The complexities of legal translation in the drafting of bilateral treaties between Italy and English-speaking countries

ABSTRACT

As observed in previous research, the translation of law has played a very important part in the contact between different peoples and cultures in history, and is playing an even more important role in our increasingly globalized world. The problems arising in the translation of bilateral treaties do not appear to have been explored as extensively when compared with the analysis of the translation of equally authentic texts undertaken in national, supranational and international contexts.

Therefore, this paper investigates terminological difficulties encountered in the translation of specific provisions in a selection of bilateral treaties entered into between Italy (civil law) and English-speaking countries (common law) to ascertain how translators have attempted to bridge the divide between the different legal cultures concerned. It is hoped that this investigation, by drawing comparisons with translation approaches adopted in multilateral instruments, will highlight problems encountered in the translation of bilateral treaties – a hitherto largely unexplored area of legal translation.

KEYWORDS:

• legal translation
• bilateral treaties
• common law countries
• Italy

Acknowledgement

The authors are extremely grateful to Associate Professor Eva Wiesmann of the Dipartimento di Interpretazione e Traduzione at the Università di Bologna for her invaluable suggestions upon reviewing the manuscript.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Rocco Loiacono is a lecturer in the Master of Translation Studies at the University of Western Australia and in the Curtin University Law School, Perth, Australia, where he teaches the Property Law and Advanced Research courses. Prior to obtaining an academic appointment, he worked as a lawyer for 10 years. Rocco was awarded his PhD in 2014, which focused on translation of the bilateral agreements between Australia and Italy. His particular research interest is the translation difficulties arising as a result of the differences that exist between continental legal systems and the English common law, and he has published widely on this research in peer reviewed journals of translation, linguistics and law. In November 2017, Rocco was elected National President of the Australian Institute of Interpreters and Translators (AUSIT), the professional association for translators and interpreters in Australia.

Laura Bertoli is a teacher of Italian (linguistics and literature) and history at the Istituto Superiore ‘Lorenzo Lotto’ at Trescore Balneario, Bergamo, Italy. Prior to this appointment, Laura taught for four years at the Professional Training Institute of the Fondazione Ikaros at Grumello Del Monte, Bergamo, Italy. Laura obtained her masters degree (cum laude) in modern philology at the Università Cattolica del Sacro Cuore, Milan, in 2014. Her main research interests include dialectology and languages for special purposes.

ORCID

Rocco Loiacono http://orcid.org/0000-0002-9775-6538

Notes

1 In this regard, note, for example, the interpretative problems caused by the word accident in Article 17 of the Warsaw Aviation Convention (1929), which has given rise to considerable litigation across the world. See, for example, the Australian case of Povey v Qantas Airways Ltd [2005] HCA 33. The authentic languages of the Warsaw Convention are French and English.

2 See, for example, Šarčević (1997), Cosmai (2003), Cao (2007), Gémar (2013).

3 The general differences between civil law and common law systems can be described as follows. Broadly speaking, the civil law system of the European continental tradition is based on the written codification of general norms, while the English common law system is based on the doctrine of precedent; that is, the use of decisions in previous cases to determine how the law should apply in a particular situation. As Masotto (2009, p. 125) explained, originally the civil law system developed in medieval universities on the basis of Roman law, and, in particular, the Corpus Juris Civilis of the Emperor Justinian. Its divisions and concepts were based on substantive law, which was founded on a number of abstract principles, often theological or philosophical. The lawyer’s development was purely theoretical, and resolution of individual cases was not of concern. By contrast, the common law system developed not in universities, but in a centralized system of courts established by the King. As time progressed, the Courts increased their jurisdiction and produced judgements that, over time, formed a body of rules emanating from the same Courts. When a new matter came before the court reference was made to previous judgements from analogous cases, which gave life to the system of precedent. The training of lawyers occurred via the study of precedents and procedure that was required to be followed in the Courts (Masotto, 2009, p. 124).

4 The phrase legally equivalent is not used here in the same strict sense as ‘equivalent’ or ‘equivalence’ in translation theory: ‘[a] translator should produce the same effect on his readers as the source language (SL) author produced on the original readers’ (Newmark, 1988, p. 22). Each authentic text of a treaty, being legally equivalent, is a statement of the law and has the same (legal) status.

5 In this respect, Šarčević (1997, p. 215) cited the example of the parallel English and French texts of paragraph 1 of Article 45 in the Convention of the Law of the Sea, where ‘syntactic and stylistic diversity is kept to a minimum’.

6 These totals exclude ‘Exchanges of Notes’ between embassies and ministers, and Memoranda of Understanding, since the form of these documents are often not comparable to the form of multilateral instruments.

7 See, for example:

1. Articolo 2222 of the Italian Codice Civile, which defines the term lavoratore autonomo; that is, a contractor who, in exercising independent employment, is contracted to complete a piece of work according to his or her own methods and is not subject to his or her employer's control, other than with regard to the end product or final result of his or her work; and

2. the following legislative decree (D.lgs. 9 aprile 2008, n. 81) on workplace health and safety: http://lavoro.gov.it/documenti-e-norme/studi-e-statistiche/Documents/Testo%20Unico%20sulla%20Salute%20e%20Sicurezza%20sul%20Lavoro/Testo-Unico-81-08-Edizione-Giugno%202016.pdf (accessed 10 October 2016).

8 This expression makes reference to the official attestation of the legal authority of the person who has placed his (or her) signature on administrative deeds and documents, as well as the authentication of the signature itself.

9 Broadly speaking, certification, attestation, authentication or also legalization.

10 Associazione per delinquere, as stipulated in article 416 of the Italian Codice Penale, as noted by de Franchis (1996, p. 406), cannot really be considered an equivalent to conspiracy under the common law, given that the former entails a criminal association of three or more persons, and thus is directed more towards organized crime, or, as de Franchis puts it, ‘racketeering organization’.

11 A conspiracy generally; that is, an agreement between two or more persons to commit an illegal act, be it a criminal act or civil wrong. However, this is a term that does not have an exact equivalent in the civil law system.

12 An offence typical of the English and North American criminal law, on the basis of which an agreement between two or more persons to commit an offence or an illegal act, or even an act which may be legal but is committed via behaviour that has the characteristics of an offence or is illegal, is punished. The constituent elements of the offence are an agreement between two or more persons and an external objective (overt act) that of itself may not be illegal, but is sufficient to manifest the intention to commit an offence or even a civil wrong. The offence of conspiracy does not have a direct comparison in Italian criminal law, being a kind of cross between the Italian l’associazione per delinquere (confederation to commit a crime), which does not require an organizational structure, and the accordo volto a commettere un reato (agreement for commit an offence), (a quasi-crime), which is not punishable under the Italian Criminal Code (articolo 115 Codice Penale). There is similarity, however, in the comparison with the offence of the agreement to commit a political conspiracy (article 304 Italian Criminal Code).

13 Provision of clemency for an individual, by the president, in which the sentence imposed is reduced, in whole or in part, while the ancillary punishments and the other effects of the conviction remain.

14 Grazia extinguishes in whole or in part the sentence imposed, or commutes it to another form of punishment prescribed by the law.

15 Given that the example is taken from the Treaty on mutual assistance in criminal matters, it is appropriate to deal with corresponding criminal law terms in the analysis. However, it should also be noted here that article 163 of the Italian Code of Civil Procedure provides for a citazione civile, whereby a plaintiff requests the appearance of the defendant to answer a claim (see Favata, 2003, p. 80). de Franchis explained (1996, p. 501) that a citazione civile could be considered ‘bringing a civil action against someone’.

16 It is the document by which a person is called to participate in a criminal trial. The document can be addressed to: witnesses, either in the investigative or trial phase, a suspect during the preliminary investigations and the accused, in the cases in which the public prosecutor deems it necessary for him to be questioned.

17 The witness has the obligation to present himself to the judge and to comply with the conditions given by that judge for the requirements of the trial and to respond truthfully to the questions that are asked of him.

18 In a legal sense this term indicates the entirety of rights and obligations, the active and passive legal relationships that have an economic content, that pertain to one person or not-for-profit organization.

19 (L)a pluralità unificata di rapporti giuridici attivi e passivi che, alla morte della persona, si trasmettono ai suoi successori.

20 The trust is the most original and perhaps the most important institution in English law and the common law tradition […] we note that this is an untranslatable term because it refers to an institution that has absolutely no conceptual equivalent in the civil law system.

21 In the civil law system canone means the periodic payment of money or of fungible goods which is compensation for the use of property.

22 Consideration given for a mining lease, whether such lease creates a tenancy, conveys a fee or grants an incorporeal right or a mere license.

23 It is the right to enjoyment of the property of another in the same way as the owner would be able to enjoy it, however with the obligation to respect its legally approved use. In other words, it is the right by which another person, who is not the owner, can enjoy, for a period of time, all the benefits of the owner’s property. The owner, who is consequently deprived of possession of the property, becomes its reversionary owner.

24 The common law does not have an equivalent for this civil law concept.