English for Lawyers

Check out the attachment hereto to understand the purpose hereof. Also: don't write like this. Back by popular demand, here's our guide to "here-" words. Don't forget to hit "like" if the guide is useful to you!

If you’re interested in international arbitration, check out the Ontario Court of Appeal’s decision issued yesterday in the Aroma case, which addresses arbitrator bias and disclosure obligations. I wrote a post about it from my personal account (link in the comments ⬇️). The Court uses the phrases “reasonable apprehension of bias” and “justifiable doubts about impartiality” interchangeably. There are some feisty discussions about this linguistic choice in the comments to the original post. Enjoy!

Can you spot the errors in this title? “Limited Powers Despite an Increasing Scrutiny of the Enforcement Judge” I came across an article by a French law firm with a title similar to this today. The authors made a few common errors. Did you notice them? 1️⃣ The first error that jumps out at me is using a direct translation of the French phrase “le juge de….” to refer to a court hearing a type of case. Here, the author probably would have said “le juge de l’exequatur” in French, and so translated this literally to “the enforcement judge”. In French, this expression can refer either to courts hearing this type of matter in general, or to a specific judge hearing a specific case. In English, you can’t use the same expression to convey both meanings. To refer to courts in general, as is the authors’ intention here, “courts hearing enforcement matters” is better. You could also say “judges hearing enforcement matters”, but referring to “courts” generically sounds more natural to me in this context. “Matter” is a generic way to refer to any type of case or court proceeding. If you’re referring to a specific judge in a specific case, say “the judge who heard the enforcement application”. 2️⃣ Along the same lines, the authors used “the” incorrectly, because they were not referring to a specific judge. Unlike in many other languages, the definite article “the” is used to refer to something specific. Here, the French “le juge de l’exequatur” can refer either to judges hearing enforcement matters generally, or a specific one. In contrast, in English, “the judge” means a specific judge. By making it plural and omitting an article, we can convey generality: “courts hearing enforcement matters”. 3️⃣ Scrutiny “of” X means that X is being scrutinized. Scrutiny “by” Y means that Y is doing the scrutinizing. Here, by saying “scrutiny of the judge”, the authors conveyed that the judge was being scrutinized, although they meant that the judge was doing the scrutinizing. In my view, a better title would have been: “Limited Powers Despite Increasing Scrutiny by Courts Hearing Enforcement Applications” See the comments for my thoughts on errors 4 and 5 👇

"Prejudice" is one of those tricky terms that has many different meanings in the legal context. Do you know all of them?

Did you vote in our recent poll about representations and warranties? Here are the results. The question was: Which of the following would be appropriate to include in the “representations and warranties” section of a commercial agreement? 46% of you chose Option 4: 🔹As of the effective date, no claims have been brought by third parties other than those listed in Schedule A. I agree that this is the best answer. A representation is a statement of fact that a party states is true as of a certain date. A warranty is a promise that a certain fact is true. In practice, these terms are often used together, without distinguishing between the representations and the warranties. A representations and warranties provision might begin as follows: “The Seller represents and warrants to the Buyer that: …” And then list a number of facts that the Seller states are true as of a certain date. Option 4 is an example of this. It belongs in the representations and warranties section. Here are my thoughts on the other options: Option 1: 🔹If the Buyer fails to make any payment to the Seller when due, the Buyer’s shareholder shall make the payment. This is a guarantee. The Buyer’s shareholder is the guarantor, the party who has given the guarantee. Option 2: 🔹If the Buyer fails to make any payment to the Seller when due, the Seller may seize any of the Buyer’s assets. This is security. The Seller has taken security over the Buyer’s assets. The Buyer’s assets secure the payment obligation. The assets are collateral. Option 3: 🔹The Seller shall indemnify the Buyer for any amounts the Buyer must pay resulting from third-party claims brought before the agreement’s effective date. This would typically be included in a standalone indemnification provision, though some contract drafters might include it in the representations and warranties provision. So this answer is not wrong, but I think Option 4 is a better answer. For a refresher on how to use the terms “guarantee”, “security”, “collateral, “warranty”and representations and warranties”, check out our posts on these topics. I’ve linked to our prior LinkedIn posts in the comments ⬇️ *** 👩🏻💻Visit our website to see all of our content, sign up for email updates, and learn more about our legal translation and legal document ghostwriting and editing services. The link is on our page, English for Lawyers. And don’t forget to hit “follow” to receive updates on our new content.

Do you know what “collateral” means? Check out our newest carousel to learn two different meanings of this term. And yes, this is yet another possible translation of words that sound like “guarantee” in some languages. 🌟 Bonus: in the comments, I’ve linked to an article from law firm Latham & Watkins entitled “In brief: guarantees and collateral for acquisition financing in USA”. The article uses “guarantee” 30 times, “collateral” 34 times and “security” 62 times. Can you explain the difference between these three terms in this context? *** 👩🏻💻Visit our website to see all of our content, sign up for email updates, and learn more about our legal translation and legal document ghostwriting and editing services. Link in the comments ⬇️

Several of our recent posts focus on the English translations of words that sound like “guarantee” in other languages. These include “warranty”, “security” and “guarantee”. To refresh your memory on these posts, see the links in the comments ⬇️ Test your understanding with this poll: Question: Which of the following would be appropriate to include in the “representations and warranties” section of a commercial agreement? Option 1: 🔹If the Buyer fails to make any payment to the Seller when due, the Buyer’s shareholder shall make the payment. Option 2: 🔹If the Buyer fails to make any payment to the Seller when due, the Seller may seize any of the Buyer’s assets. Option 3: 🔹The Seller shall indemnify the Buyer for any amounts the Buyer must pay resulting from third-party claims brought before the agreement’s effective date. Option 4: 🔹As of the effective date, no claims have been brought by third parties other than those listed in Schedule A.

We recently posted about non-competes and the US Federal Trade Commission’s Non-Compete Rule (link in the comments ⬇). In this hot-off-the-press* decision, a federal court in Texas set aside the Non-Compete Rule. This means that the court annulled the Rule, that the Rule cannot be enforced. In this pdf of the decision, we’ve included a vocabulary guide to help you understand some of the more difficult vocabulary the court used. If you download the pdf, you’ll see blue highlighting, with our explanations inserted as comments (click on the blue highlighting to see the explanation). This decision will certainly be appealed. Stay tuned!** * “Hot of the press” is an idiomatic expression that means a piece of writing that is newly published (when publishing was physical rather than virtual, a newly published document would literally be “hot” when it came off the printing press). In this case, the decision is four days old at the time of writing this post, so it is (figuratively, not literally) hot off the press. Why did we include hyphens in "hot-off-the-press decision" but not in "the post is ... hot off the press"? Because in the first case, it's a compound modifier. See our explanation of this in our comment on "unfair-competition rules" on page 13 of the decision. ** “Stay tuned” has its origins in radio and television broadcasting. Literally, it means “stay tuned in to the broadcast”, in other words, don’t turn off the TV or radio or change to a different channel. Figuratively, as we used it above, it means continue reading our posts (to see updates about this topic). Do you have any other questions about the case? Post them in the comments below ⬇

Continuing our series about the English translation of terms that sound like "guarantee" in many other languages, this post is about "warranty". In the attached guide, we explain the phrases "representations and warranties" (nouns) and "represents and warrants" (verbs) used in many contracts. Our last poll was a fill-in-the-blank: "In the agreement, the seller gave a representation and (a) ____ that all breach of (b) ____ claims had been disclosed in the schedules." The possible answers were: 1. (a) warranty; (b) warranty 2. (a) guarantee; (b) guarantee 3. (a) warranty; (b) guarantee 4. (a) guarantee; (b) warranty The best answer is #1, though #3 is also correct. So: "In the agreement, the seller gave a representation and warranty that all breach of warranty (or breach of guarantee) claims had been disclosed in the schedules." You will come across the phrases "representations and warranties" or "represents and warrants" in many contracts. The attached guide explains how to use these phrases. "Warranty" also means a binding legal document that sets out what will happen if a product or service is defective. For example, a product warranty often states that the manufacturer will repair the product, provide a new one, or give the customer a refund. A claim under a warranty is a "breach of warranty" claim. This type of document is also sometimes called a "guarantee", so answer # 3 is also correct. In the comments, I've linked to our recent post on the term "guarantee", which also explains "security" and "warranty" ⬇. #legalenglish

Are you interested in international arbitration, or in reading court decisions from around the world translated into English? We are excited to announce the launch of Arbitration in Translation. As you may know, our founder, Myriam Seers, is an international disputes lawyer. She noticed that many countries whose working language is not English render interesting decisions related to international arbitration, but those decisions are not accessible to lawyers from other parts of the world who do not speak the relevant language. Since English is the current world lingua franca — the language that most lawyers around the world have in common (that’s why you’re following this page and reading this in English) — we had the idea of translating key decisions into English so that they may be more accessible to the international arbitration community. So far, we have translated decisions from France, and are working on others from Switzerland, Spain, Colombia, Brazil and Italy. More to come! If you’re interested, follow Arbitration in Translation and check out our website, arbitrationintranslation[.]com.