Reviewing a translated definition in a Dutch university’s employment conditions
Many drafted clauses translated from Dutch to English retain their original Dutchness. When it comes to drafted text, lawyers and translators are sometimes reluctant to stray too far from the original Dutch wording. Also, some of these clauses are simply difficult to understand—despite the great care no doubt taken by the lawyer and translator involved.
Let me give you an example. I’ve taken this example clause (quite randomly) from a Dutch university’s online set of employment conditions. The chapter is entitled “Reorganisations”, so the first clause explains what is meant by “reorganisation” in the chapter.
Onder reorganisatie bij een universiteit of een onderdeel daarvan wordt verstaan een verandering in de organisatie, zoals bedoeld in artikel 25 eerste lid, onderdeel a tot en met f, van de Wet op de ondernemingsraden, die betrekking heeft op de universiteit, of op een belangrijk onderdeel daarvan, met directe en ingrijpende rechtspositionele gevolgen voor werknemers.
Reorganisation within a university, or a part thereof, is understood to mean a change in the organisation as referred to in Article 25, paragraph 1, sections a to f inclusive of the Works Councils Act, which relates to the university, or an important part thereof inclusive, involving direct and radical consequences for the legal status of employees.
Something went wrong here
Most of this is understandable, but it is not clear and well written. Something went wrong with the drafting of the Dutch text or its translation into English, or perhaps both. I counted 14 separate problems with this short English text, including overly literal translation, unnecessary and confusing repetition, the inclusion of unnecessary wording, lack of clarity, unclear references, the failure to apply English conventions, poor and incorrect word choices, and so on.
I won’t describe the various problems in this post, but I would like to focus on two points in particular: first, the importance of using parallelism and text bites in well-written English text; second, the translation difficulties that arose from two Dutch legal terms in this text.
Use parallelism to make the clause easier to read
This clause could easily and more clearly be structured as three parallel participial clauses modifying the word “change”. Once the parallelism is identified, everything else falls into place. The syntax problems are washed away by the simplicity of the parallelism. This clause (like most drafted clauses) should have been drafted from the start in what Peter Butt calls “text bites” rather than “text blocks”. Good drafting (in modern English, at least) relies heavily on parallelism and text bites. Look at how parallelism helps to make this clause clearer:
In this chapter, “reorganization of a university (or part thereof)” means a change:
(a) referred to in article 25(1) to (f) inclusive of the Works Council Act;
(b) occurring to the entire university or an important part of it; and
(c) having a direct and far-reaching consequence for the employment and employment conditions of two or more employees.
You’ll notice that this English clause is no longer quite the same as the Dutch clause. There are times when a translation of drafted text must be as literal as possible; however, there are also occasions when the clarity and the quality of the English drafted text are what matter. If you think I’ve missed or changed something, feel free to let me know.
Pay particular attention to expressing difficult Dutch legal terms clearly in English
From a terminology perspective, the difficult terms in this clause are ondernemingsraad and rechtspositioneel.
Translated literally, an ondernemingsraad is “company council”, “enterprise board” or something similar. Perhaps one could use a more helpful descriptive translation like “employees’ council” or “board of employees”.
However, the conventional English translation of ondernemingsraad in the Netherlands (and the rest of Europe) is “works council”. It would be interesting to find out how and why this British phrase became so strongly rooted in Europe as a translation, and why it has survived when the term is no longer apparently used in the UK itself.
At this point, however, allow me just to point out that this is an example of an English translation that is unhelpful because its meaning is not clear to English speakers. This puts every Dutch lawyer into the position of having to explain to an anglophone at the outset what the English phrase “works council” means. Surely the whole point of using an English translation is to avoid this step. If one has to explain what a “works council” is, why not just use the Dutch word ondernemingsraad?
Like it or not, “works council” is here to stay. This conventional translation would be difficult to change. Once a poor translation becomes rooted and takes on a life of its own, there is no process in place to get everyone in the Netherlands (and the rest of Europe) to abandon it and switch to something else.
This is not a case of a difficult or uncertain translation. Untranslatablity and inconsistency are not the issues here. This is a poor translation that has taken root and cannot be changed. I call this the “Persistence of Poor Translation Phenomenon”.
By the way, an ondernemingsraad has nothing to do with unions. This is a point that will need to be explained to some English speakers.
Literally, the phrase rechtspositionele gevolgen means something like “the consequences for one’s legal position or status”, “relating to legal status or position” (JEL) or more simply “legal consequences”.
In the original clause above, what was meant by this phrase was something like “the consequences for employment and for employment conditions”. I don’t know why a clearer phrase was not used in the Dutch clause. It’s possible the drafter thought that only Dutch employment lawyers would read the clause. I suspect that the use of rechtspositoneel was unnecessary and unclear Dutch legal jargon.
The meaning conveyed by a literal translation of rechtspositioneel in this clause would not be clear to the foreign reader at all. If users of Dutch drafted text are to be non-Dutch-speaking non-lawyers, surely something clearer and more precise is needed? Forcing a foreign reader who is not a lawyer to deal with an overly literal translation of an unclear Dutch legal concept is surely not the best way to operate internationally. After all, the point of text drafted in English is to assist international users to understand their rights and duties, not wonder about them. In this situation, the more explicatory translation may be preferred. Ideally, the original Dutch text would also be clearer.
Of course, lawyers sometimes deliberately prefer vagueness and generality. Fair enough. However, there is no indication that this was the situation here.
Greg Korbee (Originally published in December 2013. Republished in December 2018.)
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