Basil Markesinis obituaries

Sir Basil Markesinis died on 23 April 2023. There was an obituary in The Times today and in the Daily Telegraph two weeks ago. Telegraph:

The multilingual, cosmopolitan son of a former prime minister of Greece, Markesinis held, successively, the chairs of European Law and then Comparative Law at the University of Oxford, where he founded the Oxford Institute of European and Comparative Law.

Moving to London as Professor of Common and Civil Law at University College (UCL), he established the Institute of Global Law (“exceeded only by galactic”, observed one wag), holding the position simultaneously with a part-time chair at the University of Texas at Austin, where a legal colleague was quoted as describing him as “one active b—-r and as wise as a tree full of owls”.

It was quite an exciting read. If you have access to the Times or the Telegraph, you can see a photo of him wearing red trousers.  I only knew his comparative-law books on The German Law of Contract and The German Law of Torts, both several times revised and updated. I used them a lot but I regret I have never found time to read them at length. But I have long been looking forward to doing so.

Just last week the ITI German Reading Group was reading the novel “Corpus Delicti” by Juli Zeh, who under her real name is an honorary judge (proposed by the SPD) in the constitutional court of Brandenburg. I didn’t think the legal vocabulary in this science fiction novel would be a big problem for translators, but I noticed the term überholende Kausalität and wondered how I would translate it, if it were essential to the plot or to a legal text. And so I looked at Markesinis on the German law of torts. He refers to overtaking causes. An example is a medical practitioner who blinds a patient who would have subsequently become blind in any case. He queries whether overtaking is the less appropriate adjective than overtaken, which is something I was trying to get my own head around.

At all events, those two books are a really full and useful read, with plenty of references to German sources.

Twenty years of Transblawg

I remembered that this blog started on 15 April 2003 so it is now over twenty years old.

First post, 15.04.2003

But looking older. There were other translation blogs and legal blogs (blawgs) at that time, although I think even then blogging was a bit old hat. When I was teaching legal translation at the IFA in Erlangen (which is 75 years old this year), I made my own material and I used to answer other translators’ questions on legal translation in a number of forums. In those days, people were not shy to show their ignorance online, as I think advertising one’s expertise on the internet was a newish thing. I certainly built my business on internet contacts, some of which even preceded the WWW and were made in Unix. I remember the noise of my first modem connection in the mid-90s with excitement.Today I follow a lot of blogs through Feedly, but really there is so much else to read online that I don’t usually feel like researching the background to new items. This blog is almost dead. But I do think it was a good idea to take a narrow focus, on legal translation rather than all kinds of translation.

What is on my radar today?

1. The German Federal Ministry of Justice has published a draft bill to introduce English-language commercial courts in Germany.

I’ve blogged on this issue on and off since 2010.

A number of Länder have introduced English-language courts, but this is the first federal initiative I can remember.

One problem with the bill is that appeal to the Federal Court of Justice (Bundesgerichtshof) is always to be possible, and that court may decide either in English or in German. This is unlikely to be attractive to international parties. Decisions at all levels are to be translated into and published in German.

I’d just like to say something about the ability of German judges to speak English. I recall hearing that some judges think their English is very good or are married to native speakers of English, and being very keen to be involved in an English-language case, possibly for reasons of prestige. In the only case I have heard a detailed report of (by a translator colleague who sat in on it), none of the lawyers or parties were native speakers of English, and they weren’t all Germans either.

At the end of a post in February 2014, I mentioned a case where the court was talking about the term Grundurteil in English. They decided to use the German word, a good idea. It does seem very strange for non-native speakers who have a good understanding of German law to talk in a foreign language about something intrinsically German.

It was a good idea to keep the German term, and I don’t think every judge in that position would have decided to do that. It’s part of the kind of technique that experienced translators and interpreters develop. Another part of that is deciding whether Dietl’s English version is good. (I always prefer Romain, but that doesn’t solve every problem). I got the impression that the judges did not have a critical approach to bilingual dictionaries. You don’t have to be a professional or particularly qualified translator to know these things, but it might help if someone in court does not just “speak good English”, whatever that means.

2. Here (again) is one of my photos of Dominic Raab, the second time and hopefully last that he was Lord Chancellor. October 2021.

Machine translation and legal translation

Every time I think I might write about this it seems a drop in the ocean, but then the topic comes up again. Machine translation has become very much better since it was first based on neural networks. In fact, I thought we had departed from rule-based MT and arrived at statistical MT, but we are now on neural MT, excuse my ignorance.

In my experience of using DeepL and DeepL Pro and Google Translate a few times, these systems are very good but not 100% reliable. Which means that sometimes a negative sentence may be rendered as a positive. I have no experience of revising MT output or preparing texts for MT.

But what strikes me specifically about legal texts is that when I put a German text through DeepL, the standard or ‘official’ translations of court names and statute titles are missing, although in Linguee they are present. In the old days, a law firm wanting to use rule-based MT was able to adapt its MT system by filling it with the standard translations into English. Now it is not so, and I would spend a lot of time revising the versions.

This was remarked on in a short article in MDÜ 6/2019 by hans Christian von Steuber. He refers to a talk by Patrick Mustu “Was DeepL & Co. im Zeitalter von 4.0 (noch) nicht können”:

Ein Beispiel aus eminer Erfahrung: Die beliebte “Datenschutzgrundverordnung” wird als “basis data protection regulation” übersetzt, “DSGVO” überhaupt nicht”.

This is the GDPR. It’s always surprising when this is not recognized. And when the translation of a statute title varies within one text.

Another reference was mentioned by colleagues this week. The Swiss Federal Chancellery (Bundeskanzlei) was going to buy licences for 2000 DeepL users in 2019 (UEPO December 2018) and had a review of the effectiveness done (PDF Bericht DeepL-Test). Here an example:

Original text: loi fédérale sur les prestations
de sécurité privées fournies à
l’étranger (LPSP)

DeepL translation: Federal Law on Private Security
Services Abroad (LPSP)

Post-edited text: Federal Act on Private Security
Services Provided Abroad
(PSSA)

I always wonder when I see English versions of abbreviations of statute names recommended. Leaving it in German is odd and so is creating an English version such as PSSA (obviously the work of a human post-editor).

That’s all I have to say about MT and legal translation, but the Swiss test contains a classification of MT problems.

Goodbye to Palandt

Bye-bye, Palandt! – post at the Dispute Resolution Germany blog, on July 27th:

C.H. Beck, Germany’s leading legal publisher, today announced that several of its publications will finally be renamed in light of the Nazi past of the jurists whose names they currently bear. All of these publications are household names for law students and practitioners alike.

The campaign for these names to be changed was pretty much a niche thing for many years and gained traction and public visibility only fairly recently.

I didn’t realize that Palandt was a member of the Nazi party. According to German Wikipedia, Beck Verlag chose him as the editor (of the BGB commentary) at short notice in 1938. Palandt (1877-1951) wrote the foreword and introduction until the tenth edition in 1952. In 1945 he removed the pro-Nazi bits. He was allegedly not responsible for the overall editing.

I haven’t got a Palandt at the moment, but I have sometimes bought reduced-price older editions in Germany and found them very useful, but not predictably frequently. Probably there are ways of consulting it online – it was never very easy as a full-time freelance translator to go to a library to consult it, as time was scarce.

After much criticism, Beck Verlag has eventually decided to change the name from Palandt to Grüneberg. The same fate befalls Maunz, Schönfelder (killed in Italy in 1944) and Blümich (I don’t think I’ve encountered Blümich).

Arbeitszeugnis and translation

Note: this weblog now redirects to transblawg.co.uk. The old address will stop working before Brexit, so please change details in your address list.

I have written about Arbeitszeugnis/reference here before: Translating references/Übersetzung von Arbeitszeugnissen and Zur vollsten Zufriedenheit: voll verwirrend für Übersetzer. There is probably enough there.

But I have just attended two out of three webinars on German employment law run by the BDÜ and presented by Christin Dallmann, and she spoke at some length about Arbeitszeugnisse, assuming that we are often asked to translate them.

When I was in Germany, I was asked a few times but always refused. It depends what kinds of clients you work for, of course. As Frau Dallmann said, one could translate one literally and add a footnote explaining that German references, to which an employee has a legal right, are written in a secret language, at least the type called qualifiziertes Arbeitszeugnis rather than einfaches Arbeitszeugnis are.

I now understand even more about the secret language than I did before. The secret language has been confirmed and developed by the courts. They have four elements: employer’s satisfaction (Zufriedenheitsfaktor), time (Zeitfaktor), conduct (Verhaltensbeurteilung) and conclusion (Beendigungsformel). So even the last sentence may imply more than the surface indicates: whether the employee was dismissed, or whether the decision to leave was amicable.

Here’s a question on Toytown Germany from a Canadian who wants to understand his surprisingly positive-sounding Arbeitszeugnis – we never find out if it turned out to be negative.

And here is a good description of German references at Squire Patton Boggs.

Zeugnisfabrik apparently translate references in both directions. But the suggestion of converting an English reference into a German Arbeitszeugnis seems highly dubious and possibly illegal to me:

Accordingly, German Arbeitszeugnisse have to adhere to certain form specifications and the language in which they are written has developed peculiar characteristics that need to be skillfully balanced to ensure that all legal requirements are met.

As a consequence, the translation of a reference letter into an Arbeitszeugnis will always necessitate professional knowledge not only of both languages, but of German legal requirements, as well.

Kurzarbeit/furlough

In this time of lockdown, the question has arisen as to how to reduce employees’ hours and pay them less. I’m jjust going to touch on the terminology here – anyone who wants to know more can do a websearch nowadays!

There has been some comment in the UK press about the German system of Kurzarbeit (short-time work). From the Financial Times:

Kurzarbeit: a German export most of Europe wants to buy

Please use the sharing tools found via the share button at the top or side of articles. Copying articles to share with others is a breach of FT.comT&Cs and Copyright Policy. Email licensing@ft.com to buy additional rights. Subscribers may share up to 10 or 20 articles per month using the gift article service. More information can be found here
https://www.ft.com/content/927794b2-6b70-11ea-89df-41bea055720b

The tool is Kurzarbeit, or shorter work-time, a policy that has been copied by so many other countries that one economist called it one of Germany’s “most successful exports”. Under the scheme, companies hit by a downturn can send their workers home, or radically reduce their hours, and the state will replace a large part of their lost income.

The UK has now introduced a similar scheme. It allows works to be furloughed but kept on the payroll. I knew furlough only as leave for soldiers, but apparently it is used in the USA in this sense. Furlough is like garden leave, where an employee’s contract is terminated to a certain date and he or she continues to be on the payroll but may not work. It’s referred to as the coronavirus job retention scheme. A lot of law firm websites explain it, for instance Crossland Employment Solicitors.

A number of other countries use similar schemes, but I think Germany was the first. The FT thinks it works very well in a country like Germany which invests a lot in apprenticeships, so having trained their workers, they will not want to lose them. The German scheme was ramped up at the beginning of the coronavirus crisis.

In the USA, works who are furloughed are not likely to be paid 60% of their wages as in Germany, but they may retain health insurance and other benefits.

Some more vocabulary I have picked up recently from German daily coronavirus podcasts: der Impfling for the person being vaccinated, verimpfen to inject a substance.

A tweet from Scott Hanson @papascott:

The line grew to 5 people behind us, 2 of whom left when they learned there was no asparagus. 😂

Elsewhere I note that it took the virus crisis to make Germans give up cash.

GDPR: must I remove names from the doorbell?


 It has been a while since I posted a  doorbell photo, but this is a topical subject. There‘s a rumour in Germany that the GDPR (German DSGVO) prohibits revealing people‘s names on their doorbells.


In fact there has been a case in Vienna  where a property management company has been advised by a city data privacy agency and intends to replace the names by numbers on 220,000 apartments.

Kausalgeschäft – the abstraction principle

Although we know about the abstraction principle in German contract law, we don’t often have to translate it.

Here is Markesinis on the principle:

We now come to what is one of the most intriguing peculiarities of German contract law. Indeed, Zweigert and Kötz, in their treatise, An Introduction to Comparative Law, p. 71, regard it as so distinctive as to argue that it gives the German legal system its characteristic style. … Many common lawyers, and indeed French lawyers,might be tempted to describe it more than just ‘distinctive’. ‘Un-necessary’ and ‘excessively abstract’ are words that have often been used; and not with(out) some justification.

German law notionally distinguishes between the legal transaction that creates the relationship of obligation (Verpflichtungsgeschäft) from (sic) the legal transaction which transfers, alters, extinguishes, or encumbers rights (Verfügungsgeschäft = disposition contract). This distinction is accompanied by an important sub-rule: the validity of the second transaction is independent from (sic) the validity of the first.The first tenet is known as the ‘principle of separation’ (Trennungsprinzip), while the second is referred to as the’principle of abstraction’ (Abstraktionsprinzip).

Basil S. Markesinis, Hannes Unberath, Angus Johnston, The German Law of Contract. A Comparative Treatise, 2nd ed. 2006, p. 27

Even the act of buying a newspaper, in German law, consists of two stages: the intention and the reciprocal handing over of paper and money.

The closest idea in English law is found in conveyancing, where the parties exchange contracts to buy/sell and some weeks later the property and payment are exchanged.

In my translation, the situation was that the Kausalgeschäft (= Verpflichtungsgeschäft) underlying a gift of money in return for a promise not to seek further payment was invalid, and so the gift was invalid too.

One way to do this would be to add a translator’s note explaining this peculiarity of German law. I decided to translate Kausalgeschäft as ‘underlying obligation’ and ‘obligational agreement’, adding ‘(a peculiarity of German law)’.

ProZ is often helpful here.  As long as you understand the German legal point, you can see which answers are helpful, just as when trying to find help in Dietl or Romain.

Can legal translators be replaced by machines?

In recent months at least, it seems that machine translation, based on huge databases of sample translations (neural networks), has massively improved. DeepL is one example. Professional translators would avoid using this as their translations might be integrated into the system, which would be a breach of their client confidentiality. But I do suspect that any law firm processing a huge pile of exhibits in a foreign language and wondering which pages would be worth translating can have the whole lot rapidly machine-translated, then zoom in on the most relevant bits and have them machine-translated.

Peter Winslow, a legal translator with a penchant for Karl Kraus, has posted in a Beck Verlag forum three translations of a sentence, two of which are machine translators and the third by a human translator with to me dubious qualifications:

Nur eine der nachstehenden Übersetzungen ins Deutsche wurde von einem menschlichen Übersetzer angefertigt, die anderen zwei stammen von maschinellen Übersetzungssystemen (vor mindestens sechs Monaten). … Erkennen Sie, welche Übersetzung der menschliche Übersetzer angefertigt hat? Der Mensch ist Deutscher und deutscher Muttersprachler. Er ist Diplom-Übersetzer – sogar für die englische Sprache allgemein beeidigt und öffentlich bestellt – und gibt an, mehr als fünf Jahre Berufserfahrung als freiberuflicher Übersetzer zu haben.

Presumably most readers of this quiz will be German lawyers, and of course they will ask themselves how to know whether a translator can be relied on. It isn’t easy. Someone who has studied translation at a German university will probably have learnt little about legal translation, although you may need to show legal knowledge to be qualified to translate for the courts. It would be better to find a translator with specific legal experience or qualifications, and experience in doing legal translations. But I think one problem is that lawyers specialize, whereas legal translators tend to specialize only in law, not in a narrow area of law. They may have years of experience in a particular area of legal translation, or they may not. I hope most big law firms that do a lot of international work will have inhouse translation teams including trained translators, who will know how to evaluate any software systems used for translation. With smaller firms it is less likely.

The sentence taken as an example is “This policy defines the specific server roles required to implement the server program.” This sentence is hardly typical of legal translations.

(I am guessing, like Prof. Dr. Müller, that the second version is the native speaker of German – the answer has not yet been revealed).

One problem at the moment seems to be that agencies are using MT and the occasional sentence is quite wrong. They then require “proof-reading” from a freelance, but if only the final product is reviewed, in English for example, the error may not be evident, although the review will be cheaper than if it were compared with the original.

(With thanks to Igor Plotkin for posting this on a mailing list)

Follow-up to ‘Strafbefehle must be translated’

In a recent post Strafbefehle must be translated I linked to the CJEU case on the subject. At that time, only the Advocate General’s opinion was available in English, but now I’ve called up a bilingual version of the judgment.

I’m treating the German as the original version and only commenting on any elements which may be German rather than EU.

Thus the term Strafbefehl is now penalty order, not penal order
Unfallflucht: failure to stop at the scene of an accident

German law: two sections of the Gerichtsverfassungsgesetz are transllated. There is an ‘official’ translation online in Germany, by Kathleen Müller-Rostin, but this was not used.

CJEU DE
§ 187 des Gerichtsverfassungsgesetzes (GVG) sieht in seinem Abs. 1 vor, dass für einen Beschuldigten, der der deutschen Sprache nicht mächtig ist, ein Dolmetscher oder Übersetzer heranzuziehen ist, soweit dies zur Ausübung seiner strafprozessualen Rechte erforderlich ist.

Official translation (Courts Constitution Act)
The court shall call in an interpreter or a translator for an accused or convicted person who does not have a command of the German language or is hearing impaired or speech impaired, insofar as this is necessary for the exercise of his rights under the law of criminal procedure. The court shall advise the accused in a language he understands that he may to this extent demand that an interpreter or a translator be called in for the entire criminal proceedings free of charge.

CJEU EN
Paragraph 187(1) of the Gerichtsverfassungsgesetz (Law on the Judicial System, ‘the GVG’) provides that, for an accused who does not have a command of the German language, recourse must be had to an interpreter or translator in so far as that is necessary for the exercise of his rights of defence in criminal proceedings.

I note: Law of the Judicial System instead of Courts Constitution Act – I remember that ‘constitution’ though correct confuses some non-native speakers, who think it refers to constitutional law, so there’s an argument for avoiding it. I like judicial system. Judicature Act is sometimes used, and I think that confuses people too. There are so many words beginning with ‘ju-‘ in legal English and they aren’t always understood. (Is that true of ‘judicial’ too?) I would stick to Act rather than Law.
Call in or have recourse to an interpreter – the latter is a bit pompous. ‘That is necessary’ seems a bit less idiomatic than ‘this is necessary’. I don’t know why ‘rights of defence’ is used rather than ‘rights under the law of criminal procedure’.
Section is really widely used, rather than paragraph, in English translation.

CJEU DE
Des Weiteren bestimmt § 187 GVG in seinem Abs. 2, dass zur Ausübung der strafprozessualen Rechte eines Beschuldigten, der der deutschen Sprache nicht mächtig ist, in der Regel die schriftliche Übersetzung von freiheitsentziehenden Anordnungen sowie von Anklageschriften, Strafbefehlen und nicht rechtskräftigen Urteilen erforderlich ist.

Official translation
As a rule, a written translation of custodial orders as well as of bills of indictment, penal orders and non-binding judgments shall be necessary for the exercise of the rights under the law of criminal procedure of an accused who does not have a command of the German language.

CJEU EN
In addition, Paragraph 187(2) of the GVG provides that, as a rule, a written translation of custodial orders as well as of indictments, penalty orders and non-final judgments is necessary for the exercise of the rights of defence of an accused who does not have a command of the German language.

Not much to say here, but one point that is sometimes overlooked and is handled correctly in boht cases here: if this is a summary of the law rather than a quotation, shall is out of place. It is not used to summarize law or contract. It is used within a statute or a contract with intended binding effect, but it is not customary to us it in reporting texts.

The German law continues with the Code of Criminal Procedure. Official translation: Original translation by Brian Duffett and Monika Ebinger
Translation updated by Kathleen Müller-Rostin and Iyamide Mahdi. However, I don’t have any useful comments on this, but here it is since I’ve collated it:

CJEU DE
Nach § 37 Abs. 3 der Strafprozessordnung (StPO) ist bei einem der deutschen Sprache nicht mächtigen Angeklagten nur das „Urteil“ zusammen mit einer Übersetzung in eine dem Angeklagten verständliche Sprache zuzustellen.

Official translation
If a translation of the judgment is to be made available to a participant in the proceedings pursuant to section 187 subsections (1) and (2) of the Courts Constitution Act, the judgment shall be served together with the translation. In such cases service on the other participants in the proceedings shall be effected at the same time as service pursuant to the first sentence.

CJEU EN
Paragraph 37(3) of the Strafprozessordnung (Code of Criminal Procedure, ‘the StPO’) provides that, for an accused without a command of the German language, only the ‘judgment’ (Urteil) must be served, together with its translation into a language the accused understands.

 

I think these further thoughts on DE>EN legal translation are enough for the time being.