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中国20世纪70年代末实行了改革开放，并于2001年11月11日叩开世贸组织大门，成为WTO第143个成员，自此，全球化的进程日益加速，中国逐渐走向了与世界接轨的道路。同时，我国的涉外商务活动日益频繁，这也带来了无限的商机。而在国际经济活动中，国际商务合同所起的作用是不可或缺的，由于英汉两种语言在语法、表达方面存在较大的差异，如何准确地对其进行英汉互译就成为了成功进行商务合作和谈判的前提。本文主要从词汇、句式和语篇三个部分来探讨如何严谨无误地翻译国际商务合同，并解析其中技巧。作为国际商务沟通的基础,国际商务合同在国际经济活动中发挥着关键作用。它有一些独特的功能，包括信息通知,规定权利和义务的社会交往。合同是什么?合同是自然人之间的一个协议,法人或者其他组织以同样的地位,建立的目的,改变,或排出一种民事权利和义务的关系。国际商务合同作为一种合同,从一般意义上讲,是指涉及两国之间的商业合同。
Abstract: China carried out the opening and reform policy in the late 1970s and entered the WTO to become its 143th member. From then on, our country integrated with the world as the global market developed rapidly. In the meantime, there were more and more foreign business activities in China, which brought unlimited business opportunities to the country. The international business contract is extremely necessary in the international economy activities. Since the great differences lie between the two language of English and Chinese, how to translate the international business contract accurately becomes the premise of successful business cooperation and negotiation. This research paper studies rigorous translation of international business contract through three parts of words, sentences and passages, including the skills of this kind of translation.
Keywords: International Business Contract; Contract Translation; Translation Skill; Business Cooperation and Negotiation
Outline大纲
Chapter One Introduction ………………………………………………………….1
1.1 The definition and style of international business contract……………….1
1.2 The classification of international business contract……………………...1
1.3 The structure of international business contract…………………………...2
Chapter Two The language feature of international business contract……………...4
2.1 Accuracy…………………………………………………………………....4
2.2 Completeness……………………………………………………………….5
2.3 Expressiveness and smoothness……………………………………………6
Chapter Three Translation skills of international business contract………………….8
3.1 The translation of words……………………………………………………..8
3.2 The translation of sentences………………...................................................11
3.3 The translation of passages………………………………………………….13
Chapter Four Conclusion ……………………………………………………………13
Chapter One Introduction第一章引言
1.1 The definition and style of international business contract
As the basis of the international business communication, international business contract plays an critical role in the international economy activities. It has some unique functions which include information informing, rights and obligations stipulating in the social intercourse. What is a contract? As the Contract Law of the People’s Republic of China[1] published in 1999 says, a contract is an agreement between natural persons, legal persons or other organizations with equal standing, for the purpose of establishing, altering, or discharging a relationship of civil rights and obligations. As one kind of the contracts, international business contract, from the general sense, means the contract involving the business among two countries or above.
As the economy and trade exchanges become more frequency these days, many enterprises expand their foreign business, which provides more opportunities to cooperate with foreigners. The formulation, negotiation and signing of the internation business contracts are inevitable. They have legally binding force towards the contracting parties. Therefore, all the people involving should carry out their duties according to the contracts strictly. It means that the words in the contracts need to be perfectly accurate, which gives the international business contracts the special style. In the Five Clocks, the American linguist Martin Joos advances the five stylistic varieties in English: the Frozen Style, the Formal Style, the Consultative style, the Casual Style and the Intimate Style. The style of the contracts can be characterized as the first one which is the most formal among all the style. Since in this kind of contracts, the lawyers had to choose one way of expression over other possibilities. Most of the words or phrases are difficult for us to understand.
1.2 The classification of international business contract
There are a great variety of international business contracts involving a wide range and complicted contents. In China, there are approximately 11 types of international business contracts dividing by the trade methods. They are: sale or purchase contract, technology transfer contract, contract for joint venture or joint production, compensation trade contract, international plant engineering contract, agency agreement, processing trade contract, contract with different trade forms, foreign credit contract, BOT international investment contract and international lease contract.[2] No matter what kind of international business contract, they all ahere to the language style mentioned above. Therefore, the translation skills are the same. According to the complexity of the format, there are different kinds of written forms of international business contracts, including contract, agreement, confirmation, memorandum, order etc. In the process of signing and fulfilling a contract, the letters, e-mails, telegrams etc. among contracting parties are also the containing parts of the contract which have the same legal power as the contact itself. However, in order to carry out the contract favorably and protect the legal rights of the contracting parties, all of the business dealings should be carried out in the premise of concluding a contract, agreement or confirmation.
1.3 The structure of international business contract
After learning the basic knowledge of international business contract, we should also aware of its structure. Of course, the structure and content of the contract are not fixed and unchangeable. The contracting parties can do some addjustments and emendations according to their own dealing situations. Normally, the international business contract contains the following four parts.
The first one is the title of the contract which indicates the content and properties of the contract. For example, “Purchase Contract”, “Sales Contract”, “Contract for Coproduction ”, “Contract for Introduction of Complete Plant and Technology”, “Contract for Sino-foreign Joint Ventures” etc. We can tell from the title what the contract is about.
The second part is the preamble of the contract which contains the date and place when signing, the contracting parties, their nationalities and residence, their lawful basis and the reason of signing etc. We must use the full names of the contracting parties when they first appear in the contract. They can only be refered to as Party A or Party B, the Buyer or the Seller, the Licensor or Licensee when repeated hereinafter. For example:
This Contract is made this 18th date of Nov., 2012 in Heilongjiang, China by and between XXX(Full Name) Company under the Law of _____, having its registered address in _____, its legal adress is ______(hereinafter referred to as the “Party A”) and XXX(Full Name) Company under the Law of _____, having its registered address in ______, its legal address is ______( hereinafter referred to as the “Party B”); whereby the Party A agrees to buy and the Party B agrees to sell the following goods on the terms and conditions as below:#p#分页标题#e#
The third part of the structure of the contract is the main body which contains General Terms and Conditions and Other Conditions. Other Conditions refer to the conditions only apply to some particular contracts, such as who runs the company in a joint ventrue contract, or the explanations of some important terms if the contracting parties are from different backgrounds. There are usually some kinds of General Terms: name of commodity, quality, quantity, price, packing or packaging, insurance, shipment and delivery, industrial property right and patent, payment, inspection, training, confidential clause, guarantee, claim, breach and rescission of contract, arbitration, force majeure, applicable laws and miscellaneous clause.
The fourth part of the structure is the witness clause which contains the concluding sentences, signature and seal. If there are appendixex in the contract, the sentence of “The annex shall form an integral part of this Contract” should be written down. For example:
This Contract is made out in duplicate in Chinese and in English Language, one Chinese original copy and one English original copy for each Party, both texts being equally authentic. This contract shall come into force from the date it is signed by the authorized representatives of both parties. The annexes as listed in Article 12 shall form an integral part to this Contract.
Any amendment and/or supplement to this contract will be valid only after the authorized representatives of both parties have signed written documents, forming integral parts of the Contract.
Chapter Two The language feature of international business contract两个国际商务合同的语言特征
2.1 Accuracy
As the special style of the international business contract, the translation should be comply with the rules of faithfulness and accuracy. This kind of contract has become more and more professional towards the terms, clauses, chapters and types. Accuracy is definitely the most important rules for the translators. For example: The Seller will inform the Buyer and shall help the Buyer in taking such action as the Buyer thinks appropriate.
In the sentence above, its meaning is clear and there is no grammar mistakes whatsoever. However, if we change some of the words, it will looke like this: The Seller will notify the Buyer and shall assist the Buyer in taking such action as the Buyer deems appropriate. The meaing of the sentence is exactly the same with the original one with merely the differences of the words inform and notify, help and assist, think and deem. There is no doubt that the latter are more formal and accurate than the former.
Let’s take a look at another example: The undersigned Lisencor and Lisensee have agree to close the following trasactions according to the conditions stipulated below. What if we change “conditions” into “condition”, the singular form? Of course, this translation will be inaccurate, since there are usually several conditions when closing a contract instead of one.
To ensure the accuracy of the international business contract, we may encounter the juxtaposition when translating the contract. It is to avoid the possible misunderstanding and divergence when putting the synonyms together, which is not unusual in the international business contract, for “using the synonyms together can express the meaning more clearly and definitely”.[4]
For example, the word “terms” always refers to the conditions of payment or expenses, while “conditions” is not. However, the phrase “terms and conditions” is usually used together as a fixed mode. We should not translate them seperately. There are other examples of juxtaposition. For example: 1. This agreement is made and entered into by and between the Buyer and the Seller. 2. The amendments to or alteration of this contract become effect only after they are signed by parties hereto and approved by the original approving authorities. In the two examples above, the phrases “made and entered into” and “amendments to and alteration of” are both synonyms. The translator should not translate them word for word, which will make the translated text become overelaborate and hard to understand.
In order to be more accurate when translating the international business contract, the translator can also study E.A. Nida[3]’s principle of Dynamic Equivalence. This theory says that translation is not accomplished by merely substituting words in a word-for-word equivalence. More often than not, this will not produce the force or dynamic of meaning. The translator will therefore modify the form of words so as to achieve the same force of meaning. The jargon for “the same force of meaing” is “dynamic equivalence”.
2.2 Completeness
Besides the accuracy in the translation of international business contract, the translator should pay attention to the completeness of the text as well. We’ve mentioned above that the international business contract has legal power towards the contracting parties. Therefore, to ensure the completeness of the translation is responsible for the original contract and to protect the legal rights of the contracting parties. Otherwise, it’s a disloyalty behaviour towards the original contract. In the meantime, when translating the international business contract, the translator must not avoid and ignore the difficulties in the text for just finishing the translation. He/She should study intensively the translated text and leave no problem unsolved behind.
For example: 43) Payment: By irrevocable L/C at sight to reach the Party B 30 days before the time of shipment. When translating this sentence into Chinese, the translator should not just do it word by word. It doesn’t mean that there will be mistakes in the translation. It just not comply with the rule of competeness. Therefore, when translating the sentence into Chinese, we should add the meaning of “the Party A should…” to the translated text. This is an implicated meaning in the original text. By adding the phrase “the Party A should…”, the translation will be more complete and clear, which reflects the meticulousness of the words of the contract and the obligations among the contracting parties.
There is another example of the completeness in translating international business contract: In case part of all know-how of the above mentioned technical contents have been published by Licensor or any third party, the licensee shall no longer be responsible for keeping the opened parts secret. This sentence also disobeys the rule of completeness. How to correct it? We should change the phrase “keep the opened parts secret” into “keep the opened parts secret and confidential”, which will be more rigorous. Besides, the sentence “Licensee obtain evidence of such publication” is missed, which completes this clause, since one party must have a reason for not undertaking the obligation of keeping secret and confidential. There should be enough evidence if the other party insists.
When traslating international business contract, the translator should pay attention to the details in the contract. Because every word that seems not eye-catching will lead to great mistake that no one can imagine. For example, in the sentence “Shipment during the period beginning on March 14 and ending on November 1st to Seller’s Letter of Credi reaching Buyer before March 10.”, the translator should find out whether the “beginning on March 14 and ending on November 1st” contains the two days of March 14 and November 1st. If so, when translating, the sentence “both date inclusive” should not be left out. From the examples above, we can sum up that to insure the completeness of the translation of international business contract is an important way to avoid the misunderstandings among the contracting parties and protect their legal rights.
2.3 Expressiveness and smoothness
The last language feature of international business contract is expressiveness and smoothness, which means to express what you understand in the contract in a way of adjusting to the language requirement, no matter in English or in Chinese. The translation should not only comply with the rules of the contract language, but also be clarified and understandable. The clauses of international business contract are more complicated than other kinds of contracts. Before doing translation, the translator need to familiarize with the whole contract and figure out the restrains and logic among the clauses. The structure of the sentences is also noticable. But these should not be the restrictions of the translation. For example:
The Seller guarantees that he is the legitimate owner of the know-how and technical documentation supplied to the Buyer in accordance with the contract and that he has the right to transfer them to the Buyer. If the third party accuses the Seller of infringement, the Seller shall take up the matter with the third party and bear all legal and economic responsibilities arising therefrom.
The first obvious mistake should be noticed in the passage above is that the subject should not use “he” in the international business contract. This is the classic example of not being expressiveness and smoothness. Even though it seems a little bit wordy when it comes to the ordinary translation, while translating the international business contract, “he” must be replaced by “the Seller”. To sum up, in the international business contract, the nouns that have mentioned in the text above must not be replaced by pronouns. Also, the “he” and “them” in the sentence “he has the right to transfer them to the Buyer” should be changed into “The Seller is lawfully in a position to transfer”, which can emphasize the legitimacy of the Seller’s possess towards the technology and materials. Another sentence “if the third party accuses the Seller of infringement” does not comply with the rule of expressiveness and smoothness either. The misuse of definite article “the” gives the readers an impression that the contracting parties have already know who the third party is, while it is not like that in reality. Therefore the definite article “the” should be changed into the indefinite article “a”. Besides, the phrase “to accuse sb. of sth.” usually refers to someone who violates the criminal law, while here it means the normal civil trespass. Therefore, we should use the phrase “to bring a charge of infringment” instead. The last mistake here lies in the phrase “supplied to the Buyer”. It should be “supplied by the Seller to the Buyer”, which gives the whole sentence a clearer statement. #p#分页标题#e#
From the analyzing of one example above, we found out a number of mistakes or misuses of the words or phrases. When translating a whole international business contract, there will be more problems like this. To meet with the requirement of expressiveness and smoothness, the translator must be highly attentive towards every word in the contract.
Chapter Three Translation skills of international business contract第三章国际商务合同翻译技巧
3.1 The translation of words
The philosopher David Hume[5] said that the law and the regime of law are a pure language form. The world of law began with language. And it was concluded and published through words. Language, as a tool of expression, should obey with the rules of contract when translating. Since we already discussed about the language feature of international business contract, it’s time to study some of the translation skills. Nida thinks that language is formed by pronunciation, words, sentences and passages. Therefore, we can study the translation skills of international business contract through the last three parts. But in terms of the passages, the passage structures of English and Chinese are mostly the same, which are both highly stylization. Most of the structures are beginning from the general rules to the clauses, from macroscopic view to microcosmic view. This kind of passage structure helps the contracting parties to understand the contents. So in this part of the research paper, we will focus more on the translation skill of words and sentences.
Let’s start from words. Sapir[6] once said: the most meaningful part in a language is usually the words formed by a series of speech sounds or the part of a word making sense, or the phrases. The words used in the international business contract are maily
legal terminology and general words. They are professional, formal and accurate. The dignity and authority of the law need to be reflected by some learned words, since most of the learned words in English are from French, Latin and Greece which have definite meaning and less associative meaning. They are mainly used in the formal style passages.
The first kind of words we need to study is the situationism. They have their own meaning to express the speaker’s attitude and view, or his/her subjective idea. In the translation of international business contract, to embody the accuracy of its language, it is really important of using the situationism such as shall, will, may, should etc. correctly. In oral English, these words can be mixed and used in nearly all kinds of situation. But in contract English, their meanings are vary greatly stipulating totally different rights and obligations. The mixing and using may lead to legal dispute among the contracting parties.
When translating international business contract, we usually use “shall” to express the meaning of undertaking some kind of legal obligations and duties instead of “must” or “should”. The word “will” can also be used in this kind of situation, but will weaker force than the word “shall”. Because “shall” has a legally meaning of insisting to do something, which implies the strong will and determination of the speaker. If the obligations stipulated by the word “shall” are not fulfilled, it can be seen as violating a treaty. However, the word “will” has no legal binding towards the other party of the international business contract. It is just some kind of suggestion or declaration towards the contracting parties. And the word “should” is usually used to express the hypothesis with strong tone but small possibility. The word “may” has the same meaning of that in general style on writing. But it can not be replaced by the word “can” which is used in the informal style of writing. For example:
The parties hereto shall, first of all, settle any dispute arising from or in connection with the contract by friendly negotiations. Should such negotiations fail, such dispute may be referred to the People's Court having jurisdiction on such dispute for settlement in the absence of any arbitration clause in the disputed contract or in default of agreement reached after such dispute occurs.
The words “shall” and “may” are the example of using them correctly in the passage above. When there is any dispute, the contracting parties must negotiate first, which is compulsory. If the negotiation fails, as the rights of the contracting parties, they may choose what to do next, which is alternative. The usage of the word “shall” is the same in the following sentences: 1 The quality and prices of the commodities to be exchanged between the ex-importers in the two countries shall be acceptable to both sides. 2 The formation of this contract, its validity, interpretation, execution and settlement of the disputes shall be governed by related laws of the People’s Republic of China.
Another translation skill of words is to use the some word repeatedly. When translating literature work, we tend to use different words to express the same definition and objects, in case of lacking of diversity of words in the translation. However, when translating international business contract, or any other contracts, the diversity of words is off the table. Using the same words repeatedly unifies the legal definition in the whole contract to avoid misunderstanding. As long as the words are correct, feel free to repeat them during translating. For example:
Should rather party hereto fail to pay on schedule the contribution referred to in Article 20, it will be deemed as having breached the Contract. Should the Company suffer damage due to the failure to make contribution, the breaching party will make compensation. Should the Company suffer serious damage due to the failure to make or the deferment in contribution, it will be deemed as materially breaching Contract. The other party shall have the right to terminate the Contract and to claim damage on the breaching party.
In the example above, the words “contribution” and “damage” are repeated 3 times, “breach” 4 times, which guarantees the consistency and unify of the translation.
Many experienced translator may be confused about the translation of the archaism in the international business contract. In this kind of translation, using the archaism properly is also important. There are some rules of the meaning of these kind of words. The word “here” has the equal meaning with “this”. For example, “hereby” means “by means of this”, “hereinafter” means “later in this contract”, “herein” means “in this”, “hereof” means “of this”. The word “there” has the equal meaning with “that”. For example, “therein” means “in that”, “thereafter” means “afterwards”, “ thereto” means “ to that”, “thereof” means “of that”. The word “where” has the equal meaning with “which”. It combines with the prepositions and uses as relative adverb to lead the attributive clause. For example, “whereby” means “by what”, “whereof” means “of which” etc.
Experiences of many translators over the years have prove that when translating international business contract, it’s the significant details such as money, time and quantity which will cause mistakes instead of the declarative clauses. Therefore, when translating international business contract, we usually use some particular structures to restrict the range of the details. For example, “and/or” and “by/between” can be used to restrict the obligations mentioned in the contract, just as the following two sentences: 1. The shipper shall be liable for all damage caused by such goods to the ship and/or cargo board. 2. The Contract is made by and between the Buyers and the Sellers; whereby the Buyers agree to buy and Sellers agree to sell the under-mentioned goods subject to the terms and conditions as stipulated below. When we need to set a range in time, double prepositions can be used in this kind of situation. For example: The Buyer shall be unauthorized to accept ant order or to collect any account on and after September 20. The double preposition here means the starting and ending date including the very date of September 20. The phrase “not/no later than” can also be used to restrict time. For example: The Buyer shall ship the goods within one month of the date of signing this Contract, i.e. not later than December 15.
3.2 The translation of sentences
Besides words, there are many long sentences as well in the international business contract, which can be divided into three categories: simple sentences, compound sentences and parallel sentences. The wording, word order and structure of the sentences between English and Chinese are all different. In the general sense, the sentences in English are mostly long and have few verbs. The word order are free to seek balance in the sentences, while that in Chinese are short and have many verbs. The word order are generally fixed. When translating the simple long sentences in English, we need to understand the logical relationships among the component parts and then cut them into different parts appropriately to find out the main component of the sentences which is the key of the translation. Then reorganize the different parts according to the language habbits of Chinese, vis-à-vis. For example:#p#分页标题#e#
Within 30 days after the signing and coming into effect of this contract， the Buyer shall proceed to pay the price for the goods to the Seller by opening an irrevocable L/C for the full amount of USD30,000 in favor of the Seller through a bank at export port.
The main component of the sentence above is “the Buyer shall proceed to pay the price to the Seller” but including an adverbial clause of time “within 30 days after the signing and coming into effect of this contract”. In the international business contract, there are many adverbial clauses of time indicating that one of the contracting party should undertake some kind of obligations or rights in a certain time. So the key of the whole sentence is the time instead of the verb. When traslating the sentence into Chinese, the adverbial clause of time should be put by the word indicating obligations.
In the international business contract, there are always compound sentences with many clauses. Although the sentence is long and has complicated gramar relationship, the sequence of the sentence is clear and has rigorous logic. When translating this kind of sentence, we should figure out the structure and draw a clear distinction between the primary and the secondary. For example:
Party A shall pay Party B US 350，000 within 20 days after the Bank of China has received the following documents from Party B and found them in order，but not earlier than 12(twelve) months after the date the Contract Plant for the first time reached 95% of guaranteed capacity of the whole Contract Plant according to the guaranteed quality indices as per Annex VI to the Contract or 65 months after the date of signing the contract, whichever is earlier.
In the sentence above, there is a very complicated abverbial clause of time to define the time of Party A carrying out the obligation of paying. The content after the word “but” is actually the supplement towards “within 20 days after the Bank of China has received the following documents from Party B found them in order” with a turning point in relations in the meantime. If we translate the the lengthy clause into Chinese by rote, the translation will be bedraggled and hard to understand. So we can turn the longer part into the parallel sentences and change the subject.
We’ve mentioned that there are three kinds of long sentences in the international business contract. The last one is parallel sentences. Since no one possible situation can be left out in the contract, there are many parallel parts in the international business contract. These parts contains words, phrases and clauses. Differ from how we handle the simple long sentences and compound sentences, we can translate this kind of sentences seperately, since the meanings of the clauses are relatively loose.
3.3 The translation of passages
As we’ve mentioned at the beginning of Chapter three, the passages of international business contract between English and Chinese are relatively the same. Although the translation should be comply with the rules of contract language, it need not to abide by the form of language exactly as the original text, which only provides information to us. The expression should be ahere to the form of the translation. Only in the basis of the accuracy of the translation, combining the language characteristics of the industry, the translation can be equal to the original text and reflects the authority of the international business contract.
Chapter Four Conclusion结论
After studying the definition, style, language feature and tranlation skill of international business contract, we now get a clearer view of how to translate this kind of contract. As the significant part of international business activities, the international business contract plays an essential role in the world. As a translator of this kind of contract, the responsbilities are huge, since the translation can protect the legal rights of the contracting parties. During translation, we should be familiar with the similarities and differences between English and Chinese. By using appropriate translating skills, present an accurate and suitable translation work to the contracting parties.
Works Cited:文献参考
[1] Gengshen, Hu et al. 2001. Formulation & Translation of International Business Contracts. 1st ed. Beijing: Foreign Language Press. P23.
[2] E. A. Nida. Toward a Science of Translating, with Special Reference to Principles and Procedures Involved in Bible Translating. Leiden: Brill, 1964. P5.
[3] Nida,E.A.& Taber,C.R.The Theory and Practice of Translation.Leiden. E.J.Brill,1969.
[4] Zuoliang, Wang & Wangdao, Ding. 1987. Introduction to English Stylistics. 1st ed. Beijing: Foreign Language Teaching and Research Press.
[5] http://en.wikipedia.org/wiki/David_Hume
[6] http://en.wikipedia.org/wiki/Edward_Sapir
[7] http://www.EnglishCN.com
[8] http://en.wikipedia.org/wiki/Eugene_Nida
[9] Henry W. Legal Writing Style. St.Paul:West Pub. Co.,1961.
[10] Weiliang, Fu. 2002. Guiding of the English Contract Writing. Beijing: The Department of Electronic & Audiovisual Publications.
[11] Feng, Xu & Weiliang, Fu. 2007.
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