Obstacles to accurate legal translation and feasible solutions to this problem

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW GRADUATION THESIS B.A DEGREE IN ENGLISH Major: Legal English (OBSTACLES TO ACCURATE LEGAL TRANSLATION AND FEASIBLE SOLUTIONS TO THIS PROBLEM) Supervisor: LUONG MINH HIEU, MA Student: PHAM THI THAO LINH Student ID: 1852202010038 Class: LE43B Ho Chi Minh City, 2022 ACKNOWLEDGEMENT Even though I am the author of my thesis, I could not have finished it without the assistance of others around me I want to thank everyone for your support, which helps the process of writing this thesis become easier The feedback, suggestions, and compliments boost my confidence and motivate me to believe in myself First and foremost, I want to send an appreciation to Mr Luong Minh Hieu, my mentor, who put the most time and effort to help me finish this thesis He was the one who patiently sat down to guide me when I felt tough and confused during this process Obviously, the process of doing a thesis would be even more difficult and strenuous without the teacher's dedicated guidance Since I have never conducted any research projects during my time at university, this project for me is a very advanced experience, but also full of difficulties and challenges The submission of this thesis marks my maturity after a four-year academic career at the University of Law and opens up new opportunities for the future Besides, I would like to thank the other lecturers of the Legal English department as well as the teachers who have taught our class All teachers and professors gave us the most fundamental knowledge in the industry Moreover, the enthusiasm of the teachers in the teaching process is the biggest motivation for me to the thesis I want to leave a research project as a very special mark in this student journey Thank Ms Pham Thi Thuy Dung – my head teacher, she always takes the time to answer our questions as soon as possible In addition, I would like to express my sincere and deep gratitude to Mr Tran Thang Long (Deputy Head of Department of Legal English), Ms Tran Ngoc Luong Tuyen, Ms Le Nguyen Thao Thy (lecturer in Deparment of Legal English), and all the lecturers and staffs in Ho Chi Minh City University of Law for all the values and knowledge I have received on her 4-year journey I also thank all Dat Bike staff, thank you Ms Nguyen Thi Phuong Mai – Human Resources Manager, Mr Pham Duc Nam Trung – Head of Finance and Operation, Ms Truong Phan Cao Hoang Phuc – Legal Executive, and the entire Human Resources team and Supply Chain team, who created a good environment for me to conduct surveys and interviews, giving me a lot of lessons and additional useful information for me to complete your thesis Additionally, from bottom of my heart, I would want to express my gratitude to my best friends Hoa, Long, Nhi, and Ngoc for always being there and giving me the support, and courage to go through all of the challenges I had to face while attending university Thanks to everyone who contributed to making my time in college more memorable and colorful Last but not least, I would like to express my gratefulness to my family for always being there for me, protecting me, and helping me succeed in my decision Family is always my reliable spiritual support when I am at my most vulnerable stage, loving me without conditions and encouraging me every step of my journey of life I sincerely appreciate my parents for providing me with a superb learning and training environment so that I can move forward with more confidence I am unable to mention everyone who has stood by me in silence over the past few months because there are so many people supporting me in my very significant turning point However, in the end, for those whose names are not mentioned above, I still want to send sincere appreciation to all people I love most, who lifted me up during my most desperate time to become a better version of myself Ho Chi Minh City, 27th June, 2022 ABBREVIATION SL: Source Language TL: Target Language CAT: Computer-Assisted Translation LIST OF FIGURES Figure 1: The complex factors affect to legal translation process 38 Figure 2: Number of each object doing my survey 46 Figure 3: The number of years students learning English 47 Figure 4: The fields which surveyors working in 47 Figure 5: The obstacles which people meet most when translating Legal English 48 Figure 6: Characters of Legal Translation 51 Figure 7: Common errors in Legal Translation 52 Figure 8: The satisfaction of legal translators 52 Figure 9: Tool usually used in Legal Translation 54 Figure 10: Useful methods for Legal Translation 54 Figure 11: Legal translation process 55 Figure 12: Stages in Pre-translation process 56 Figure 13: Factors for successful target text in Legal Translation 57 Figure 14: CAT tools 68 Figure 15: Legal Translation process 70 LIST OF TABLES Table 1: Challenges which translators have to cope with : 50 TABLE OF CONTENTS ACKNOWLEDGEMENT ABBREVIATION LIST OF FIGURES LIST OF TABLES CHAPTER 1: INTRODUCTION 1.1 Background to the Study 1.2 Rationale 12 1.3 Aims of the Study and Research Questions 14 1.4 The Scope of the Study 15 1.5 The Significant of the Study 16 1.6 Study Methodology 17 1.6.1 Study Design 17 1.6.2 Data Analysis 18 1.6.3 Subject of the Study 18 1.7 Outline of the Study 19 CHAPTER 2: LITERATURE REVIEW 21 2.1 Translation in General 21 2.1.1 Definition of General Translation 21 2.1.2 Translation Method 22 2.1.2.1 Word-to-word Translation 23 2.1.2.2 Literal Translation 23 2.1.2.3 Faithful Translation 23 2.1.2.4 Semantic Translation 23 2.1.2.5 Adaptation 24 2.1.2.6 Free Translation 24 2.1.2.7 Idiomatic Translation 24 2.1.2.8 Communicative Translation 24 2.2 Legal Translation 24 2.2.1 Definition of Legal Translation 25 2.2.2 When is a Document a Legal Document? 27 2.2.3 Characteristics of Legal Translation 29 2.2.3.1 The Nature of Legal Discourse 29 2.2.3.2 A System-bound Discipline 31 2.2.3.3 Fidelity 32 2.2.3.4 Ambiguity and interpretation 34 2.3 Complexities of the Legal Translator 35 2.3.1 Language 35 2.3.2 Legal System 36 2.3.3 Genre 36 2.3.4 Purpose 37 2.4 Strategies of Legal Translation 38 CHAPTER 3: METHODOLOGY 43 3.1 Research Design 43 3.1.1 Definition of Quantitative and Qualitative Research 43 3.1.2 The Design of the Research 43 3.2 The Procedure of Data Collection 44 3.3 Data Analysis 46 3.3.1 The Subjects of the Survey 46 3.3.2 The Obstacles and Challenges which Translators Meet Most 47 3.3.3 The Characters of Legal Translation 51 3.3.4 Common Errors in Legal Translation 52 3.3.5 Useful Methods for Legal Translators 53 3.3.6 Legal Translation Process 55 3.3.7 Factors for Successful Target Text in Legal Translation 57 CHAPTER 4: DISCUSSION 58 4.1 The Obstacles that Prevent Translators from Producing Accurate Target Documents 58 4.1.1 The Influence of Linguistic Aspect on Legal Translation 59 4.1.1.1 Latinisms 59 4.1.1.2 Legalese 60 4.1.2 The Influence of Legal Aspect on Legal Translation 62 4.2 The Possible Solutions to Overcome above Mentioned Obstacles 63 4.2.1 Improve Knowledge and Experience 64 4.2.2 Applying the Legal Translation Process 65 4.2.3 The Aid of Technology in Legal Translation 66 4.3 The Legal Translation Process 68 CHAPTER 5: CONCLUSION 71 5.1 Conclusion 71 5.2 Limitations of the Study 72 5.3 Further Study 73 REFERENCES 74 APPENDIX 76 CHAPTER 1: INTRODUCTION 1.1 Background to the Study In the integration process of globalization and the Fourth Industrial Revolution, international trade and the massive exchange of products occurs on a regular basis between countries, which leads to the development of cooperation between Vietnam and the rest of the globe Furthermore, thanks to the advent of science and the support of modern technology, international crimes are evolving and becoming more sophisticated, especially cybercrime According to Cyber Security Ventures, the damage that cybercrime cause in 2021 is $6 trillion, which is much more severe than the damage caused by natural disasters That is the reason why more and more legal documents are promulgated and translated into many languages to become the common legal basis for international cases Szmigiera (2022) studies and reports in her statistic that approximately one-third of the world's population, or 1.5 billion people, speak English However, the vast majority are not natural English speakers English, in addition, to be widely spoken, is by far the most widely learned foreign language on the planet, with French a distant second Moreover, in terms of international economic integration and globalization, English become one of the most important means to communicate and absorb the elite knowledge all over the world English is not only a vital tool to help people approach the most hightech devices and learn from developed countries but also the advantageous one to spur the quality of material and spiritual life Because of its widespread use, English is always chosen as the common language for most sorts of international contracts and legal agreements, in order to eliminate any disadvantage of misunderstanding to cause damage to people or property Language is the primary means of communication in all fields and social aspects As a result, the legal translation method is significantly different from the literary technologies is more and more increasing, and this leads to the natural consequence of the appearance of some modern computer-assisted tools using Artificial intelligence (AI) to solve almost problems occurring in the working process Especially in the situation of translators, Google Translator is the greatest ally to facilitate the work of translators despite the plentiful mistakes it causes This tool hastened the process of translation in a few seconds by the method of arranging and choosing the appropriate language in particular fields, translator now just has a duty to post-edit rather than the whole work, it saves their time and also their effort The literal meaning of the source document is still conveyed correctly, many sentences can be accepted unchanged or just need a minor adjustment, which is an absolute advantage Nevertheless, a legal document is more complicated than we think they are because it is contributed by the legal professionals in an appropriate form according to a particular legal system In fact, the target legal text must be looked beyond the linguistic means, meaning is seen not only in language, but also in social values, beliefs, social relationships, and larger exchange and support systems, including family structure and the social organization of the community, this process is more complex and time-consuming For the purpose of reducing the amount of work for lawyers and translators, they acquire to have more modern technologies which can satisfy their demands As a result to the existence of some scholars have highlighted the possibility of putting corpora in a digital form, enabling linguists to work with a variety of documents, investigate specific elements of terminology, collect information about real-world usage of terms and their evolution, or undertake contrastive analysis of data from a variety of languages, allowing for a better understanding and appropriate use of words and expressions in a variety of cultural contexts According to the survey of ProZ, SDL Trados, Wordfast, and memoQ are the CAT Tools which are received the most trustworthy by translators 67 Figure 14: CAT tools 4.3 The Legal Translation Process Two major legal systems in the world are Common Law and Civil Law systems The function and style of legal documents in each jurisdiction are totally different People working in legal fields are required to have knowledge not only in law but also in other fields such as Culture, Politics, and Economics, they have to be conscious of the culture involved in the translation process and the textual conventions of both systems There are so many legal documents existing because of the increase of uncountable legal situations, therefore, the translator must identify the legal genre and apply the correct framework for each situation to produce the most exact translation Moreover, they must be equipped with lots of other skills like computer skills, legal drafting skills, attention to detail skills, researching skills, support for their job Almost legal firms pay great attention to drafting and checking a detailed legal document to make sure there is no fault in their transaction The duty of legal translators is not just working with words only, but also with a judicial process Legal papers have to be handled by specialized professional translators because they need to comply with local norms and regulations Poorly translated documents not bringing the same legal effect as a source document can be the factors of serious risks to 68 business negotiations which lead to damage to the reputation of that law firm or reduce the strength of a court case The translation process is always intricated, therefore this process has to be divided into the different levels: Stage 1: Pre-translation - Source text analysis It means before starting the translation process, first of all, the translator has to define precisely the general overview of the text covering the general aspects relating to the features of the structure and also the cultural element of the text - Access to documentary sources and documentary research, the translator needs to conduct much research to find out the suitable documentary sources which accomplish the translation process This phase overlaps with the other stages and continues during the whole process Stage 2: Transfer and target text production - At the stage of solving the translating problem, the translator focuses on the problems both at macro and micro levels To deal with the problem that happened between the asymmetry of two different law systems and the cultural discrepancies, the translator uses Comparative law as a useful tool to solve those problems - Translation in proper sense or at least the target text having the same legal effect Stage 3: Proofreading and revision of the target text The translator also does the work as post-editing, which means they must assure the correct format of particular legal documents based on their legal system 69 Pre-translation Transfer and target production Proofreading and revision of the target text Define the general overview Use comparative law Check grammar and spelling errors Documentary research Translate in proper sense Ensure the macrotextual coherence Understand the author's intention Figure 15: legal translation process 70 CHAPTER 5: CONCLUSION 5.1 Conclusion Even in today's world, the law remains one of the most specifically cultural branches of humanities, which is a complicated field reflecting culture, history, politics, and also the society of one country However, the internationalization of modern societies requires translators and interpreters, as the primary mediators of communication between different language communities, to determine which concepts expressed in the source text are universal and which are tied exclusively to a specific legal system or branch thereof For this reason, legal specialists always struggle with the problem of translating international papers but still guarantee to maintain the same legal effect The way a legal text is interpreted is heavily influenced by the legal system from which it is derived A legal translator must look beyond the text's language to foresee the effectiveness of that document to readership The translator himself or herself, as a professional who acts on the texts and tries to produce an adequate translation suitable for further interpretation by jurists, is the point at which all of these individual different aspects come together The legal translation’s work is based on investigating information through comparative law to find the concrete application which translators can make use of in their translation concerning words and the style of the genre Moreover, the duty of legal translators is to achieve precision in their writing; thus, they have to reach out to various cultures, and history in different legal families and combine various aspects in one’s activity Since the nature of legal papers differs greatly, translators require a standard procedure that can be used in any circumstance The target text's quality cannot be guaranteed by translation work based on sensibility; it will take a lot of time and effort As a result, the focus of this study is on identifying a procedure that can be used as a general standard for all legal English translation processes and that any translators can 71 readily apply to the majority of legal documents without becoming anxious when beginning to translate any text anymore Since the translators' efforts are constantly hampered by difficulties and hurdles, this study also aims to identify the barriers that legal translators consistently encounter during the translation process A perfect translation process is the author's suggestion for synchronizing the translation process, allowing translators to work more strategically while conserving time and effort 5.2 Limitations of the Study Despite the fact that this study put a lot of time and effort into its research, its limitations still need to be addressed The first constraint stems from the subject; there were not as many participants joining in the survey as I had expected, which could have led to an incorrect conclusion in some cases In addition, the survey takers who complete my questionnaires are in no way competent It is challenging to contact survey takers who are experts in both legal and linguistic domains and persuade them to complete my survey Legal translation is undoubtedly a large topic that is affected by a variety of elements, including cultural, educational, social, legal, and others As a result, each translator working in a different country may encounter unique challenges and roadblocks during the translation process This study solely addresses the typical obstacles blocking legal translation Additionally, a more plan precise and thorough and methodology are required to increase the success of the target text However, this study only goes as far as generalizing the necessary solutions Because Legal English in Vietnam is quite new, the only Ho Chi Minh University of Law and Hanoi Law University provide specialist programs in this area Due to the need for textbooks and reference materials from overseas and the scarcity of professors with the necessary expertise, it might be challenging for students to study Legal and Special English, in particular for students who conduct study in this area 72 5.3 Further Study Although there are so many studies of legal language, and also the translation of legal text published before, almost researchers just emphasize only the external subject matter, such as various legal concepts, stylistic features, macro-structure analysis, and lexicography problems, and so on This study calls for strategies and supporting resources to address internal subject matter concerns in addition to mentioning the intricate components of legal English There are still numerous issues, nevertheless, that need extensive and prolonged study in order to be resolved, for instance, an overview of Latin and Legalease terms used in the legal area Another further study that researchers can dig up latter is "Evaluate the standards and teaching methods of Legal English education in Vietnam" through the method of compiling statistics and conducting surveys on schools and courses Moreover, the major concerning aspects for a newly-graduated student in the Legal English field are job opportunities and outside considerations The further topic can be new research for students to have more faith in the Legal English training program and to come up with acceptable solutions to fulfill market demands and address the issue of human resources 73 REFERENCES Asadzadeh, M (2019) Language barrier, legal translation and the judicial system: an elaboration on the concepts and principles Forensic Research & Criminology International Journal, 301-305 Biel, L (2008) Legal Terminology in Translation Practice: Dictionaries, Googling or Discussion Forums? SKASE Journal of Translation and Interpretation Bistra, A (1993) A cognitive approach to translation equivalence Translation as Social Action Russian and Bulgarian Perspectives., 101-109 Burak, A (2002) Translation Culture Translating Culture: Translation and crosscultural communication Stage 1: Words Level Catford, J (1965) A linguistic Theory of Translation London: Oxford University Press Creswell, J (1994) Research Design: Qualitative and Quantitative CA: Sage David, Brierley, R A., & John (1985) Major Legal Systems in the World Today London: Stevens De Groot, Gerard René and Conrad J P Van Laer (2008) The Quality of Legal Dictionaries: an assessment Maastrich: University of Maastrich Duranti (1997) Linguistic Antropology Cambridge: Cambridge University Press Gall, J G Gall, M D., & Borg, W R (1999) Applying educational research: A practical guide New York: Longman Gay, L.R & Airasian, P (2000) Educational Reasearch: Competencies for analysis and application (6th ed.) NJ: Prentice Hall Giampieri, P (2019) The Bolc for Legal Translations: A Trial Lesson Comparative Legilinguistics vol 39/2019, 21-46 Hargitt, S (2013) What Could Be Gained in Translation: Legal Language and Lawyer-Linguists in a Globalized World Indian Journal of Global Legal Studies, 425447 Harvey, M (2002) What's so Special about Legal Translation, Meta, 177-185 doi: https://doi.org/10.7202/008007ar Lawrence, L (1999) Code and Other Laws of Cyberspace Basic Books 74 Lestari, N (2017) Translation Techniques of Business Terms in Agreement Jakarta: State Islamic University of Syarif Hidayatullah Newmark, P (1988) A Text Book of Translation Prentice Hall Nguyen, T (2015) The Experiences of Legal Translators and Translation Training Courses in Ho Chi Minh City Ho Chi Minh City: Victoria University and Ha Noi University Joint Program doi:https://www.researchgate.net/publication/343391990 Nida, E and Taber,C (1969) The Theory and Practice of Translation Leiden: E.J.Brill Noviarti, L (2017) Translation Techniques of Business Terms in Agreement Jakarta: State Islamic University of Syarif Hidayatullah Ramos, R (2011) Developing Legal Translation Competence: An Integrative Process-Oriented Approach Comparative Legilinguistics 5/2011, 7-20 Rotman, E (1995) The Inherent Problems of Legal Translation: Theoretical Aspect Ind Int'L & Comp L.Rev, 187-196 Sarcevic, S (1997) New Approach to Legal Translation The Hague/London/Boston: Kluwer Law International Scott, J (2017) Legal Translation - A Muiltidimensional Endeavour Comparative Legilinguistics, 37-66 Smeulers, A (2014) X Perpetrators of International Crimes: Towards a Typology Supranational Criminology: towards a criminology of international crimes, 233-265 Smith, A (1995) Cuture-Clash: Anglo-American Case Law and German Civil Law in Translation American Translators Association Scholarly Monograph Series Velykodska, H (2015) The Application of Translation Strategies in Written Translation Teaching Process Visnyk National Technical University of Ukraine Kiev Polytechnical Institute 5, 54-64 Velykodska, O (2018) Legal Discourse: Text Analysis and Translation Strategies Comparative Legilinguistic vol.34/2018, 54-64 Weiflog, W E (1987) Problems of Legal Translations Zurich, Schultess: Swiss Report presented at the XIIth International Congress of Comparatiative 75 APPENDIX A: QUESTIONNAIRES Appendix for questionnaires Are you a student or a employee? a Student b Employee If you have ever studied Legal English, where did you learn it? a University b Self-study c Online training course d English center How many years have you studied English? …… What field are you working in? …… Which following obstales you meet most when translating Legal English? a Cultural factors b Legal discourse and legal terminology c Legal and Judicial system d Genre or Subgenre e Others:… The common challenges of translating legal contracts as most perceived by Vietnames translation students? 76 a The translation of legal texts from and to Vietnam and English is difficult b The structure of legal sentences is quite long and difficult when translating legal documents c Legal text layout a great difficulty when translating legal documents d Culture-specific legal terms are always challenging when translating legal documents e Punctuation and capitalization cause many difficulties when translating legal documents f Translating modal verbs, i.e shall, will, must, may, etc is one of the challenges when translating legal documents g Tenses used in legal documents create difficulty for me during translation h It is difficult for me to understand French and Latin words when translating legal documents between English and Vietnamese i I find it difficult to find suitable equivalent to terms when translating legal documents between English and Vietnamese j I find concepts in legal documents difficult when translating legal documents k The translation of binomial expressions and parallel structures is difficult in legal documents l The translation of multiple negatives is difficult in legal documents m Words and expressions such as (hereinafter, hereto, hereby, aforesaid, whooever, herein.) are difficult when translating legal documents n It is difficult to translate doublets (e.g last will and testament) when translating legal contracts between English and Vietnamese Are you generally satisfied with your translator? a Yes b No Common errors in legal English translations are: a cohesion errors 77 b spelling errors c vocabulary errors d grammar errors e word-choice errors Which of the following characters are the most important in legal translation a Legal discourse b A system-bound discipline c Fidelity d Ambiguity and interpretation 10 How you understand the sentence “the stricter the better”? a Relating to the fidelity to the source text b Use the Word by word method to ensure the "strict" for each word of the document c Ensure the strictness of both “letter” and “spirit” d Sticking to the meaning of the original text is fine, regardless of the “letter” 11 Factors for successfull legal translation - Precision and attention to detail; - Understanding of the legal system in both the source and target languages; - Knowledge of relevant legal terminology; - Confidentiality - Documents must be delivered on time a Agree b Disagree c Reason: 78 12 Which tools you choose to overcome the challenges of translating legal translation? a Legal dictionaries b Legal dafters c Google translation d Computer-Assisted Translation e (CAT) Tools f Colleagues e Parreled texts 13 Which following methods you think it is useful for Legal English translation? a Word-to-word translation b Literal translation c Free translation d Communicative translation e Replacing Legalese with Plain langugae method f Ambiguity method 14 Can the same process be applied to all different types of legal documents? a Yes b No c Reason:… 15 Where did you study Legal English? a School or university b Self-study c Online training course 79 d English center 16 Do you apply the following translation process in your translation work? - Comprehension and understanding of the original text; analysis of the source text, situation, and background information; - Translation itself; synthesis of the translation model; - Editing and result analysis of translation; verification of the model against the source and target context (semantic, grammatical, stylistic), situation, and background information, resulting in the generation of the translation a You know it but you not want to apply it b You have applied and success c You have no idea about it 17 Do you have a pretranslation step in the translation process? Pretranslation includes - Documentary research — investigation of any valuable extra-linguistic data; - Understanding the author's intention and main message; - Analysis of text organization (logical connectives, cause and effect relationships); - Look for translation equivalents; - Concentrate on the text's stylistic aspects (genre, register, stylistic devices); - Interpreting and adapting units of measurement, abbreviations, and proper names a You know it but you not want to apply it b You have applied and success c You have no idea about it APPENDIX B: INTERVIEW Have you met any legal documents in English? 80 For those documents, what problems you face when starting to translate legal documents? Where and how did you learn legal English? Difficulties and barriers in translating legal documents have you ever encountered? How to overcome those difficulties and barriers to get a better translation Do you have any personal process for the work of legal translation? 81