In the hit fictional television show Severance, American corporate workers have their brains severed so that their work self has no knowledge of their personal life self. Yet, this concept is not totally fiction; legal translators can learn a lot by studying the humble severance provision, a neglected boilerplate term included at the back of most English contracts but absent in Chinese ones. The cultural difference in lawyers’ drafting behavior should tell us that Asian lawyers, and to some extent Latin American lawyers, are reasoning holistically whereas Anglophone lawyers developed a tradition of “severance” based reasoning (see related academic study here). Recently, with the rise of online contract provision databases, the actual behavior of lawyers in China has revealed a growing use of severed reasoning in drafting contracts. This feature of Anglophone reasoning creates a conflict between the holistic approach used by non-native translators when interpreting contract provisions and how contracts are drafted in practice.
What is a Severance Provision?
In contract law, a severance provision states that a contract will continue to be enforceable even if the terms are held by a court to be unenforceable. Though often overlooked, boilerplate contract terms tell us something very important about jurisprudence and contract law generally. Back in the old days, judges viewed contracts as integrated wholes, just like a good novel where you can’t just skip to the end and expect the last few pages to make sense. Lawyers, based on how they actually draft contracts, came up with the concept of the severance provision to indicate to judges that the contracts they are drafting are not integrated wholes, but rather involve a lot of mix and match and that you can skip to a later part of the contract and still understand it. Here is a good example of a severance provision used by the law firm Skadden:
“(b) Severability. In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal, invalid or unenforceable under any present or future Legal Requirement: (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable provision as may be possible.”
The idea that, unlike a novel, one can “skip to the end” is a key part of the contract drafting mindset. If you read typical commercial contracts, you will notice that they include lots of capitalized terms like Investor, Liquidation Event, or Permitted Transferee. Often, these words involve a lot of legalese that businesspeople say they have a difficult time understanding. What’s missing here is just as important as what you can find: there are no acronyms. For instance, taking a look at this cancer study reveals numerous sentences using acronyms that would force you to start back at the beginning of the study (“Aberrant activation of CDKs, which is frequently seen in human cancers, provided a rationale for designing synthetic inhibitors of CDKs as anticancer drugs. Go to: Cell cycle proteins and their role in physiology and cancer”). When science translators work with contracts, what tends to happen is that they introduce lots of acronyms that would make it impossible for someone in an investment-related agreement, for example, to jump down to “Lock-Up” and very quickly get an idea of what the agreement says about restrictions on Lock-Up Shares.
Lawyers read contracts differently from how doctors read medical studies; they use two totally different approaches. A second problem faced by STEM translators and translators working in marketing and literary fields alike is that they often introduce meanings not contemplated in the original document because changing essential meaning is considered good practice in the STEM and media fields.
How Lawyers and Translators Differ
When working with the contract language, a legal translator will often say that provision X must be reinterpreted to mean something other than the plain language of the contract, because provision Y in their mind implies so. This ignores the general spirit of the severance provisions in these contracts, the same provisions that contemplate that the individual provisions are not necessarily an integrated whole, as if they were a poem or novel, but often intended simply to resolve certain legal problems ad hoc. This is particularly evident in cases where a court’s interpretation of the provisions is very much different from what the actual lawyers were thinking of when drafting the contract. You can actually trace where a lot of the form contract language came from and see that the parties to the contract were referencing a previous litigation or case where a big problem occurred, and therefore inserted a provision from an external form contract. E-mails between the lawyers will even say so and, in some jurisdictions like California, extraneous evidence showing the intent of the parties in this manner can even be introduced as evidence of what the provision means. Thus, legal translators should not be inserting meanings into contracts that no courts would find and that were not intended by the actual parties themselves.
A good example of how lawyers take severance provisions into account and how legal translators ignore them can be found in the legal documents issued by big technology companies in China, which tend to budget adequately for these things. Following years of persecution by Trump, many such companies established international legal departments and began hiring lawyers with JDs and years of experience in the United States. English legal documents drafted by lawyers working for these big tech companies are drafted very similarly to how they would be drafted by transactional lawyers in the United States, which is to say a lot of copy and pasting is involved. Older lawyers can tell you that when they drafted contracts, they would photocopy form provisions and literally cut and paste them onto the contract with glue. This seems to be where word processors got the idea of cut and paste from: what used to take lawyers hours can now be done in minutes. Many legal contract drafting tools now make it very easy to copy form text in.
I often help revise English contracts for some of these law departments, and find that Chinglish tends to find its way into some provisions since not everything can be cut and pasted. Looking at the manner in which these Chinese companies’ own lawyers draft these contracts, one can see clearly that almost all contract provisions were taken from forms databases or other publicly available contracts so as to cover all the possible legal bases. In fact, Mandarin Chinese contracts follow the same pattern of copying and pasting. Legal translators seem to be oblivious to the fact that this is happening. Lawyers working on these matters, if asked, say they are targeting specific legal problems that have been pointed out by colleagues or that they discovered through research. Moreover, these are Chinese lawyers from China, so translators can’t use the excuse that they don’t understand these obtuse foreign concepts. If you are translating legal documents and holding yourself out as an expert in this field, you really should have some idea of what the contracts mean. What happens in practice is that translators just take on work in a variety of fields without doing any training, or even study, and after having gotten good feedback from similarly ignorant peers, believe themselves to be experts.
Inferring Things Not in the Legal Text
Something done by legal translators coming from literary backgrounds is they infer a lot of things in the text that are not actually there to begin with. The phenomenon that legal translation is viewed as a refuge for many people who thought that literary translation is no way to make a living is well-known, to the extent that some legal translation textbooks even declare that there is basically no difference between literary translation and legal translation—at least as literary-minded people see it.
The famous Chinese novelist, Qian Zhongshu once wrote that good translation involves ”transforming” the text. I have seen literary translators from the Paper Republic give talks at Chinese literary conventions about how they transform literary texts to capture the author’s true meaning. Often, Chinese sentences are doubled in length or cut in half. This is with the author’s consent, of course. Tolkien’s Chinese translator even told me that his reading of a text in English is an inquiry into the true, deeper, human meaning that is not visible on the surface of the text but is waiting to be discovered. No part of this literary approach, however, is particularly effective for legal translation purposes. Thus, when a law-trained person works with a legal document, the result is usually a lot different than what you get from someone who was primarily trained in literature.
Meaning in the law is constructed in a manner that is significantly different from literature; most legal documents are not unilateral, that is they are, at minimum, involving two parties to a contract, with statutes involving hundreds of persons in a legislature. Consequently, the courts have devised a variety of statutory construction methods that can apply prior to trying to untangle the legislative intent. When working with legal documents, literary translators lacking specific legal training frequently impose their personal ideology and beliefs on the documents in a way that someone applying those provisions in a legal context would not interpret.
An experiment I did on this surrounded the recent news that Chinese technology companies in the US, particularly ByteDance, had unlawfully sent data about American users to the People’s Republic of China. I looked at subcontractor and partnership provisions used by technology companies that covenant user data would not be sent to any jurisdiction lacking inadequate data protection measures. When I asked some of the highest regarded “red circle” firm legal translators, ones earning very high rates of pay, I found that they interpreted the rule to say that adequate data protection measures will be imposed if user data is sent to another jurisdiction. These translators had good reasons for this assertion: they said it does not make sense to say that a jurisdiction could be required to have adequate data protection measures. This would imply that legal requirements are applicable to a government agency or instrumentality, which is not how things work in real life (according to their opinion), and that the intended meaning must include the omitted words that change the requirement from being imposed on the jurisdiction’s governmental regime, to being imposed on the company itself.
These translators had apparently never read documents like the US Constitution or NAFTA, or the recent Bilateral Investment Treaties, which do put legal restrictions on government entities. Instead, they simply imposed their own beliefs—grounded very much in their ignorance of foreign legal systems—on the documents and changed the translated message very dramatically from something that would keep Chinese tech firms out of trouble to announcing a new rule that just happens to be US authorities’ worst fears. As is typical in these kinds of situations, auditors were brought in to resolve the problems in what newspapers identified as the “Project Texas” privacy audit. Chinese legal translators with a literary background interpreting a document tend to read it much like a novel, where the individual reader’s interpretation of the text is given key importance. However, in law, beauty is not in the eye of the beholder, and this is why judges, not parties to a dispute, interpret contracts and statutes.
