Lost in Translation: Some guidance on dealing with culturally and linguistically diverse parties

Lu Zheng, a property developer, met Donglin Deng, a project manager, in 1998. Mr Zheng initially employed Mr Deng. In 2004, Mr Zheng, Mr Deng and another party incorporated Orient Homes Limited and undertook property development. Four more companies were incorporated under the Orient Group banner. The shareholding and directorships of all the companies changed over time, with Mr Zheng and Mr Deng becoming the main directors and shareholders in 2008.

Members of Mr Zheng’s family and Judy Lin, Mr Deng’s wife assisted in the business. Various other parties injected capital. On Mr Deng’s instigation, the two parted ways in May 2015.

Mr Zheng alleged his business dealings with Mr Deng were a partnership between them or a joint venture beginning in approximately 2010, and that partnership accounts were maintained and discussed monthly. Mr Deng denied the existence of a partnership. Both claimed that the other owed him money.

All the relevant documentation, including emails, WeChat messages, and internal records, were in Simplified Chinese. The Trial Judge had the difficult task of making findings of fact in reliance on these and on evidence which was largely delivered through interpreters.

The key evidence which the parties relied on illustrates the difficulties associated with interpreting documents that have been translated:

1. Internal accounts prepared by Mr Zheng’s sisters and Ms Lin (Internal Accounts). These were voluminous, and somewhat confusing. It appears that Mr Zheng provided his expert accounting witness with a machine translation rather than having them professionally translated.
2. The Bella Vista Agreement. This document had the title “合作协议”, which is capable of being translated variously as “partnership agreement” or “cooperation agreement”.
3. In June 2015, Mr Zheng distributed a document called “郑邓分家原则” (“Principles in Separation”).

In the High Court, Justice Downs discounted the Internal Accounts, preferred the evidence of Mr Deng and found there was insufficient evidence of a partnership. In the Court of Appeal’s words:

The High Court was confronted with a case in which the familiar language and trappings of partnership — for example, a written partnership agreement, partnership financial statements prepared in accordance with relevant accounting standards and conventions, and a partnership bank account — were absent. That absence, coupled with the existence of a number of corporate vehicles through which their projects were carried out, led the Judge to the conclusion that there was no partnership.

In contrast, the Court of Appeal took a different approach:

We have done the best we can to be sensitive to the importance of social and cultural context and, in particular, to be cautious about drawing inferences based on our preconceptions about “normal” or “appropriate” ways of structuring and recording business dealings. Rather, we focus on the substance of the parties’ arrangements as revealed by their conduct over time.

The Court delved into the language used by the parties to describe their relationship in contemporaneous documents and provided the original Chinese wording where the terminology was particularly important.

Analysis of the documentation led the Court to conclude that there had been an overarching business carried on by the two men in common with a view to profit. It found that the Internal Accounts in particular provided strong evidence of this relationship, revealing an intention to split profits and maintain equal investments. So did the Principles in Separation document.

The Supreme Court agreed with the Court of Appeal. It placed similar reliance on the three key documents listed above.

It also set out some guidelines for how to approach cases where the social and cultural framework is significant:

1. Judges should approach cases where one or more parties has a cultural background which differs from that of the Judge with caution. They should recognise that some of the usual rules of thumb for assessing credibility may not apply.
2. However, other methods in the Judge’s toolkit remain available, such as the availability of contemporaneous records supporting a particular narrative, and focusing on the substance of the parties’ conduct over time.
3. Witnesses may include in their evidence explanations of cultural context where it is relevant to their own conduct. This may be supported by expert witness evidence on cultural framework where necessary.

The judgments of the Appellate Courts provide some useful guidance in dealing with documents that require translation.

This case turned on the precise meaning of three sets of documents, all of which were in Chinese. The accuracy of any translation, and understanding any nuances which may have been lost, was therefore paramount. For example, the original title of the Principles in Separation document, literally translated, is “Zheng-Deng Family Separation Principles”. That title obviously connotes a partnership having existed, whereas “Principles in Separation” does not.

There was no evidence from the translators in this case about why they used certain terms instead of others, including when it came to rendering the crucial terms 公司 (company, firm, enterprise) and 合作 (cooperation, partnership). The Court of Appeal rightly sounded a note of caution about attributing any significance to the precise English terms used when the translation may have been done by a person who did not understand the legal nuances of the term.

From the above we can see that, in terms of best practice:

1. Translations should be reviewed by someone who understands the legal and factual context of the particular claim as well as the plain meaning of the words.
2. Where there is likely to be a dispute over meaning, the Court may be assisted by evidence of linguistic and cultural context alongside being provided with translations.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.