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|HomeArticlesInterpretation for Commercial Arbitration in India|
by William Lise
(Created December 6, 2010)
A recent assignment to interpret for witness examination in commercial arbitration in New Delhi offered a number of surprises regarding the procedures in the witness examination and their effect on the interpreting task.
The assignment involved interpreting for a witness examination in arbitration between a major Japanese company and a major Indian company. Unlike other arbitrations in which I had participated, there was only one arbitrator, who was a former (and recent) Chief Justice of the Supreme Court of India.
The arbitration was being conducted in the International Centre for Alternative Dispute Resolution in New Delhi. Getting to the venue from our hotel involved a car ride of nearly an hour. On the way, we passed the usually expected sights of street vendors coming up to our car to hawk all varieties of things we did not need, stray dogs, and even the occasional apparently stray cow making its way slowing across a road that is usually traveled over at breakneck speed by vehicles of all types, including compressed natural gas-driven three-wheeled "auto rikishas."
The witness examination was conducted in a conference room very similar to what would be found in other countries. No surprises. There were not as many creature comforts (no cookies, donuts, and drinks as are normally available at your average US law firm deposition room), but the room environment itself would work in other venues.
Here was the first major surprise. There was no stenographer, let alone a realtime reporter as is customary in high-ticket litigation in the US; there was a typist. The typist simply typed what needed to be recorded into a MS Word file as it was spoken, but this required that the speaker deliver the message in very short parcels, unlike the situation with a real stenographer, in which the speakers can speak at normal rates. Even with slow and split-up speech, however, the typist made some errors that needed correcting by either the typist or those noticing the typos on the projection screen of the Word window.
Being able to observe witness examination of local employees of the Japanese party for a full day before my actual interpreting task, I immediately discovered that things were going to be very different from what I had learned to expect in deposition interpreting for US patent litigation.
In a "normal" deposition in US patent litigation, with which I am familiar from decades of interpreting in such depositions, every utterance of anybody in the room is recorded verbatim with great accuracy. I was quite shocked to learn that this was not the case in the arbitration in New Delhi, in which many things said in the room by the parties or their counsel were not recorded at all. What was even more surprising (and a bit more worrying to me) was that many of the things recorded were merely paraphrased versions or descriptions of what persons in the room said, having passed from the lips of the translator and then been modified (and slowed down) by the arbitrator for the benefit of the record and the typist. The following is a fabricated example to give my readers an idea of the magnitude of the problem.
Counsel for the defendant (cross-examining the Plaintiff's witness regarding an affidavit he submitted): Is the information contained in your affidavit a true account of events regarding this case?
Arbitrator (after re-stating the now slightly modified question for the non-stenographer typist, who made more errors in typing the question: Counsel is asking you to verify the correctness of your affidavit. Would you please respond to that question? [This utterance is not recorded by the typist, thereby being lost to eternity]
Interpreter (finally allowed to interpret): [Interprets the question as corrected by the arbitrator and then interprets the arbitrator's "clarification" of the question.]
Interpreter: I believe it is correct.
Arbitrator: We are not interested here in your belief. We want to know whether what you wrote in your affidavit is or is not correct. Yes or no, is it correct? That's all we need you to say. [Again, this utterance by the arbitrator is not recorded by the typist, thereby being lost forever]
Interpreter: [Interprets the arbitrator's unrecorded comment for the witness.]
Interpreter: The content of it is correct.
Arbitrator (to the typist): The content is correct.
The above question and answer exchange would have taken approximately 30 second, even with interpreting, were it not for (1) interruptions and "helpful" explanations from the arbitrator, and (2) non-helpful errors made in typing. The actual exchange took at least 3 or 4 times that amount of time following the above fictional example, and there were times in the actual witness examination in which the required time was multiplied by a much larger factor. During my downtime, I calculated that, with all the high-paid talent tied up in this process, thousands of USDs could have been saved by flying in a court reporter from overseas (if, indeed, such personnel are not available in India).
Additionally, to a deposition interpreter accustomed to complete verbatim records of everything anyone in the room says being made during a witness examination, the unrecorded utterances and sometimes-incorrect paraphrasing of questions by the arbitrator were particularly disturbing. To the arbitrator's credit, however, I must say that he very kindly took corrections by me, the interpreter, when there was a substantial skew between the utterance of the witness and recorded content.
Another rather strange aspect of the process is that witnesses who gave testimony in English needed to be aware of the slowness of the typist and adjust his speaking speed to allow the typist to keep up. When a witness gave testimony in Japanese, the same was required of the interpreter, who needed to suppress the normal desire not to slow things down with a slowly interpreted witness response. With realtime reporting in US litigation this is almost never a concern.
Realtime Reporting. A type of court reporting in which the stenographer enters the utterances of people in the room and a very accurate (95% or greater) version of same appears on computer monitors in front of the participants in a deposition, all in "real time," as the speech is heard. This type of reporting is fairly standard in large-scale IP litigation.