ABSTRACT
On the basis of the conception and importance of international business contracts, this thesis analyzes the diction characteristics from the aspects of professionalism and formality, including the business terms, legal terms, technical terms, archaic words, literary words, and coordinate words. Under the guidance of the Skopos Theory, this thesis employs several practical translation strategies in English-Chinese translation and Chinese-English translation by analyzing some examples that are easily misunderstood in daily commercial life. The thesis aims to offer business people the relative translation guidelines while doing the international business contract translation so as to better their translation skills.
Key words：International Business Contract; Diction Characteristics; Skopos Theory; Translation strategies
Contents
1．Introduction 1
2. A Survey of International Business Contract 2
2.1 Definition of International Business Contract 2
2.2 Categories of International Business Contract 2
3. The Diction Characteristics of International Business Contract 4
3. 1 Professionalism 4
3. 2 Formality 6
4. Translation of International Business Contracts 11
4.1 Present Situation of International Business Contracts Translation 11
4.2 Skopos Theory in International Business Contract Translation 12
5．Conclusion 18
Acknowledgements 19
References 20
1．Introduction
Since the implementation of reform and opening policy in China, in particular, with China’s entry into WTO, China has been deeply melting into the world. Especially in its field of trade, more and more business people tend to contract with foreigners. A contract is an agreement giving rise to obligations which are enforced or recognized by the law [1]1. Since all the parties need contracts to restrict each other’s behavior and protect their own legal rights and benefits, international business contract is now playing an important role in international trades. On the other hand, there are varieties of inaccuracies or even errors in the translation of international business contract, which may make a negative impact on international trade. Hence, translation of international business contract increasingly shows its importance and necessity.
According to Vermeer’s Skopostheorie, “Any form of translation action, including therefore translation itself, may be conceived as an action, as the name implies. Any action has an aim, a purpose.” [2] Therefore, this thesis mainly attempts to explore approaches towards contract translation from the new perspective of Skopos. It proves the rationality and applicability of the Skopos approach in international business contract translation. Meanwhile, the thesis includes the study of basic knowledge of international business contract and its diction characteristics, which paves the way for the analysis of both English to Chinese and Chinese to English translation of international business contracts under the direction of Skopostheorie.
2. A Survey of International Business Contract
2.1 Definition of International Business Contract
In the modern commercial society today, contracts have become so much a part of living in society. Then, what is the definition of a contract? The answer may differ from country to country. The United States defines a contract as“a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty” 19 Once the parties are from different countries, their agreement becomes international. Generally speaking, an international business contract can be valid under the following three situations:
A. Contract should be deemed as a business contract
B. One or more contracting parties do not have Chinese nationality
C. The contractual subject matter shall be shipped across the border of China[6]6
2.2 Categories of International Business Contract
So far as a certain country is concerned，a business contract is also called a foreign contract, written agreements that are signed and entered into in accordance with relevant laws to specify the respective rights and obligations of the parties hereto by and between enterprises or other economic organization
s of China and foreign enterprises, economic organizations or natural persons for certain economic purposes，such as exchange of commodities, financing and economic and technical cooperation and exchange23-32.
In addition to the above contracts involving foreign interests, there are many other types of business contracts, such as insurance contracts, storage contracts, agency contracts, contracts for employment of foreign staff members, and contracts for international transportation, etc.
3. The Diction Characteristics of International Business Contract
International business contract is a legally binding contractual document. The language it used does not seek the goal of artistic beauty like literary works. In fact, what it pursues is the precise and rigorous logic, norms of professional presentation, clear thought, clarity and orderliness. Words are the building blocks of communication. The language of English contract is dramatically different from daily English in terms of vocabulary and style [9]11. Therefore, before we start exploring the translation strategies of international business contract, it is necessary to discuss the diction characteristics of international business contract from the perspectives of professionalism and formality.
.
3. 1 Professionalism
A specialized and technical vocabulary is the first and most obvious way to adjust to a domain of social experience or activity. The use of technical terms marks the feature of professionalism of international business contract. Technical terms in the international business contract, which include legal terms and business terms, boast a whole glossary of standard vocabulary and wide applications, and have their own precise, unique and unambiguous meanings.
3.1.1 Business terms
There are a number of professional business vocabularies in some kinds of economic professions, such as international trade, international commercial law and corporate governance and so on. The practical professional business terms in international business contract relate to all the trading sessions and the related documents, so it must be done right. The so-called “right” does not only indicate that the spelling and punctuation is correct, more importantly, it also means the content should be consistent with the facts, as the specific performance in the facts, data and terminology [10].
As contracts are related to various sectors of business, lots of business terms can be easily found in contracts. such as equity joint venture(合资经营企业), articles of association（公司盖章）, know-how（专有技术）,and negotiable instruments(可流通票据). Pertinent business terms concisely and accurately communicate the intended content [11].
3.1.2 Legal terms
A contract is legally binding economic document. Its language belongs to the area of law. Legal terms, which are generally more concise and comprehensive to stipulate the contact parties’ rights and obligations, are indispensable in international business contract. The following table is some common words in international business contract with its unique legal meaning.
Table 1
Words Legal Meanings
Liquidation 清算
Termination 结束，终止
Vacation 休庭期
Arbitration 仲裁
Immunity 豁免权
Prejudice 损害，侵害
Prayer 诉讼
Action 诉讼
Sentence 判决
Force Majeure 不可抗力
Subject matter 标的物
Different from their ordinary meanings, words of this category have their legal connotations in international business contract. And they reflect the dignity of the law. Such words are termed as “legal homonyms” by Peter M. Tiesma in his book Legal Language. Failure to identify legal homonyms may cause false and distorted translation. The examples will be discussed in Chapter 4 about the translation of international business contract.
In addition, according to Frederick Bowers [12]30, “shall”, “may”, and “shall not” are the most common legal performative verbs and act with the illocutionary forces of obligation “shall”, permission “may”, and prohibition “shall not”.
3.1.3 Other Professional Terms
Since a contract is heavily specialized and involves many other fields lik
e trade, finance, insurance, transportation, customs, commodity inspections and other aspects of professional knowledge, it is important to choose the right meanings of these words depend in their different fields, such as “down payment (预付定金), expenditure(支出)” from the insurance field. Another detailed example will be explained in Chapter 4.2.2.2 about “choosing the right meaning in context”.
In addition, technical terms is another professional terms that marked the features of contracts. These words are specialized in scientific fields including natural scientific field and social scientific field; certain technical words have to be used. The function of these technical words is partly to donate things or processes which have no corresponding names in ordinary life, and partly to increase the precision on the part of the reader.
For example, a contract of purchases and sales of products must sign out the name and the size of the products, which involves many technical words, such as PTA (material of chemical fiber), MEG (chemical solution), DC MOTOR (a mechanism), link mechanism, etc.
Technical terms also involve many words exclusively employed in legal terms and business terms. A number of common words have been converted into technical words with only one of their meanings adopted in contracts, such as action(诉讼)，negligence(过失)，acceptance(承兑，承诺)，confirm(保兑)，arbitration award(仲裁裁决)，more or less(溢短装) and infringement(特权).Common words used in such a special way help mark out a text belonging to the field of legal and business documents[6]26.
All the professional words in different fields mentioned above help increase precision of business contracts and dislodge ambiguity or confusion on the part of the involved parties, but they also make it difficult for the common readers to comprehend the business contracts.
3. 2 Formality
Business contracts stipulate the contracting parties’ rights，obligations and activities directly and clearly, so the words it used must be formal, precise and serious. Contract English has long been characterized by frequent use of archaic words, literary words, coordinate words and nominalization. These words used in such a special way can help to prove a text regarding to business contract only, which show the formality and sanctity of business contracts.
3.2.1 Archaic words
There is a frequent use of archaic words in international business contract. In order to pretext a professional monopoly, you can lock the trade secrets in the safe of an unknown tongue, while the legalese is the way of meeting the need [13].
Archaic words are rooted in the Old and Middle English and are kept till now in the legal documents. Although they appeared old-looking and out-dated, they are indispensable in business contract. It is justified in saying that it is these archaic words that not only make contracts highly formal and dignified but also abstract the contractual language to keep its strong formal flavor, and shield itself from language repetition and ambiguity. The archaic words often appear in the form of compound adverbs, like “here, there, and where” combining with some particles “after, at, by, in, of, from, to, under, with, upon” etc. We should understand the rule that “here” means “this”, “there” equals “that”, and “where” stands for “which”. For example, look at the following table [8]355-366:
Table 2
Archaic words Meaning Archaic words Meaning
hereafter following this hereby by this means
hereto to this herewith with this
thereof of that thereafter after that
thereinafter in that part of a Contract thereupon as a result of that
whereof of which wherein in that; in which
According to David Crystal and Derek Davy [14]205, archaisms nearly always seem to add a touch of formality to the language in which they occur. There is no doubt that the frequent use of these words provides the business contract formal veracity and conciseness. What’s more, it is more precise and competent in leading a sense of elegance and solemnity to legal documents.
3.2.2 Literary Words
Also as big words or formal word, literary words mainly appear in formal writings, such as theoretical works, formal addresses and legal documents. These words are also frequently employed in English business contracts, to help increase precision and seriousness of the content in business contracts. For example, the following words in Column A are used to take the place of commonly used words in Column B even though they are of the same meaning.
Table 3 [15]
A. Literary words B. Informal words
purchase buy
render make
terminate end
obligation duty
endorse sign
demonstrate show
grant give
manufacture produce
notify tell
approximately around
purchase buy
title ownership
prior earlier
Word in the left column exceed their colloquial counterparts in the right c
olumn, because they are more compatible with the greater solemnity demanded by English contracts. Because literary vocabulary contributes to increasing solemnity and formality in English contracts, five literary words “terminate”, “principle”, “notification”, “assistant”, and “confidentiality” are more frequently adopted in English rather than their colloquial counterparts “end”, “rule”, “notice”, “help” and “secret” [9]14.
The main originations of these formal words are French, Latin and Greek. It is known that in history French became the official language of England after Norman Conquest. Later, even though English gradually replaced French and became the official language, many French words still remained as formal words in official documents and contributed to increasing solemnity in English contracts. Until now, these words have become part of English and functioned as formal words in such areas as politics, military and law, etc.
3.2.3 Coordinate Words
It is a common phenomenon that coordination of synonyms or relevant words is widely employed in English business contracts. Look at the following example [16]27:
The parties may, through consultation, make amendments and revision of this contract as and when the need arises.
The synonyms “amendments and revision” and “as and when” are rendered into “修改” and “在… …时” respectively. They are two pairs of coordinate words.
There are many other examples in international business contract, like terms and conditions; loss or damage; sole and exclusive; sublicense or subcontract; modifications or improvements; whole or part; expiration and termination; disputes and differences; etc.
The combinations of synonyms or relevant words are another embodiment of the archaism and formalism of international business contract. They make the contracts more exact and precise and help avoid ambiguity or loopholes. For example, in order to avoid any loophole and make the meaning clear, the combination of developments, improvement, modifications or inventions lists all kinds of possible innovations that may happen on the licensed products.
3.2.4 Nominalization
We find that nouns are most frequently used in English contracts. Due to the authority and solemnity of such a special language register, adjectives, adverbs and conjunctions are selected from a limited rage. The reason may be that nouns make it much easier to organize into an argument. Nominalization, as a distinctive feature of English contracts, refers to a noun phrase whose headword is an abstract noun derived form another word class, usually a verb or an adjective. What’s more, nouns and noun phrases are in conformity with the formal style required by international business contracts. The following examples may shed some light on how such transformations are completed.
Table 4
Fulfill fulfillment
Agree agreement
Expire expiration
Insure insurance
Declare declaration
Notify notification
It demonstrates that frequent use of nouns is an important feature that helps to distinguish English legal documents from others because nouns are in perfect conformity with the formal style required by English legal documents.
4. Translation of International Business Contracts
4.1 Present Situation of International Business Contracts Translation
It is revealed from the above discussion that research on contract translation between English and Chinese are a major player in China’s foreign business activities. Early studies in this regard can be traced back to the middle of the twentieth century, when English stylistics began to advance with great strides and more attention was paid to pragmatic style other than the literary language. At that time, studies on the contract translation were mostly done by the abroad scholars, such as A Short Course in International Contracts (1999) by Karla C .Shippey, and A Manual of Style for Contract Drafting (2002) by Kenneth A. Adams[17]3.
In recent years, a large number of translation approaches to the study of contracts have been developed in China, according to the data available. For example, Hugengshenconducts a systematic study on creating a model for international business contracts translation by integrating the macro-level theories of translation studies with the micro-
level translation practice, and then make use of translation examples to verify the practicability of the model. He gives a general description of the translation model and then establishes a translation model for international business contracts translation.
As Huang Guowen[20] puts forward, “To analyze a translation or tackle a translation problem, one must be guided by a specific theory.” Since Skopos Theory provides a reasonable and satisfactory approach to guide the contract translation, this chapter will study the application of the Skopos Theory in the translation of international business contract and discuss what translation strategies are appropriate for it.
4.2 Skopos Theory in International Business Contract Translation
4.2.1 An Introduction to Skopos Theory
To carry out the translation strategies of international business contract from the new perspective of Skopos, it is necessary to be clear about what Skopos is.
“Skopos Theory is an approach to translation which was developed in Germany in the late 1970s, and which reflects a general shift from predominantly LINGUISTIC and rather formal translation theories to a more functionally and socio-culturally oriented concept of translation” 4.
Skopos is a Geek word for “purpose”. The Shopos theory is the core of German functionalism. It views translation from a different perspective, takes translation as an action and claims the success of a translation depends on whether it has achieved its purpose. The Skopos Theory includes three rules, the Skopos rule, coherence rule, and fidelity rule (Inter-textual Coherence), in which, the most important rule for any translation is, in Vermeer’s terms, the Skopos rule, which says that a translational action is determined by its Skopos, namely, “the end justifies the means” [23]101. That is to say, the choice of strategies to be used in a particular translation is determined by its particular purpose; the supreme goal of a translation is to fulfill that purpose; faithfulness is only one of the possible purposes to be fulfilled.
“In an ideal case, the client (i.e. the initiator) would give as many details as possible about the purpose, explaining the addresses, time, place, occasion and medium of the intended communication and the function the text is intended to have. This information would constitute an explicit translation brief.” 173-174. In the translation process, the translator first act as receiver of both the translation brief (the initiator’s translation instructions) and the source text (is usually part of the brief). And then the translator produces a target text that they regard as purpose in the sense that the demands of the translation brief. In a word, the process focuses on the target text, and it is reader-oriented, thus it leaves more space for translator’s creative work.
4.2.2 Case Studies of International Business Contract Translation
The ultimate purpose of a contract is to persuade its clients to sign the contract. However, due to the barriers of language and culture, the source text, when translated, may be misunderstood by the target audience in some cases. Then according to the framework of Skopos Theory, translation is not merely a process of transcoding but involves many factors, such as original author, initiator who has commissioned the translation assignment, target text receiver, source language culture, target language social norm, etc. The mentioned factors may influence the translator’s choices of translation strategies. Thus Vermeer’s idea is to be in accordance with the contract translation process. The contract translator can flexibly adopt different translating strategies to achieve his target under the guidance of Skopos the
ory.
The following part is some practical examples that are easily mistranslated in daily life. The analysis includes several kinds of translation strategies for contract translation from the aspects of Chinese to English and English to Chinese translation in the guidance of Skopostheorie.
4.2.2.1 Chinese to English Translation
According to the above analysis, target-language-culture oriented strategy should be considered as the basic strategy of international business contract translation. The Skopos theory holds the idea that translators must take the target readers’ expectation into consideration. Under the guidance of this theory, the strategies of omission, conversion, and combination, etc. are basic techniques in translating international business contract. These strategies that can be called as “free transfer” try to convey the meaning and spirit of the original text even though it may require quite a lot of changes in linguistic properties of the original text.
1) Omission is a part of the translating techniques in which some parts of the original text can be omitted in accordance with the target readers’ description. An indispensable element in one language may be a superfluous one in the other so that omission enables us to omit redundant part of the original.
Example: 本工程建设方应落实与管理、资金有关的法律法规，并接受有关行政部门的监督和检查。
Translation: The party undertaking the responsibility of constructing the project shall comply with the laws and regulations on management and capital，and accept the supervision and inspection of competent authorities．
The word “有关” is widely used in a Chinese contract. In the above example, it appears twice. But it is unnecessary to literally translate all of them to “relevant” or “related”. Since the plural form “laws and regulations” conveys the original text clearly, it is appropriate to employ the strategy of omission here. “Competent authorities” in English means related authorized organization which performs a legal power of the officers. Therefore, the method of omission is applied again.
2) Negation is one of the techniques frequently used in translating the international business contract. The purpose of negation is to meet the target readers’ reading and writing habits.
Example: 由于地震、台风、水灾、火灾、战争以及其他不能预见并且对其发生和后果不能防止或避免的不可抗力事故，直接影响合同的履行或不能按约定的条件履行时，遇有上述不可抗力的一方，应立即将事故情况电报通知对方，并应在15天内提供事故详情和合同不能履行，或部分不能履行，或需要延期履行的理由的有效证明文件，此项证明文件应由事故发生地区地公证机关出具。
Translation: Should either of the parties to the contract be prevented from executing the contract by force majeure, such as earthquake, typhoon, flood, fire and war and other unforeseen events, and their happening and consequences are unpreventable and unavoidable, the prevented party shall notify the other party by cable without any delay, and within 15(fifteen) days thereafter provide the detailed information of the events and valid document for evidences issued by the relevant public notary organization for explaining the reason of its inability to execute or delay the execution of all or part of the Contract[24]38.
In the source text, there are negative words such as “不能”, “不可抗力”, etc. However the corresponding negative English words like “not”, “no” and “never” or “un-” are not used in the target text. Instead, the translator uses the affirmative form “force majeure” for “不可抗力”, and “prevent from” for “不能（履行）”. These dictions are very familiar to English readers and will surely have a better effect on readers’ understanding than their negative counterparts.
In this example, it shows that some Chinese expressions with negative meaning can be translated into expressions in positive forms in English. Negation expressions can not only preserve the correctness of the target text, but also make it smooth and suitable for the expression style of English.
3) There are two situations about combination skill. One is to combine some components of a sentence into one, and the other is to combine two or more sentences into one. Look at the following example for further information.
Example: 这份合同由购买方和销售方协议签订，双方按照合同的条款规定同意出售和购买合同中的产品。
Translation: “This contract is made by and between the Buyers and the Sellers, whereby the Buyers agree to buy and the Sellers agree to sell the under mentioned commodity in accordance with the terms and conditions stipulated below.” [25]
In the sentence, the use of “by and between” is an effective way to avoid redundancy in translation, which is a shortened form of “by the buyers and sellers and betw
een the buyers and sellers”. Evidently, the coordinate words “by and between” make the contract more precise, meaning the contracting parties who participate the whole activities of negotiation and finally sign the contract are “the Buyers and the Sellers”, not any third party. The meaning of the coordinate words is unique without any divergence.
4.2.2.2 English to Chinese Translation
Under the guidance of Skopostheory, and the diction characteristics analyzed in Chapter 3, specific techniques such as splitting, choosing right meaning in context and adaptation are employed in the following examples.
1) Splitting means taking certain elements out of a sentence and treating them separately in translation.
Example: The seller shall not be responsible for delay in shipment or non-delivery of the goods due to Force Majeure, which has occurred during the manufacturing process or in the course of loading or in transit.
Translation: 因在生产、装运或运输过程中发生的不可抗力事件，卖方对迟交货或未交货不负责任[8]346。
Sentence splitting is justified in this case, since such transformation enhances clarity and readability. When an attributive clause is lengthy and complicated, a reversed rendition may sound verbose. Sentence splitting is used here to place an adverbial clause after the main clause to conform to the Chinese usage.
2) Chinese, as well as English do, enjoys high frequency of synonymous words. Its meaning varies as its context varies; it differs in different situation. So, we have to choose the correct words in accordance with the special context, such as “正式合同”for “formal contract”; “正式批准”for “official approval”, and “正式签署”for “duly sign”. We render different words to translate the same Chinese meaning “正式”. This can be shown more clearly in the following examples.
Example: The invoice shall be subject to the usual trade discounts allowed by the Consignor.
Translation: 发票须按照发货人所给予的通常批发折扣开立。
Example: The buyer shall lodge a 90-day note in Bank of China, Taiyuan Branch for discount.
Translation: 买方将把一张90天的期票教中国银行太原分行贴现。[8]304-305
The word “discount” in these two sentences, but it has different meanings. The first “discount” means “折扣”( amount of money taken off the cost of sth), a common word in trade; while the second “discount” means “贴现”(the amount of money deducted from the face value of a note), a common word used in banking field.
3) In the Skopostheorie’s terms, the adaptation is referred to as the adjustment of the source text to target-culture standards, and it is a procedure that is part of daily routine of every professional translator. In a word, adaptation means great changes which can be made to the source text deliberately in terms of the form and content. As we all know, a contract is a legal document. It is necessary to make clear the legal context when dealing with cultural factors such as law. Legal terms, as discussed in the above chapter, are a major characteristic of international business contract. We need to know which law governs the contract before translation in order to avoid the misunderstanding of the exact meanings of the legal terms. Let’s cite an example here.
Example: Damages for breach of contract by one party consist of a sum equal to loss, including loss of profit, suffered by the other party as a consequence of the breach.
Unacceptable translation: 一方违约所导致的损害包括因其违约而使另一方遭受损失的金额，含利润损失。
Acceptable translation: 一方违约所导致的损害赔偿金包括因其违约而使另一方遭受损失的金额，含利润损失。[26]81-82
In this example, the word “damage” is an important legal term in the contract. According to Merriam Webster of Law, “damage” refers to the money awarded to a party in a civil suit as compensation for the loss or injury for which another is liable, namely, “赔偿损失金” in Chinese. The reason for the distorted version in the example lies in the misunderstanding of the legal term as a common word. In daily English, “damage” is only a common word, meaning to lose or harm resulting from the injury to person, property, or reputation, namely “损失” or “损害” in Chinese. The unacceptable translation above results in vagueness and uncertainty in the Chinese version.
What’s more, to be target-culture-oriented, numbers are of utmost importance in signing a contract. Any carelessness may lead to economical loss. A typical example is that the currency symbols “$” and “£” represent not only “美元” in USA and “英镑” in Britain, but Australian dollar, Canadian dollar, Hong Kong dollar, Cyprus pound, Irish pound, etc. Therefore, the translator should make sure in which co
untry the target contract is used, and translate dictions based on the target culture.
5．Conclusion
The above discussion of the diction characteristics and translation of international business contract is by no means comprehensive but it can serve our purpose to improve international business contract translation practice and better our communication skills. The application of Skopos theory in the international business contract translation is proved to be very instructive. And this paper also probes into its translation strategies and methods in the hope of providing a general guide for international business contract translation. However, due to the limited time and author’s capacities, this thesis is far from completely satisfactory. There is still a lot of work to be done in this field for further study.
Acknowledgements
My initial thanks go to my supervisor Fang Xiaoqing, who patiently supervised my dissertation and was at times very willing to offer me illuminating advice or suggestions. Without her help, I could not have finished this dissertation.
I am also indebted to other teachers, my classmates and my friends who have not only offered me their warm encouragements but also shared with me their ideas and books which broaden my vision.
I also would like to extend my heartfelt thanks to my beloved family who keep encouraging me all these years.
The remaining weakness and possible errors of the dissertation are entirely my own.
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[26] 陈建平. 经贸合同英语的语言特征及其翻译[J]. 中国翻译 第26卷 2005(4).
诚 信 承 诺
我谨在此承诺：本人所写的毕业论文《国际商务合同的用词特点及翻译》均系本人独立完成，没有抄袭行为，凡涉及其他作者的观点和材料，均作了注释，若有不实，后果由本人承担。
承诺人（签名）：强多金
2010 年 6 月 10 日
