Dual language or bilingual arbitrations: five points for parties

Both dual language and bilingual arbitration clauses are common in Sino-foreign agreements. They are usually the result of a compromise in the negotiation of the commercial contract. They both potentially have far-reaching implications for the arbitration, including increasing the cost and complexity of the process without any corresponding benefit for the parties. This article identifies a number of threshold issues for parties to consider when dealing with the decision to adopt these clauses or, if they have already adopted them, how to deal with them in practice.

First, there is an important distinction to draw between what the authors refer to as “dual language” and “bilingual” arbitrations. “Dual language” arbitrations are conducted in two languages, for example, English and Chinese. “Bilingual” arbitrations by contrast allow both languages to be used interchangeably. The choice of procedure can have a significant impact upon, for instance, arbitrator selection (see point 3, below). The authors refer to both forms as “bilingual”, unless there is a reason to distinguish between the two.

Point 1: Consider whether you genuinely need a bilingual arbitration. The default choice should always be a single language of arbitration unless there is a compelling reason to adopt bilingual arbitration. This is not only in order to avoid additional costs and inefficiencies (referred to in point 2), but also because international arbitration tribunals and counsel are used to accommodating different languages into the procedure. For example, a Chinese-speaking witness will be entitled to give evidence in his or her own language, which will, in turn, be translated into English. Similarly, the relevant parts of a party’s factual exhibits in Chinese will also be translated into English. In Chinese-language arbitrations, the same rules will apply to English-language witnesses’ testimony and exhibits.

Damien McDonald is a partner and Matthew Townsend is a foreign registered lawyer at Fangda Partners