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Both Dual Language and Bilingual Arbitration Clauses Are Common in Sino
Both Dual Language and Bilingual Arbitration Clauses Are Common in Sino
foreign agreements. They are usually the result of a compromise in the negotiation of
the commercial contract. They both potentially have far-reaching implications for the
arbitration, including increasing the cost and complexity of the process without any
corresponding benefit for the parties. This article identifies a number of threshold
issues for parties to consider when dealing with the decision to adopt these clauses or,
if they have already adopted them, how to deal with them in practice.
First, there is an important distinction to draw between what the authors refer to as
“dual language” and “bilingual” arbitrations. “Dual language” arbitrations are
conducted in two languages, for example, English and Chinese. “Bilingual”
arbitrations by contrast allow both languages to be used interchangeably. The choice
of procedure can have a significant impact upon, for instance, arbitrator selection (see
point 3, below). The authors refer to both forms as “bilingual”, unless there is a reason
to distinguish between the two.
Point 1: Consider whether you genuinely need a bilingual arbitration. The default
choice should always be a single language of arbitration unless there is a compelling
reason to adopt bilingual arbitration. This is not only in order to avoid additional costs
and inefficiencies (referred to in point 2), but also because international arbitration
tribunals and counsel are used to accommodating different languages into the
procedure. For example, a Chinese-speaking witness will be entitled to give evidence
in his or her own language, which will, in turn, be translated into English. Similarly,
the relevant parts of a party’s factual exhibits in Chinese will also be translated into
English. In Chinese-language arbitrations, the same rules will apply to English-
language witnesses’ testimony and exhibits.
Point 2: Consider cost and time implications. Strictly speaking, “dual language”
arbitrations may require all correspondence, pleadings, written and oral legal
submissions, witness statements, expert reports, exhibits and other legal documents to
be translated. A complex case might involve many thousands of pages of legal
submissions and exhibits, making the cost and time involved in the translation very
significant. For oral hearings, a party will likewise need to translate legal
presentations, and any examination of witnesses and experts. This, in turn, will
necessitate a longer hearing. The hearing transcript will need to be produced in both
languages.
The process will raise further procedural and logistical issues that require addressing:
For instance, what will be the process for resolving one party’s challenges to
translations? If the arbitration is an administered one, will the institution be required
to communicate in both languages also, and does it have the resources to do so?
Further, and more generally, dual and bilingual arbitrations will, in practice, tend to
gravitate towards one dominant language, with the proceeding being mainly
conducted in one language. This means that there will usually be a number of
opportunities for the parties, counsel and the tribunal to revisit the procedure to see if
there is any way to make the procedure more efficient, tailored to the particular
dispute and, of course, more cost effective.