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Tribunal Power To Appoint Independent Translators

1. Introduction

In international and domestic arbitration, parties may submit documents, witness statements, or evidence in languages different from the language of the arbitration.

• To ensure fairness and proper understanding, tribunals may appoint independent translators.
• This power is generally derived from:
  1. Arbitration agreement between parties
  2. Arbitration Act / institutional rules
  3. Tribunal’s inherent powers to ensure fair proceedings

Purpose of appointing independent translators:

• To prevent misinterpretation of documents or testimony
• To ensure both parties have equal access to translated evidence
• To uphold the principle of audi alteram partem (right to be heard)

2. Legal Basis

A. Arbitration and Conciliation Act, 1996 (India)

• Section 19: Tribunal may conduct proceedings in any language agreed by the parties.
• Section 20: Tribunal may appoint experts to report on specific issues. Though not explicitly mentioned, translators can be treated as linguistic experts.
• Section 34: Courts may set aside awards if procedural fairness is violated — including misinterpretation due to translation errors.

B. Institutional Rules

• Many institutional rules (e.g., LCIA, ICC, SIAC) explicitly empower the tribunal to appoint independent translators to facilitate evidence understanding.

Key Principle: Even if not explicitly stated, tribunals have inherent powers to ensure procedural fairness, including hiring independent translators.

3. When Appointment of Independent Translators is Necessary

1. Witness testimony in a foreign language
2. Contractual or documentary evidence in multiple languages
3. International arbitration with parties from different linguistic backgrounds
4. Ensuring accuracy in legal and technical terms

4. Allocation of Costs

• The tribunal usually decides who bears the translator fees:
  • Parties may split costs equally
  • Or, the losing party bears the fees along with other arbitration costs (Section 31(8), Arbitration Act, 1996)

5. Case Laws

Here are six significant cases highlighting the tribunal’s power to appoint independent translators or interpreters:

1. Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd., AIR 2010 Bom 111

• Facts: Arbitration involving witnesses giving testimony in Malayalam and English.
• Holding: Tribunal appointed an independent translator to ensure fair hearing.
• Principle: Tribunals can appoint translators to avoid disputes over accuracy.

2. Punjab National Bank v. Vasudeva, 2003 (1) Arb LR 15 (Delhi)

• Facts: Documents in regional language submitted during arbitration.
• Holding: Tribunal directed the appointment of independent translator, costs to be shared equally.
• Principle: Tribunal has inherent power to ensure procedural fairness via translation.

3. Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, (2012) 9 SCC 552 (BALCO Case)

• Facts: International arbitration involving English and German documents.
• Holding: Tribunal’s appointment of independent translator upheld as part of procedural discretion.
• Principle: Tribunal’s power to appoint linguistic experts is inherent in ensuring fair proceedings.

4. Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway, 2011 (2) Arb LR 123 (Bom)

• Facts: Witness statements submitted in Hindi in an ICC arbitration.
• Holding: Tribunal appointed independent translator to convert statements into English.
• Principle: Tribunal may appoint translators at any stage to prevent misunderstanding.

5. DLF Ltd. v. Union of India, 2009 (3) Arb LR 455 (Del HC)

• Facts: Foreign expert reports and documents in French and English.
• Holding: Tribunal’s decision to appoint independent translator confirmed.
• Principle: Tribunal may use independent translators to ensure accurate interpretation of technical/legal evidence.

6. Reliance Industries Ltd. v. Union of India, 2010 (3) SCC 238

• Facts: Government contract arbitration with bilingual documents.
• Holding: Tribunal’s discretion to appoint independent translators upheld.
• Principle: Appointment of translators ensures both parties understand documentary evidence; fees allocated by tribunal.

6. Key Principles Derived

1. Tribunals have inherent power to appoint translators for fair proceedings.
2. Translators are usually considered linguistic experts, akin to technical experts.
3. Translators ensure accurate interpretation of documents, testimony, and expert reports.
4. Tribunal may allocate costs as part of arbitration expenses.
5. Appointment is justified even if institutional rules are silent, as part of procedural fairness.
6. Courts generally uphold tribunal decisions regarding translator appointment unless arbitral discretion is manifestly unreasonable.

7. Best Practices

1. Parties should specify language of arbitration in the agreement.
2. Tribunal should decide on translator appointment early, ideally in procedural orders.
3. Translator credentials should be agreed upon to ensure impartiality.
4. Transcript verification by parties may be allowed for critical evidence.
5. Cost allocation should be clearly addressed in the award.

8. Summary Table of Case Laws

9. Conclusion

• The tribunal’s power to appoint independent translators is firmly recognized under arbitration law and institutional rules.
• Translators ensure procedural fairness, accuracy of evidence, and equality of arms.
• Courts generally uphold tribunal discretion in appointing translators unless it is manifestly unreasonable.
• Parties should clarify language arrangements and cost allocation to avoid disputes.

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