Bring in the Linguists: Common Arabic/English Legal Translation Issues

Introduction 

Any legal practitioner who has been working for some time in the Sultanate of Oman – or in the wider Arab world - will be familiar with the pitfalls that can develop when legal documents are translated from English to Arabic or vice versa.

Much of the time, mistakes in translation are harmless enough either to pass unnoticed or to give rise to nothing more serious than wry amusement. But there are instances in which the consequences of mistranslation can be more serious.

Under Omani law, all documents, correspondence and agreements submitted to the Government must be in Arabic. Omani courts and tribunals will consider and construe only documents submitted in Arabic.

When issuing a prospectus for the offering of securities in Oman, the Arabic-language version approved by the Capital Markets Authority is, by law, the official version of the prospectus. If any difference or discrepancy arises between the Arabic and the English texts, the Arabic text prevails.

In practice, many of the above documents are first prepared in English, then translated into Arabic. Conversely, when non-Arabic speaking lawyers are advising clients on local legislation, they will be relying on translations from Arabic into English.

It is easy to see how, in the above examples, even an apparently small translation error could have regrettable repercussions.

Problems specific to translating legal documents between Arabic and English 

In his 2002 article, “What is so Special about Legal Translation?” Malcolm Harvey describes the challenge of legal translation as “combining the inventiveness of literary translation with the terminological precision of technical translation.”

The challenge is compounded when translating legal English into Arabic or the other way around, not only because of the gulf between the English and Arabic languages, but because of the wide differences between English common law and the civil law system prevalent in the Arab world.

There are many technical terms in legal English that only make sense in a common law framework, and for which there are no direct equivalents in either Sharia or Arab civil law. Similarly, legal Arabic incorporates elements of both Sharia and Arabic civil law, many of whose concepts have no counterpart in English common law.

Such specialised legal terms often have fixed legal meanings and cannot be replaced by other words. In these cases, literal translation by the unwary is unlikely to offer a correct rendering of the term. 

Further, in legal English, lawyers still use Old and Middle English terms such as “hereby,” “hereof,” “hereinafter,” “thereby” and “aforesaid.” To add to the mix, legal English employs many Latin terms and expressions, some of which date back to the Middle Ages, such as “contra proferentem,” “delegatus non potest delegare,” “res ipsa loquitur,” et cetera.

Archaic English or Latin terms can often be translated perfectly accurately into modern Arabic. Sometimes such terms can safely be omitted altogether when they do not affect the meaning of the whole text. However, in cases in which no accurate equivalent is available and the term cannot be safely ignored, the translator will need to act as a cultural intermediary. He may have to interpret the wording conceptually rather than literally, then paraphrase fully the intended effect of the term or expression to avoid losing vital meaning in translation.

There are numerous English legal terms of art which are almost invariably mistranslated into Arabic, such as “indemnity,” most often translated as تعويض, the typical back-translation of which would be “compensation.” To any lawyer trained in the common law tradition, this rendering is gravely deficient.

The Arabic word رهن is used for both “mortgage” and “pledge,” while “assignment” is translated into Arabic by (inter alia) the words احالة، نقل and تنازل, used seemingly interchangeably. Unfortunately, depending on context, each of the three can convey an entirely different meaning. Unless the translator has sufficient grasp of the legal purpose of the document to be able to determine in such cases which meaning is intended, confusion is inevitable.

Conclusion 

To avoid the dangers posed by the specific problems inherent in translating legal documents between English and Arabic, practitioners need to ensure they are entrusting the business of legal translation to professionals with the necessary expertise.

Legal translators must have in-depth linguistic training and knowledge of the source language, and should ideally be native speakers of the target language. Finally, they must be steeped in the local culture and have a firm grasp of the applicable legal concepts and terminology.