仲裁:SPEAKING YOUR LANGUAGE? WHAT IS THE LANGUAGE OF RESOLUTION IN THE ASIA PACIFIC REGION?

Transcript of the 2010 International Arbitration Lecture - Sally A. Harpole Presentation.

Introduction

It is a very deep honour to be here today and to have been invited to speak at the ninth annual Clayton Utz International Arbitration Lecture supported by University of Sydney. The themes for this wonderful lecture series, “The Language of Resolution” and “Universally Speaking”, caught my attention. That led to this lecture having the first ever bilingual title of the series, “仲裁:Speaking your language?” The Chinese characters 仲裁 mean “arbitration. ”. By the way, get your tones right on that one. Whereas 仲裁 zhòngcái means “arbitration”, 中彩 , zhòngcǎi means “ to win the lottery”. True, the parties to some arbitrations may think there is little difference. But we arbitrators would like to believe that the difference is significant. The term, “Speaking your language?” suggests a range of issues from linguistic to cultural. I will talk about which languages are actually used in Asian arbitrations, how that is decided and what that means for the parties, their lawyers and the Arbitral Tribunal. But first, let’s take a look at some numbers.

Any discussion of Asia’s rapid economic and, indeed, political rise tends to be studded with staggering statistics and global rankings. For example, in the year 2000, Asia's share of global GDP was 19%. Now, it is 27%. By 2015 the IMF expects it will be 32%. Over the past ten years China's growth rate has averaged 9.9% compared to the global average of 3.6% . And earlier this month China became the third most powerful voting member of the IMF after the US and Japan, vaulting over the European countries.

There are similar amazing figures for Asian arbitration which I want to summarize for you today. But with a caveat. Statistics on Asian arbitration are hard to verify. We have numerous arbitral institutions in Asia, each of which maintains records in its own unique way. Many figures are neither public nor consolidated. And the widespread use throughout the region of ad hoc arbitration means there are a lot of hearings going on out there which aren’t captured in anybody’s database. In the face of this challenge, I am grateful to those institutions and practitioners who have generously shared information with me as I prepared for this talk.

Large number of Chinese cases

Let me start with the nation that just produced the world’s fastest super computer, China. Our statistics here may be a bit more solid because Chinese arbitration law contemplates that arbitration within China shall be institutional (rather than ad hoc). Figures provided by China’s leading arbitral institutions in cities like Beijing, Tianjin and Guangzhou, as well as the principal arbitration commission the China International Economic and Trade Arbitration Commission ( CIETAC), show that a total of over 65,000 new cases were received nationwide in only one year, 2008. Only a small portion of those cases were classified as “international”. However, so-called “domestic” cases include those involving foreign-invested enterprises, a significant sector of China’s economy. In the international sphere, it is widely recognized that CIETAC occupies a place among the top international arbitral bodies, consistently receiving in each of the past 15 years some of the highest numbers of new international case referrals. Other than CIETAC, China has nearly 200 domestic arbitral commissions, some of which handle huge caseloads. In 2009, to name just three examples:Wuhan Arbitration Commission received over 9,000 new arbitrations, most of them domestic; Guangzhou Arbitration Commission, 4,300 new domestic cases; and Beijing Arbitration Commission, 1,830 new cases, of which 72 were international.

If nothing else, these figures demonstrate that many parties in China-based disputes elect arbitration, a private dispute resolution method outside the courts. The number of civil cases in Chinese courts has also increased over the past decade, but the strong reliance on arbitration is undeniable.

Arbitrations Asia ex-China

There are many other significant venues for arbitration in Asia, including Hong Kong, Singapore, Malaysia, Korea, Japan, India, of course Australia and others. In addition, arbitral organizations from Europe and America have set up offices in this region. The International Chamber of Commerce’s International Court of Arbitration established its first international office in Hong Kong in 2009, the London Court of International Arbitration set up LCIA India in April 2009, and ICDR set up its office in Singapore in 2006, one of its few overseas presences.

What languages are being used in all these venues, and are there any conclusions we can draw or trends we can identify?

When it comes down to actually choosing the language to be used in conducting the arbitration, what are the choices? We have scores of languages out here in Asia, but how much of an issue is that in light of globalisation and the fact that English is by and large the lingua franca of international business?

Definition – the language of arbitration

Well, first of all, what do the rules say? Many arbitral rules in use within Asia do not expressly define what it means to have a designated language of the arbitration. UNCITRAL Model Law Article 22(1) – adopted by many Asian jurisdictions outside China – refers to the “language or languages to be used in arbitral proceedings”. The relevant elaborations in the UNCITRAL Model Law and Arbitration Rules are not identical, but both reflect that the determination of arbitral language shall apply both to the parties’ written statements and to communications at hearing. Whether this should also apply to communications, decisions and any award by the Tribunal is relatively less uniform as between the black and white letters of the UNCITRAL Model Law and Arbitration Rules, respectively.

How is the language of an arbitration decided? what are the rules and the practices?

The procedural rules on deciding the arbitral language boil down to a few basic approaches. The actual practice under those rules is also important to note. I am indebted to eminent arbitrator and expert Serge Lazareff who presented a marvelous analysis of this subject in 1997.

First and foremost, the decision on language is generally a matter of party autonomy. The freedom that parties may enjoy by making key choices on procedure, including the freedom to choose the language of the procedure, is an important reason to select arbitration rather than litigation in local courts. Parties generally have latitude to decide not only which language, but indeed how many languages will be used in the arbitral procedure. Where parties do not decide (or fail to agree upon) the procedural language, the decision on language generally falls under the Tribunal’s discretion.

Perhaps the broadest example of the Tribunal’s discretion on language can be found in the UNCITRAL Arbitration Rules and the Rules of the Stockholm Chamber of Commerce, where the criteria for choice of language are not stipulated other than the somewhat general criteria of “relevant circumstances”.

Under a second approach, the language of the parties’ contract serves as the basis for determining the procedural language of the arbitration, either as a presumption or a priority. Here are three examples of rules which embrace this approach.

The 1998 ICC Arbitration Rules Art. 16 gives the contract language priority by providing that (absent contrary indication) the Arbitral Tribunal “… shall determine the language or languages of the arbitration, due regard being given to all circumstances, including the language of the contract .”

The 1997 AAA ICDR Rules impose a presumption in favor of the contract language at Art. 14, which provides that (absent party agreement) the language of the arbitration shall be that of the “…documents containing the arbitration agreement, subject to the power of the Tribunal to decide otherwise based on the contentions of the party and the circumstances of the arbitration.”.

The LCIA Rules address language choices at various stages. The 1985 LCIA Rules state that the “initial” language of the arbitration shall be that of the contract containing the arbitration agreement. Where the contract is in more than one language, the LCIA Court may decide which language applies. Once the Tribunal is constituted, it shall decide on the language(s) of the arbitration, unless the parties have already reached agreement on this.

A third approach under institutional rules might be called the “territorial approach”. This applies to jurisdictions and institutional rules where the Tribunal is not given the discretion to decide the arbitral language, and where, instead, the territorial language of the arbitration seat and/or the language of the arbitral institution (if one is officially recognized) may prevail.

For example, the Arbitration Rules of CIETAC provide “The Chinese language is the official language of the Arbitration Commission. If the parties have agreed otherwise, their agreement shall prevail.” In short, party autonomy enjoys priority in a CIETAC arbitration. But where that is not exercised or where the parties fail to agree, the default language is Chinese.

What does that mean in practice? The CIETAC Secretariat in Beijing has kindly shared some statistics on the use of Chinese versus other languages in its arbitral procedures.

Arbitral language in China (English and Chinese)

CIETAC reports that its general experience is that approximately 80% of its international arbitrations are conducted in Chinese, with the arbitral award also issued in Chinese. The 20% or so of CIETAC arbitrations where the parties agreed upon an alternative arbitral language were conducted in English or bilingually, in Chinese and English.

While parties of non-English speaking nationalities frequently participate in CIETAC arbitrations, including German, Korean, Japanese and others, it is somewhat rare for foreign languages other than English to be adopted as the language of a CIETAC arbitration. As is the case in Europe-based arbitration under the ICC, the adoption of English is frequent not because all parties hail from English speaking countries, but rather, to find common ground, seeking to bridge communication gaps that otherwise might arise. Among other factors, the linguistic ability of the arbitrators and lawyers will be a practical consideration, in addition to the contract language.

Where it is called upon to help with bridging communications at hearing, the CIETAC Secretariat tends to be flexible, supportive and pragmatic in supplying translation support. Fortunately, Secretariat members hold good bilingual skills at least for English. Where other forms of translation support are needed, flexibility is exercised where possible. In one case, a Japanese party was permitted to speak Japanese during the hearing even though Japanese was not the arbitral language. That party may have provided a Japanese-Chinese interpreter.

Among the nearly 200 domestic arbitral commissions established in China since the promulgation of the national arbitration legislation in 1995 the overwhelming presumption is that Chinese will be the procedural language. There are practical reasons for this. Apart from regulatory and institutional preference, the Chinese courts require that an arbitral award be submitted in Chinese language to support an action to enforce or set aside.

In the case of the ICC, the figures shared by Mr. Lazareff in his study relating to the period from 1988 to 1995 indicate that a relatively greater number of English language contracts were referred to the ICC for arbitration as compared with the percentage of awards that were issued in English. Therefore, it might be surmised that, in practice, Tribunals sometimes considered factors other than solely the contract language when deciding the language of the arbitral procedure or, at least, when deciding the language of the award.

Let's assess the approach to language in arbitrations involving Chinese parties outside their home jurisdiction

Chinese parties have not limited their arbitrations to local venues, nor is Chinese necessarily the arbitral language whenever Chinese parties arbitrate overseas. Over the past four years, at the Hong Kong International Arbitration Centre (the “HKIAC”), approximately one-third of all arbitrations have involved at least one party from the Chinese Mainland. In some Hong Kong arbitrations, both sides (claimant and respondent) were Chinese Mainland parties. Recent administered cases reflect that, of such cases, approximately 25% involved contracts that were written in either Chinese or bilingually, in both English and Chinese. In a relatively small percentage of cases, the parties mutually agreed to adopt Chinese as the only arbitral language.

Singapore is another venue where the participation of Chinese Mainland parties is notable – 8% of total new cases referred to Singapore International Arbitration Centre in 2009. How was the language issue addressed in those cases? In the past year, such cases have involved contracts written in the following languages: both Chinese and Japanese (where the award was made in Chinese), only in Chinese (where the award was made in Chinese), and bilingually, both Chinese and English (where the procedure was conducted bilingually until the parties agreed to adjust the arbitral language with the view that it would be more efficient to adopt only Chinese in the procedure). In other cases, the disputed contract was made in English, the arbitral procedure was conducted in English, but the award was made in both English and Chinese. The parties’ request for a Chinese language award is normally to facilitate enforcement procedures in China.

Further information on the participation of Chinese parties in overseas arbitrations

Recent statistics from the Korean Commercial Arbitration Board (KCAB) reflect that, of international cases received in Seoul, Korea in 2008 and 2009, more involved Chinese parties than any other foreign nationality, followed by U.S. and German parties. Previously, the largest number of foreign arbitration parties in KCAB arbitrations was from the USA. The languages most widely used in KCAB arbitrations are Korean and English.

In a similar vein, the ICDR, which reports that 183 of its cases last year involved Asian parties, observes that it is increasingly seeing cases which involve Chinese parties, but decreasingly with U.S. parties.

Language choice in ex-China arbitral jurisdictions

This brings me to the important subject of India, an area where I do not have personal experience in arbitration, but fortunately local practitioners have shared relevant information. India is a venue where local institutions, such as the Indian Council of Arbitration, are active, in addition to international arbitral organizations such as the LCIA and ICC.

I am advised by Indian practitioners that the Constitution of India gives special status to the English language. It provides that the language of the Supreme Court and of the High Courts shall be English, unless Parliament by law provides otherwise. Hindi has been notified for use (along with English) in the High Courts of various locations within India but the judgment / orders are to be in English. Local language is sometimes used in other courts. International trade documents in India tend to be written in English, even where the first language of no party is English.

In terms of international arbitration institutions, ICC arbitrations with parties from India have been numerous over the past few years. This reflects that parties from India are active in arbitrations which take place outside their home jurisdiction as well as in India. At the SIAC, in 2009, 15% of new cases involved parties from India.

In Japan, practitioners find that English is generally used for international business contracts. It has become common for Japanese law firms to have Chinese lawyers, perhaps a step for dealings in Chinese language.

Finally, worldwide, ICC statistics show that English is the predominant language of international arbitration even though it may not be the first language of the parties. In 2007, 80% of ICC arbitrations worldwide were conducted in English, 5.4% in French; In 2008, 73% in English and 6.7% in French. In those years there also were ICC arbitrations conducted in Japanese only and Mandarin only, as well as bilingual procedures in both English/Chinese and English/Japanese.

Interestingly, although Japanese and Mandarin are the only Asian languages for arbitration that were reflected in ICC figures for 2008 and 2009, both years saw arbitrations involving at least 20 different Asian nationalities (among them, the highest numbers were parties from India, China, the Republic of Korea, Singapore and Japan). Moreover, ICC arbitrations took place in over 10 different Asian jurisdictions (Singapore being the most frequent Asian location, as well as Japan, India, Republic of Korea, Malaysia and Hong Kong).

Considerations in translating legal terms and concepts

I would like to comment briefly on translation. Problems in translation inevitably emerge in any discussion on the language of international arbitration. Sometimes these are purely problems of linguistics, but in other cases, the problem is more complex and relates to culture. This goes to the heart of why we care about language choice and what is at stake when parties, their lawyers and the arbitrators must bridge a language gap, or where they are not proficient in the arbitral language.

The problems surrounding translation and learning a new language may give rise to painful embarrassment and in some cases, serious misunderstanding. I will share one such occasion that was as delicious as it was embarrassing. A good friend of mine wanted to exhibit her Chinese language skills when hosting five others for a dinner highlighting Beijing’s most famous culinary experience, Peking duck, where the chef will proudly display a golden roasted duck, then diners enjoy appetizers, duck soup and duck slices with crepes. In Chinese, she ordered a Peking duck dinner for six. The chef queried her closely, “Are you sure?” She was insistent. “Six people, Peking duck!” The chef shrugged his shoulders and went off. Half an hour later, he came back out of the kitchen rolling a massive trolley with six finely roasted ducks!

In legal translation, we too need to get all our ducks in a row. We seek a high degree of precision, taking into consideration the culture and history underlying language as much as phonetics, grammar and syntax.

In my home jurisdiction, the Hong Kong Special Administrative Region of the Peoples' Republic of China, the policy of a bilingual legal system was initiated in 1987. Before that, the legislation was drafted and promulgated in English language only. Now, all new legislation in Hong Kong is drafted and enacted in both Chinese and English. Over 22,000 pages of existing legislation went under translation into Chinese once the policy went into effect.

One of the burning issues is how to translate into Chinese those English legal expressions which find their roots in the English legal system and are based on its socio-cultural context. Where philosophical, moral, ethical, linguistic and cultural values have interacted in the evolution of the English law, how is this accurately and fully reflected in a Chinese language version?

In the case of China, which has a civil law system that uses Chinese legal terms which were first translated from German and later from Japanese, legal translation can be complex work when it relates to English in a common law system. The solution to translation brain twisters such as this may sometimes be the creation of new Chinese expressions.

Taking translation in the other direction, expressions frequently used in common law cross examination such as, “I put it to you that …” are easily misunderstood by witnesses and counsel who come from civil law China. Normally, special explanation is needed to avoid confusion.

Where existing Chinese legal terms are used to translate existing English legal terms, this also introduces questions of precision and meaning. For example, nearly the same Chinese terms are used to translate the English terms, “immovable property” 不动产 and “movable property” 动产 under the Hong Kong Ordinances. However, the Chinese word for simply “property” in English is quite different – 财产, as is the direct Chinese translation for simply “land” in English – 土地。

A further challenge to the translator is the distinct syntax and grammatical approach of English and Chinese. Relatively speaking, Chinese language has a more simple sentence structure, which can be an issue where complex English sentences must be translated. One of Hong Kong’s most experienced bilingual Law Draftsmen identified a prime example of how puzzling this problem can be. Section 31 of the Evidence Ordinance of the Laws of Hong Kong is comprised of 354 words, 32 commas and only one full-stop. If translated directly, following the same syntax, the Chinese version would be unintelligible.

In a hearing scenario, further issues may arise. Where Tribunal members are not fluent in the language spoken by counsel, witnesses or experts, do they listen and speak principally to the interpreter who is in a position to communicate directly in their own language, rather than to the parties? An able legal interpreter can help to keep the roles clear, but Tribunal members must also keep in mind that the translator is a conduit, not a principal. I’ve heard counsel wonder out loud about what is lost if the Tribunal misses the body language, eye contact, human emotions, intonation, accent and emphasis when they listen to the interpreter rather than the original speaker.

The problems of translation may be relatively more difficult to overcome when matching languages as different from each other as English and Chinese, particularly where the legal culture of the home jurisdiction is different. The same may apply to other Asian languages such as, for example, Japanese, Korean and others. Cultural-linguistic challenges must be overcome in any procedure where more than one language is used.

Two case precedents which address the issues of language and enforcement

While some may regard language and translation as technical issues that are unlikely to affect enforcement of an arbitral award, this issue was examined in an opinion handed down in 2001 by the High Court of Justice, Queen’s Bench Division Commercial Court in the case of Tongyuan (USA) International Trading Group (China) v. Uni-Clan Ltd.

This case involved a CIETAC award made in China and in Chinese language and an application for leave to enforce the award in the UK. The defendant argued that the language used in the Chinese-language CIETAC award was not a language “which the English courts would recognize as language requiring one party to deliver up goods to another”.

The English court disagreed. Displaying a sophisticated understanding of the challenges of legal translation, as well as a high degree of cultural tolerance , the court stated the following in its opinion: “This award, of course, was made in China, and made in the Chinese language. The document from which all those in court have worked is a certified translation. But even when a foreign award is made in the English language, it must be rare that it will use terms precisely mirroring those which an English court would use for the purposes of drafting a judgment. The question, in my judgment, is whether the award as it stands (in this case the award in translation) is sufficiently certain to be capable of enforcement as it stands.”

A further approach might be found in a more recent decision, handed down only a year ago by the United States District Court for the District of Oregon. In Qingdao Free Trade Zone Genius International Trading Co., Ltd. (a Chinese corporation) v P and S International Inc., (a USA corporation), the court examined an application to enforce an arbitral award issued in China, in Chinese language against the defendant in respect of a contract to ship a natural product which I expect is very familiar to those in Australia, eucalyptus chips, through a broker located in Shanghai. The sales contract, less than a page long, was written in English and called for the resolution of disputes by submission to the Qingdao Arbitration Commission (“QAC”), which is located in Qingdao, Shandong Province, China.

The parties made no designation of an arbitral language in their contract. The QAC Arbitration Rules (similar to the current Rules of CIETAC), provide that the official language of the Commission is Chinese, which shall be the language of the arbitration except where parties mutually agree otherwise.

The cargo under the contract was rejected on the grounds that it was underweight and had too high moisture content. The US party had a prior, ongoing dispute with the Qingdao party (which had not been submitted for arbitration), under which the U.S. party had demanded US$150,000 for the cargo. The Qingdao party claimed, in a Chinese language arbitral petition submitted to QAC, compensation in the amount of US$44,911.88 for shipping and customs charges.

Upon receiving the petition, the QAC mailed a group of documents to the US party, two of which were in English (consisting of pamphlets containing the QAC Rules and a list of arbitrators). None of the documents contained the Qingdao party’s name in English, nor the relevant sales contract. QAC then proceeded to appoint an arbitrator, who made findings and awarded the Qingdao party US$57,473.26.

In its motion for summary judgment to deny enforcement of the QAC award, the US party asserted that it was not notified of the arbitration in English language and therefore, did not receive due process, basing its argument on NY Convention Article V(1)(b) and related interpretations under U.S. case precedents. The US court found that the documents and circumstances of the case did not demonstrate that the US party received notice “reasonably calculated, under all the circumstances, to apprise them of the pendency of the arbitration and afford them an opportunity to be heard.” On this basis, the defendant’s motion for summary judgment was granted in September, 2009.

Among other things, the “language of the arbitration”, was applied strictly to early stage arbitration procedures and, as a practical matter, became an obstacle to QAC “talking the language” of the foreign party (in terms of legal culture and procedural expectations). While it could be argued that QAC had simply carried out its own arbitral rules (on language), this appears to have been approached rather mechanically, without full consideration of all relevant circumstances (in particular, the broader issues of legal culture and procedural expectations). No matter how observers may regard the Oregon court’s decision, this case introduces interesting issues for commissions which look to administer cases involving international parties.

A broader question: Do arbitral institutions in the Asia Pacific region “speak the language” of international parties in the cultural sense?

When expanding the concept of “speaking the same language”, a number of issues come to mind. Do parties to Asia-based arbitrations consider the culture, practice, procedural expectations and legal framework of international arbitration also to be “their language” in the broader sense?

Attempts to adopt internationally acceptable legal frameworks for Asian arbitration have taken place. From this standpoint, an impressive number of Asian jurisdictions are well-positioned to serve as venues for international arbitration. The widespread adoption of the UNCITRAL Model Law and UNCITRAL Arbitration Rules for international arbitration is a strong example. Of course, the UNCITRAL Model Law and Rules have an international basis, reflect international norms and are available with official translations in several languages, which is helpful.

In addition, some Asian arbitral institutions strive to create an environment that not only local, but also, international parties may find familiar and comfortable, in order to attract more cases into their centers. This healthy development increases professionalism and promotes convergence of arbitral cultures worldwide.

In the course of this year, China’s flagship international arbitration institution, CIETAC, has reached out to arbitration experts both domestically and overseas for suggestions as it reviews its own Arbitration Rules. From its website, CIETAC called for worldwide input. I recently attended a related meeting in which leadership of CIETAC explained that their goal is for CIETAC to be a “first tier” international arbitration organization. The leadership explained their understanding that one may find around the world first-, second-, and third-tier, and even arbitral organizations with no rank at all, but that their goal is to achieve the very top rank. An important question is what local and foreign parties respectively perceive to form a first tier arbitral institution. In all cases, the efforts of Asian arbitral institutions to understand what international parties seek and to strive to “speak their language”, in both a cultural and linguistic sense, is an important work in progress which deserves the serious support of the arbitration community.

At the HKIAC, where a good number of Mainland Chinese parties have opted to participate in arbitrations, the arbitral institution has developed optional administered arbitration rules in order to “speak the language” of Chinese parties who are accustomed to arbitration in the Mainland, which is conducted institutionally and not by ad hoc format.

The SIAC merits inclusion in this comment, as it too has developed administered arbitration rules. Furthermore, it is interesting to note the number of occasions where the SIAC arbitral award was issued in Chinese as well as English language, to facilitate recognition and enforcement in the Chinese courts. These are straightforward steps to providing a user-friendly environment for international parties. They have involved significant focused effort with the support of leadership in order to be realized.

I take this opportunity to also applaud the excellent efforts in New South Wales, with the establishment of the Australian International Disputes Centre and other measures to create a suitable environment for international arbitration.

Implications

What can we conclude from all this information on language choice under Asian rules and practices? I will offer a brief four-point overview.

  1. Outside of China, English is the main language of arbitration, but Chinese is increasingly being accommodated.
  2. Within China, Chinese is the main language of arbitration, but at least at CIETAC there is a desire to increasingly accommodate English. All of the Asian arbitral locations mentioned today seek to accommodate the choices and decisions of international parties (of all nationalities) and generally are able to offer the possibility of conducting an arbitration in English.
  3. In the region, arbitrations involving at least one Chinese party represent a significant and increasing portion of total arbitrations. Given China’s growth, we can expect this trend to continue.
  4. Therefore for those of us involved in Asian arbitrations--whether as Tribunal member, counsel to a party, adviser or other—it behoves even non-speakers of Chinese to prepare now for that future by looking for ways to increase our effectiveness in Chinese-language and/or bilingual arbitrations. I’ve been dealing with Chinese-language arbitrations for some 30 years now and have seen all sorts of situations. Let me share what I’ve seen experienced practitioners do to address the issue of language.

 

Eight practices that are commonly adopted for working with the rules on language

  1. In commercial negotiations try to agree on the arbitral language under the dispute resolution clause of the contract. Also, be conscious of the language(s) of the contract itself. The consequences of such language choices may have a bearing on important strategic aspects of the arbitration, such as who are the appropriate candidates for arbitrator, legal counsel, etc. As we have seen from practical examples, contract language may be influential as to the choice of arbitral language, but does not necessarily dictate the arbitral language under most rules, where there are other relevant circumstances.
  2. Failing that, consider a bilingual approach. If parties cannot agree on the arbitral language, consider whether the situation calls for a bilingual solution. Where one party might be disadvantaged by a single language decision, a bilingual approach might be the most sensible and fair solution, creating an equally convenient framework for both sides. In 2008 and 2009, the ICC recorded having numerous arbitrations where more than one language was used for procedures. This is not an uncommon approach.
  3. If the contract is silent on language, seek the Tribunal’s understanding where the Tribunal is to decide upon the procedural language. Where the parties fail to agree on the arbitral language, it may be left for the Tribunal to decide on the language. In such case, the parties may proactively explain the circumstances which support their language preference to the Tribunal (or to the institution, depending on what the relevant rules provide).
  4. Seek to determine what the “arbitral language” will mean in concrete terms throughout the arbitral procedure. Attempt to clarify the manner by which language will be applied throughout the arbitral process. For example, it is possible to distinguish the language used in communications with the arbitral institution and Tribunal, respectively, as well as the language(s) for the parties’ written submissions, the language(s) used at hearing (including with regard to witnesses and experts, etc.) and the language(s) used for the award (with consideration for the jurisdictions where it may be enforced). In many frameworks, it is unnecessary for the same language to be used uniformly at all stages of the arbitration.
  5. Continually assess the role of language in the arbitral procedure. As some of my survey results have indicated, parties sometimes apply to adjust the approach to language in the course of an arbitration, once they have had the opportunity to take account of how a particular decision plays out, including whether it is practical, efficient, economical and meets the needs of the parties, their lawyers and the arbitrators. Recall the example where the arbitration started as a bilingual procedure, but the parties later applied to the Tribunal to convert that to a one-language procedure after they had found over time that they could function effectively with a single uniform language.
  6. Seek help from the arbitration institution, if the institution has the resources to be helpful. Where the arbitration is administered by an institution, establish communications with the institution to track the approach to the procedural language at all stages of the arbitration. In particular, request support at each procedural stage where any difficulties with the arbitral language arise. In the case of an institution like CIETAC, the parties may receive help from the institution where there is a true need for linguistic support.
  7. Appoint a Tribunal member who is proficient in your language and in all languages of the arbitration. Identify in which language(s) each of the Tribunal members is proficient. Ensure that the team of lawyers and interpreters is competent to handle legal issues in the selected arbitral language(s).
  8. Consider developing a relationship with lawyers who are proficient in the arbitral language if that language is not one in which your own firm is proficient for purposes of representing clients. If this involves teaming with outside counsel (not from your own firm), educate them beforehand in your expectations and learn their expectations of you, so that you work together smoothly. This is important because such amalgamations of legal talent may involve the joining of professionals from different legal cultures.

 

Conclusion

I conclude with the observation that the choice of arbitral language is neither a technicality nor a mechanical issue that simply takes care of itself. With the economic growth of Asia and especially China, we are well beyond the point where parties who prefer to use English or prefer to resolve disputes in Western jurisdictions will necessarily have negotiating leverage. At the same time, evolving Asian arbitral culture is gradually absorbing some of the best parts of established international practice. People and institutions are working hard from both ends to develop a thriving and consummately professional approach to international arbitration in Asia, whether it is conducted in English, Chinese, or other languages.

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