Teachings of a Legal Linguist
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Preston Torbert first encountered a foreign language during a trip with his parents to Cuba, where his father did business in the 1950s before Fidel Castro took power.
Today he speaks seven languages: English, Spanish, Portuguese, Italian, Russian, Chinese and Japanese. He has a bachelor’s degree in Russian from Princeton University, a doctorate in Chinese studies from the University of Chicago and a JD from Harvard Law School.
His plan was to become an international diplomat. Instead, he landed at Baker & McKenzie, where he’s spent 35 years advising the world’s largest companies on doing business in China, where he helped open the Firm’s offices in Taipei and Beijing in the 1970s and 1980s.
Along the way, he’s become somewhat of a legal linguist, writing four books for Chinese law students on legal English and teaching a contract writing class at the University of Chicago Law School popularly entitled, “What We Can Learn from the Chinese.”
The books address issues he and his colleagues in the Firm’s China practice have grappled with for years while drafting contracts for US clients investing in China, where each deal needs two versions: one in English for the US client and one in Chinese for the Chinese government’s approval. The challenge is making sure they both say the same thing.
The Chinese, for example, have two different words for the English word, “before.” When you say a contract expires “before January 1” in Chinese, it could include January 1 or not include January 1, depending on which version of “before” you use.
In English, however, it’s clear that January 1 is not included. Therefore, Preston instructs Chinese lawyers to make sure they use the Chinese “before” with that meaning when translating an English contract into Chinese.
“The idea is to give lots and lots of examples of things that could create an issue and solutions for how to deal with them,” Preston says.
In his U of C course, he uses his knowledge of Chinese to help US students draft better English contracts based on problems he’s noticed in English sentence construction. English, for example, uses postmodification, such as “the house behind the store,” whereas Chinese uses premodification: “the behind-the-store house.”
That can create problems in English contracts when it’s unclear which word the phrase is modifying. For example: “Under Chinese law, a subsidiary of a foreign company registered in China is a legal person.”
Does “registered in China” modify subsidiary or does it modify foreign company?
Lawyers could spend hours (and thousands of dollars) arguing that point. To avoid ambiguity, Preston teaches US students to rewrite the sentence more like the Chinese would: Under Chinese law, a Chinese-registered subsidiary of a foreign company is a legal person.
Heady stuff, he admits. But it’s for a good cause.
“If you eliminate ambiguity, you could presumably reduce disputes,” he says.
That is a goal worth pursing, no matter which language you speak.