actually detract from pursuit of the ultimate aim, i.e. assisting someone unable to speak one of the Swiss official languages. Furthermore the right to a fair trial according to article 6 of the European Convention on Human Rights will not be guaranteed if the court interpreter is not qualified.

The Department of Continuous Education and the Department of Conference Interpreting at the University of Applied Sciences Zurich-Winterthur worked with the courts in the canton of Zurich to develop three projects for the qualification of court interpreters: a two-day introductory course consisting of eight hours of law and eight hours of interpreting, an eight-day seminar with basic interpreting techniques being taught for seven hours a day and a two-semester course to instruct the interpreter in the workings of the judicial system.

In the meantime the participation in the two-day course and the following exams have become obligatory for all interpreters wishing to be listed on the register.

Christopher Goddard

Riga Graduate School of Law (Latvia)
A Professional Master’s Programme in Legal Linguistics:

A Possible Syndicated Model for Translators and Lawyers?
At the initiative of the Latvian government, the author coordinated a multidiscipinary team in conceptualizing and developing a model for a one-year (three-semester) professional training programme for legal linguists (MA in legal linguistics) in support of EU organizations, state administrative institutions, and others in the private sector.

Programme aims are:

1. to provide linguistic competence to lawyers daily engaged in drafting, revising, or editing legal acts, and to control the legal and linguistic correctness of legal texts translated from other languages;

2. to enhance the professional competence of legal translators by adding theoretical knowledge of the legal landscape.

The programme is officially approved in Latvia. The first year of the programme runs from September 2007 to October 2008.

This paper identifies and discusses the theoretical issues involved, and how these are being addressed in practice, especially bearing in mind that this programme appears to be the first such programme of its kind.

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