Admissibility of translations by non-sworn persons from a party’s circle in arbitration proceedings
The Higher Regional Court of Frankfurt am Main, in its decision of 3 August 2022 (Case No.: 26 Sch 19/21), rendered a practice-relevant ruling regarding the translation of witness statements in the context of arbitral proceedings. The subject of dispute was the question of whether it is permissible for a person associated with one of the parties involved in the arbitration, who has not been generally sworn in, to translate a witness’s statement during the arbitration. The decision highlights the flexibility and autonomy of arbitral procedural law regarding procedural design and raises new considerations for parties and their legal representatives.
Arbitration: Autonomy and Fundamental Procedural Principles
Independent Scope for Procedural Design
Procedural autonomy is one of the defining features of arbitration. Parties and arbitral tribunals can determine large parts of the process themselves. This also extends to the selection of translators for witness statements, as long as there are no mandatory statutory provisions or evident conflicts of interest. In its decision, the Higher Regional Court of Frankfurt confirmed that it is not mandatory to resort to generally sworn interpreters for translating witness statements; party-affiliated persons may also be engaged.
Ensuring the Right to Be Heard
Nevertheless, a central tenet of arbitration proceedings remains ensuring the right to be heard. Even with flexible procedural design, it must be guaranteed that all participants are substantially able to comprehend and respond to the essential content of witness statements. In this respect, the Higher Regional Court of Frankfurt emphasized the importance of so-called “procedural fairness.” If there are doubts about the accuracy of the translation or suspicions of improper influence, the arbitral tribunal should consider appropriate measures—such as appointing a neutral interpreter.
Limits of Party Autonomy: No Rigorous Adherence to Court Practice
Distinction from State Court Proceedings
The decision emphasizes that arbitral procedural law deviates from the procedural rules of the German Code of Civil Procedure (ZPO), which are decisive for state court proceedings. Whereas court proceedings mainly rely on publicly appointed and sworn translators, in arbitration this principle can be consciously deviated from. Priority here is given to a solution tailored to the particulars of the case and shaped by the parties. The parties are themselves responsible for ensuring the impartiality and qualification of a translator.
Post-Proceeding Control Mechanisms
The state court, which may become involved after the arbitration has concluded—such as in annulment proceedings—only examines whether fundamental principles, in particular the right to be heard and fair proceedings, were upheld. A comprehensive review of details, such as the selection and appointment of the translator, does not generally take place unless there are serious procedural violations or a recognizable risk of abuse. In its decision, the Higher Regional Court of Frankfurt found no indications of a relevant violation of party rights.
Implications for Arbitral Practice and Participants
Practical Flexibility and Risks
For companies, investors, and high-net-worth individuals who are frequently parties in national or international arbitrations, the decision opens up greater flexibility in conducting proceedings. Persons from the parties’ circle—such as employees or other trusted individuals—may also carry out translations, provided the arbitral tribunal does not see concerns regarding impartiality and accuracy. This can result in both cost and time savings.
On the other hand, it should not be overlooked that too much flexibility may also carry uncertainties. Especially in cross-border matters or particularly contentious party constellations, there are often heightened requirements for transparency and integrity in the conduct of proceedings. For this reason, arbitral tribunals remain obligated to review the framework conditions in light of constitutional principles and international arbitration law.
Further Legal Classification
The decision is currently final; however, it remains to be seen how case law will develop in comparable factual scenarios. It is recommended for parties, when drafting arbitration agreements and in preparing intended proceedings, to explicitly address their preferences regarding translation and interpretation in the procedure, as well as to ensure careful documentation. This can help avoid potential interpretive conflicts after the fact.
Conclusion
The judgment of the Higher Regional Court of Frankfurt am Main underscores the particular independence of arbitral proceedings as compared to state court processes and strengthens the procedural autonomy of the parties. The possibility of engaging party-affiliated persons to translate witness statements can make proceedings more flexible, but also more risky, if the arbitral tribunal does not fulfill its supervisory duties. Ultimately, what remains crucial is ensuring a fair process that is comprehensible for all those involved.
If uncertainties arise in connection with conducting arbitral proceedings—regarding translations, procedural design, or other relevant structures—the Rechtsanwalt at MTR Legal, with comprehensive experience in national and international proceedings, is available for a confidential consultation.
