A New ISO Standard: Legal Translation – Requirementsvon , veröffentlicht am 01.07.2020
The recently published International Standards Organization standard, ISO 20771 (the ‘ISO 20771 Standard’) purports to specify the requirements for professional legal translation and to apply to natural persons only. The DIN Standards Committee Terminology (NAT) NA 105-00-03-01 UA ‘Translation Services,’ the committee responsible for the adoption of such standards into the body of German standards, has rejected the ISO 20771 Standard on the grounds that it is pointless, reiterative, self-defeating, materially indeterminate, inconsistent with applicable German law, and (at least partially) impracticable within Germany. The DIN Standards Committee’s rejection means that the ISO 20771 Standard shall be neither adopted as a German DIN standard nor translated into German. The DIN Standards Committee even goes so far as to advise, explicitly, that ‘clients and translation service providers refrain from using this ISO standard in Germany and that certification companies  not offer certification according to this standard.’
In what follows, I will join the DIN Standards Committee in its criticism that the ISO 20771 Standard is inconsistent with applicable German law. I will then go on to argue that the ISO 20771 Standard is more or less a meaningless standard void of safeguards to ensure that the impartiality of translators certified under the ISO 20771 Standard cannot, reasonably, be called into question. But first two definitions that will play a role in this discussion …
The ISO 20771 Standard: legal translators and authorized legal translators
The ISO 20771 Standard distinguishes between, among other things, legal translators (sub-clause 3.4.5) and authorized legal translators (sub-clause 3.4.6). A legal translator is defined as any ‘translator who has the required competences and qualifications to translate legal specialist content’ (cross-references intentionally omitted), an authorized legal translator as any ‘legal translator who is officially authorized by a court or a government body’ (cross-references intentionally omitted).
Authorized legal translators in Germany
In Germany, legal translators, to use the ISO 20771 Standard’s term, become authorized by courts or government bodies in accordance with applicable state law (Landesrecht). These laws are more or less uniform across Länder and are each recognized by all the other Länder. That is also more or less what one would expect given that these laws govern vocational and continued educational matters, for which the Länder are primarily responsible, as the Bundesrat reminded everyone last year as part of the ratification process of the Gerichtsdolmetschergesetz (the Court Interpreters Act) here in Germany (see, for instance, the Drucksache 532/1/19 dated 30 October 2019, pp 9–10).
These Länder laws prescribe that only natural persons who are both personally responsible (persönlich zuverlässig) and fit (fachlich geeignet) may become authorized as translators. These laws also provide for a process which a candidate must complete successfully before he or she can become authorized; in Germany, this authorization is termed, depending on the Land, either Ermächtigung or Vereidigung, but the difference appears really to be in name only. The process that results in an Ermächtigung or Vereidigung is a so-called Verwaltungsakt within the meaning of § 35 clause 1 of the Verwaltungsverfahrensgesetz (the Administration Procedures Act), as the German Federal Court of Justice has made clear (see its order dated 6 June 2019, 1 StR 190/19, ¶ 6). A guiding precept not only of the requirements that authorized translators be personally responsible and fit, but also of the Verwaltungsakt is to ensure that authorized translators can ‘discharge, responsibly and properly, the duties with which they have been entrusted (ibid. (my translation)).
One of the primary duties entrusted to authorized legal translators consists of providing courts and government bodies with translations of physical documents that have been composed in a foreign language. That is, authorized legal translators act as experts for courts and government bodies, a role explicitly confirmed by the German Federal Court of Justice in its order dated 13 February 2019 (2 StR 485/18, ¶ 9).
In Germany, then, legal translators are not authorized to certify translations; only legal translators who have been duly authorized in accordance with applicable Landesrecht are authorized to certify translations, and these translations must bear the signature and the stamp of the authorized legal translator as well as the date and place the authenticated copy (Ausfertigung) of that certified translation was prepared.
Sub-clause 6.7 of the ISO 20771 Standard – signing off as a legal translator
Sub-clause 6.7 of the ISO 20771 Standard reads, in pertinent part, as follows:
In order to ensure full transparency and traceability when the translation is completed, even if there is no formal authorization requirement, the legal translator should sign off the translation as part of the deliverable in a manner agreed previously with the client or required by any other relevant agreements.
This sub-clause is facially inconsistent with applicable German law. In Germany, a legal translator who is not an authorized legal translator – as the DIN Standards Committee has also made clear – is not authorized to sign off any translation. Any legal translator who is certified under the ISO 20771 Standard and who signs off a translation for use in Germany will likely do more harm than good.
Just recently, there was a rape case before the Regional Court of Munich I, involving persons who spoke Dari, and little to no German, and who therefore required an interpreter for Dari. During the trial a Dari interpreter was engaged. As is required by German law, the judge enquired whether the interpreter was authorized (vereidigt) under Landesrecht, and the interpreter answered in the affirmative. The reason the judge posed this question is because interpreters engaged at trial must be either authorized under Landesrecht or sworn in ad hoc for purposes of the hearing alone. Had the interpreter denied that he was so authorized, then the judge would have been required to swear him in ad hoc. Because the interpreter claimed to be authorized, the judge was not so required.
However, it turned out that the interpreter was not authorized under Landesrecht and the defendant, who lost at trial and was convicted to six years in prison, appealed the ruling on the grounds that the interpreter was not authorized to interpret at the hearing – he was neither authorized under Landesrecht nor sworn in ad hoc. The interpreter claimed he had been under the impression that he was authorized (vereidigt) under Landesrecht; he claimed that, because he had been sworn in ad hoc so many times, someone (we don’t know who) at the Regional Court advised him that he was authorized (vereidigt) under Landesrecht. That’s not how any of this works; the appeal was admitted and made its way all the way to the German Federal Court of Justice, who granted the appeal and referred the case back to the Regional Court of Munich I for re-trial. You can read the details, in German, here and here.
The long and the short of it is: a convicted rapist won his appeal on a technicality, and the victim was subjected to a re-trial. Both could have been avoided, of course, if the interpreter was under the right impression(s). And one may object that the foregoing case involved interpreters, not translators, and that the interpreter made a crass mistake – none of that resembles anything in the ISO 20771 Standard. And that criticism is right as far as it goes. But it does not go very far.
The point of citing that case is this: an analogy holds. If the ISO 20771 Standard were adopted in Germany, there exists a very real possibility that a legal translator certified under the ISO 20771 Standard signs off a translation intended to be used at trial or in other official or quasi-official settings. On its face, that translation will appear, virtually of necessity, to be a certified translation prepared and certified by an authorized legal translator. The outcome would be some sort of mistrial, appeal, or additional translation costs for the parties who will be required to obtain a certified translation prepared and certified by an authorized legal translator. All three possible outcomes involve additional costs, and an unwarranted taxing of the nerves, for all the parties to the proceedings.
This possibility alone justifies the DIN Standards Committee’s rejection of the ISO 20771 Standard.
The principle of impartiality
The possibility outlined above is exacerbated by a further issue that finds no consideration in the ISO 20771 Standard. Under Clause 1, titled ‘Scope,’ one reads that this standard is intended, among other things, to demonstrate legal translators’ ‘capability to maintain a level of quality in legal translation services that will meet the client’s and other applicable specifications.’ This scope seems inaccurate. Legal translation is not primarily concerned with meeting client’s specifications. Experience has shown that legal translation is primarily concerned with satisfying clients’ needs. Whatever else those needs involve, they usually involve a requirement that legal translators be and remain impartial.
As a matter of routine, legal translations are used and implemented by two or more parties. Rarely do cases exist in which parties have pari passu interests. Experience has shown that, generally speaking, most legal translation clients are cognizant of this fact and seek out certified – or ‘signed-off’ – translations either to obtain an impartial rendering of the source text in the target language or to give assurance to all parties involved that the source text in fact contains the content everyone thinks it does. Impartial renderings are generally required by courts and government bodies; said assurance by parties to contracts, agreements, and the like – in Germany, authorized legal translators are regarded as experts.
Where the impartiality of legal translators’ can be, reasonably, called into question, their translations are generally useless; any bias, or even appearance of bias, that benefits any party over any other disqualifies legal translators and casts earnest doubts on their work product. The reason is clear enough: (authorized) legal translators must be subject to professional rules that guarantee a reasonable assumption of impartiality; where these rules are not embodied by legislation, they ought to be embodied in industry standards. Otherwise, nothing would bar such translators from attesting to the accuracy of a translation and – at the same time – being partial to some interest affected by that translation.
Under the ISO 20771 Standard, observing the principle of impartiality would – so it seems – be required only if some unspecified ethical or professional requirements (see the Introduction to the ISO 20771 Standard) and/or the authorizing court or government body were to require (authorized) legal translators to observe it. In a word, the ISO 20771 Standard fails to require this hallmark of professional legal translation. In Germany, authorizing courts and government bodies require authorized legal translators to observe the principle of impartiality; see, for instance, § 5(1) item 5 of the Hamburgisches Dolmetschergesetz or § 8 of the Sächsisches Dolmetschergesetz. This requirement rests on a concept of impartiality analogous to that contemplated by § 3 of the Beurkundungsgesetz (Authentication Act, or ‘BeurkG’). In Hamburg, for instance, the analogy is explicit. Section 18 of its ‘Merkblatt für die Anfertigung von beglaubigten Übersetzungen’ expressly says as much.
Section 3 BeurkG bars the involvement of notaries and, by extension, authorized legal translators in certain cases. These cases include, but are not limited to, matters involving the notary’s person, his or her spouse (or ex-spouse(s)), his or her family members, his or her business partner(s) (or ex-business partner(s)), and the like. Section 6 BeurkG defines causes of disqualification as regards declarations of intent – along lines similar to the bar mandated by § 3 BeurkG. Impartiality holds, following Winkler, as a ‘formative feature of the office of any notary’ (Winkler BeurkG, 19th Edition, § 3 ¶ 4 (my translation)). By analogy, it is a formative feature of the duties discharged by authorized legal translators. Sections § 3 and § 6 BeurkG embody, then, mandatory professional rules which guarantee that, where notaries and authorized legal translators observe those rules, their impartiality cannot be, reasonably, called into question.
One will look in vain for the words ‘unbiased’ and ‘impartial’ and the like in the ISO 20771 Standard. The best this standard has to offer is the following vagary:
Due to the formalized, official or sensitive nature of the subject matter in certain countries, settings and under certain circumstances, legal translators can be subject to specific professional, confidentiality and ethical requirements, authorization, certification, and security clearance procedures (Clause 4).
Legal translators ‘can be subject to specific’ requirements, but they need not be. To wit: nothing in this standard expressly or explicitly prohibits legal translators from signing off translations with the intent to benefit themselves personally, to benefit friends and family, and to benefit clients and other individuals in any bias and partial manner. This absence must weigh against adoption of the ISO 20771 Standard – not only in Germany and in any other country which has comparable requirements to which authorized legal translators are subject, but also – und erst recht – in any country which does not have comparable requirements for authorized legal translators.
A legal translator certified under the ISO 20771 Standard can sign off a translation of his or her own marriage certificate, a translation of loan documents for friends and family, and so on. No one – not a court, not a government body, not a private party to an agreement, not any one – can reasonably rely on any translation signed off by any legal translator certified under the ISO 20771 Standard, unless that translator is also an authorized legal translator – in which case, the ISO 20771 Standard is meaningless.
The DIN Standards Committee has rightly rejected the adoption of the ISO 20771 Standard in Germany. The advocates of the ISO 20771 Standard will retort by saying that this standard is voluntary and overridden by country-specific laws, rules, and regulations. That is all well and good. And that retort might be enough to disperse any misgivings concerning signing off translations under sub-clause 6.7 – though I doubt it. Nor is the advocates’ retort enough to disperse misgivings concerning the principle of impartiality.
Quite simply, the ISO 20771 Standard is meaningless; it contains no clause or sub-clause that would ensure that the impartiality of legal translators cannot be, reasonably, called into question.