Legal Translation in Brazil: An EntextualizationApproach

Celina Frade

� Springer Science+Business Media Dordrecht 2014

Abstract Recent trends in academic and professional legal communication

worldwide have promoted significant changes to aim at operating successfully under

current multilingual and multilegal contexts. The aim is to consider a kind of

supranational legal discourse so as to minimize socio-cultural variants and to pro-

mote the pragmatic conditions for harmonized and ‘common sense’ legal practices

without excluding potential reciprocal influences of or resistance to one hegemonic

legal system upon others. In Brazil, the traditional ‘thinking like a civil lawyer’

culture still prevails against a more global approach constraining the consolidation

of the country’s role of major player in most global legal areas. In addition, the key

tool required for achieving some sort of global legal status—Brazilian legal oper-

ators’ proficiency in legal English—has been barely considered in both academic

and professional settings, particularly in legal translation. This study resorts to the

linguistic anthropology concept of ‘entextualization’ (Bauman and Briggs in Ann

Rev Anthropol 19:59–88, 1990 and others) to discuss the process of official (or

sworn) translation in Brazil to render (or not) global legal genres. The comparative

analysis between the original text in English and its official version in English focus

on drafting consistency, the translator’s choice of some formal entextualization

elements used in the process of translation and his/her authority as the entextual-

izing agent to legitimate text.

Keywords Legal translation � Entextualization � Global legal genres �Official (sworn) translators in Brazil

C. Frade (&)

Department of Technologies and Languages, Multidisciplinary Institute, Federal Rural University of

Rio de Janeiro, Rio de Janeiro, Brazil

e-mail: celinafrade@uol.com.br; cfrade@ufrrj.br

123

Int J Semiot Law

DOI 10.1007/s11196-014-9357-x

1 Introduction

In recent years, the effects of globalization have impacted most areas of knowledge

and professional practice worldwide. In the field of academic and professional

communication, for example, significant changes have been evidenced mainly on

curricula and continuing professional education. More particularly, law schools

have been providing students with a vast and innovative range of cross-cultural legal

disciplines and multidisciplinary clinics in English towards blending ‘‘the domestic

and the international with instruction offered from a range of vantages points’’.1 The

aim is to consider a kind of supranational legal discourse for use in global settings

so as to minimize socio-cultural variants and promote the pragmatic conditions for

harmonized and ‘common sense’ legal practices without excluding the possibility of

reciprocal influences of or resistance to one hegemonic legal system upon others.

Likewise, genre analysis has also been influenced by the effects of globalization:

the concern is not much to provide a typology of texts under categories of genres but

rather to account for the transformation of existing genres and the emergence of new

ones in new contexts and new channels of communication ‘‘that are transforming

the roles of senders and receivers of texts in the circulation of culture’’ [28, p. 418].

More recent linguistic approaches have turned to the way genres are produced, used

and interpreted in multicultural and multilingual professional settings and the

strategies and competences to be acquired by global partners in order to avoid

linguistic and socio-cultural constraints. In this context, the emergence of the so-

called global legal genres seems to require interdisciplinary approaches for

investigating the use of legal English beyond its Anglo-Saxon context. As such, the

traditional analytical investigations of ‘context’ and ‘recontextualization’ [8, 15 and

others] no longer seem to cope with the myriad of legal discursive and generic

surrounds which extends from national to global time-spatial scale.

This study resorts to the linguistic anthropology concept of ‘entextualization’ [2]

to discuss the process of official (or sworn) translation in Brazil to render (or not)

global legal genres. As simply put by Bauman and Briggs [2, p. 73], entextualization

is ‘‘the process of rendering discourse extractable, of making a stretch of linguistic

production into a unit—a text [the authors’ italics]—that can be lifted out of its

interactional setting.’’

More recently, translation theory has been developing towards more communi-

cative and pragmatic approaches as far as legal texts and the translator’s role are

concerned [12, 30]. The issue posed here is not to investigate what is translated but

rather to inquire about the translator’s choice in terms of formal elements in the

process of entextualization to render the final product—the English translation—for

global use. We claim that it should not be difficult (or even impossible) to benefit

from social science theories in order to provide and/or improve ‘‘a more acute

understanding of the political dimensions of legal language and, reflexively, of the

texts that analyze legal language’’ [21, p. 448].

1 Harvard School on International Legal Studies, accessed through http://www.law.harvard.edu/ in 2010.

See also curricula offered in this area by major American Law schools such as Harvard, Yale and

Columbia in their respective websites.

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In the first section, I discuss the concept of entextualization as a natural

development of the other ‘text’ family members and its application in the translation

of global legal genre. Next, I briefly review the literature on legal translation and its

status in Brazil and explicit the method and material used for the comparative

analysis. The data under analysis consist of samples of a nationally-enacted contract

in Portuguese and its official translation in English for allegedly global use. By

comparing the samples, I depict the translator’s choice in terms of consistency in the

use of the following formal and generic entextualizing elements: textual organi-

zation and length, defining terms, parallel structures, terms of authority and verb

tense. In what follows, I discuss both the effect of such choice in the process of

translation and the translator’s authority to legitimate the text. To conclude, I point

to further investigation applying the concept of entextualization in other legal

genres and suggest a strategic change in Brazil’s legal education and practice to

cope with the current global legal context.

2 The Concept of Entextualization

Recent linguistic anthropology studies argue that performance studies ‘‘are moving

away from a focus on text and context, as conceived in normative, conventional and

institutional terms’’ to ‘contextualization’ and ‘entextualization’ [2, p. 67]. The shift

is grammatically signaled by adding affixes that ‘‘effectively moves the emphasis

from product to process and from conventional structures to agency’’ [2, p. 67]. For

the purpose of framing our analysis, Table 1 displays some selected definitions of a

‘‘family of loosely interconnected concepts’’ [18, p. 96]:2

Let me elaborate a little more on the concept/process of entextualization and the

role of its agents from the viewpoint of the authors mentioned above. The concept of

entextualization is mostly employed to analyze the process of transformation of

verbal data into a written product such as recounts, public transcripts or ‘‘the official

version of events’’ [24, pp. 485–488] and also ‘‘scriptions’’ as the product of the

process of transcribing [32].

Bauman and Briggs [2] discuss context and its interconnected concepts in

performance-oriented studies in order to provide the framework for conceptualizing

entextualization. The authors claim that the process of entextualization makes ‘‘a

stretch of linguistic production a unit—a text—that can be lifted out of its

interactional setting’’ and can be successively and/or simultaneously decontextu-

alized and recontextualized in alternative contexts setting up a specific interpretive

frame within which a text is to be understood [2, p. 73]. The participants then

‘‘determine what the recontextualized text brings with it from earlier context(s) and

what emergent form, function, and meaning it is given as it is recentered’’ [2,

p. 75].3

2 It is beyond the scope of this paper to address the controversies concerning the definitions and scope of

such concepts in linguistics or linguistic anthropology. For further details, see [2, 6, 21, 22, 25] and Hanks

[18].3 Bauman and Briggs [2, p. 72] use interchangeably the concepts of ‘contextualization’ v. ‘centering’;

‘decontextualization’ v. ‘decentering’ and ‘recontextualization’ v. ‘recentering’.

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123

In line with this approach, Vigouroux [32, p. 616] analyses the ‘‘chain of

entextualizations’’ conceived by co-transcribers in the process of transcription

resulting in a scription through competing and sometimes conflicting temporalities.

She argues that ‘‘the intersection of several temporalities in the construction of the

text gives rise to sometimes different entextualizations’’ [32, p. 624] and that a

‘‘scription also mediates further entextualizations through its own circulation’’ [32,

p. 617]. As to the role of transcribers in the process, she holds that they are indeed

authors of the shaped written text through their particular choices made out of the

elements of entextualization employed.

In a special issue of Text & Talk, Park and Bucholtz [24, p. 485] and others

address entextualization as ‘‘an indispensable mechanism for the construction of

institutional authority [and power]’’. The role of power becomes evident in the

strategies adopted by the ‘‘entextualizing agents’’ for constructing the relationship

between the ‘‘producer of the original discourse and the textual product’’ [24,

p. 486]. In institutional settings, entextualization has to deal with a time–space

distance between the discourse genres and also the ‘‘substantial and intertextual

gaps between the original discourse and the representational text’’ [24, p. 490]. The

mechanisms of interpretation and representation take different forms in particular

acts of textualization such as, for instance, in ‘non-collaborative’ transcripts of

hearings in trials and orthographic choices. In addition, the question posed is also

‘‘how institutions and their agents use entextualizing practices to consolidate their

authority’’ [24, p. 488].

Under anthropological linguistics, Silverstein [28, p. 418] addresses entextual-

ization as the processes underlying ‘‘texts-in-context’’. He also considers the

emergence of new genres ‘‘with local and global influences and reactions thereto’’

and how ‘‘genre textualities’’ are frequently being transformed in new contexts by

Table 1 The ‘text’ family

Context is a frame that surrounds a focal event and ‘‘provides resources for its appropriate

interpretation’’ [14, p. 3]

Contextualization is the ‘‘speakers’ and listeners’ use of verbal and nonverbal signs [contextualization

cues] to relate what is said at any one time and in any one place to knowledge acquired through past

experience, in order to retrieve the presuppositions they must rely on to maintain conversational

involvement and assess what is intended’’ [16, p. 230]

Decontextualization refers to the abstraction of a written test or portion of written text from all of its

contexts, with the assumption that the isolated text, or portion thereof, is an autonomous container of

its own meaning’’ [17, p. 5]

Recontextualization is ‘‘dynamic transfer-and-transformation of something from one discourse/text-

in-context… to another’’ [19, p. 124]

Entextualization is the process:

a) ‘‘of rendering discourse extractable, of making a stretch of linguistic production into a unit—a

text—that can be lifted out of its interactional setting’’ [2, p. 73]

b) ‘‘by which a discourse is lifted out of its original interactional context of production and reception

and is inserted, via successive and/or simultaneous decontextualizations and recontextualizations, in

alternative contexts’’ [32, p. 617]

c) ‘‘by which circulable texts are produced by extracting discourse from its original context and

reifying it as a bounded object’’ [24, p. 485]

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means of new channels of circulation and new modes of ‘‘text-artifactuality’’, such

as video conference, digital storage and the like [28, p. 418].

Formal, functional and generic elements can be employed in the process of

entextualization ‘‘while keeping in mind the crucial task of examining their

interrelations’’ [2, p. 75]. One may include frame analysis, formal devices such as

macro and micro organization of texts, lexico-grammatical features, style, generic

conventions and ‘‘manifest, latent, and performative’’ function and indexical

grounding [2, p. 75]. Other lines of inquiry may also include ‘‘the emergence

structure of the new context, as shaped by the process of recontextualization’’ and

translation [2, pp. 75–76].

Much like transcription, translation is a transformational process performed in

an ongoing tension between the reproducibility and the representativity of the text:

reproducibility is the singularity of the original text while representativity is the

‘‘anticipation of readers’ potential interpretations of the [translated or target] text’’

[32, p. 617]. Translation is an activity which is ‘‘fundamentally prospective, and

this is why interpretative choice is consequential’’ [32, p. 617]. It can be

performed by a single translator or by co-translators, which may create

competition of alternative interpretations during the translation process. Taking

into account the elements of entextualization employed in a translated text enables

us to better understand the expertise required to decontextualize/recontextualize

the transfer of text—original text to translated text—and its ‘‘authoritative

interpretation as text’’ [32, p. 633].

3 Translating Global Legal Genres

Strictly speaking, global legal genres refers to any performative and/or prescriptive

legal texts and oral episodes (such as negotiations and arbitration proceedings)

based upon the unmarked conventions of discourse and interpretable by rules of

interaction that international professional communities conventionally establish as

ways of ‘‘acting together’’ globally [23, p. 163]. In this sense, global legal genres

meet the requirements of the new world order insofar as they serve as a convergent

institutional space or, in Scollon’s [27] terms, a ‘‘site of engagement’’, for the

communication of the real-world interactants’ diverse realities connected by means

of legal English and the (pre)dominant common law culture and practices (Fig. 1).

Examples of global legal genres include legal documents, such as international

contracts, which regulate relationships between public or private parties in different

countries and also ‘‘hybrid texts’’, that is, ‘‘texts produced in a supranational

multicultural discourse community where there is no linguistic neutral ground’’ [31,

pp. 145–146] as, for example, treaties and model laws. Moreover, multilingual

regional or national legal genres can be rendered global status authoritatively or not

when translated to English.

Legal translation has been considered a highly sensitive area in translation

studies due to the complex syntax and peculiar conventions of legal drafting (see

mainly [20]), and the ‘‘profound differences in categories and concepts between

legal systems’’ [12, p. 4]. In addition, there has been a significant change in

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perspective in translation theory as a whole.4 Whereas traditional translation theory

regards legal texts as a special case within the general framework of language for

specific purpose (LSP) produced to preserve ‘‘the letter of the original as much as

possible’’, more recent approaches have shifted to more communicative and

pragmatic factors placing it ‘‘as a communicative and intercultural action’’ [12,

pp. 1–5].

As in Vigoroux’s [32, p. 616] study on transcriptions, legal translation can also

be analysed as a ‘‘chain of embedded practices’’ (viz. reading, decision-making, and

writing) to give shape to a global produced document: the translated version of the

legal document. As both the original and the translated document cannot be

conceived of independently of each other, the ‘‘interpretative process at work is a

two-way process’’ meaning that translation ‘‘presupposes another form, original or

otherwise, which is anterior to it’’. In short, the original legal document is always ‘‘a

post factum construction’’ [32, p. 621].

A further problem lies in the role of the legal translator’s competence and

proficiency to ‘‘mobilize translation competence to perform legal translation tasks in

the legal setting for intercultural and interlingual communicative purposes’’ [3,

p. 39]. As a rule, legal translators should preserve the ‘‘textual symmetry to the

extent possible’’ securing the user ‘‘confidence not literal translations’’ [26, p. 295].

In Garzone’s [12, p. 3] opinion, the complexity of legal writing,

– often bordering on obscurity – not only makes the decoding task more

arduous, but in many cases also requires a real hermeneutic effort on [the legal

translator‘s] part, far beyond the scope of the ordinary decoding and

interpreting required for other kinds of translation. /…/ While legal

professionals like lawyers, judges and jurists are competent in hermeneutics

as part of their essential armoury of skills, it is usually not so for the translator

Fig. 1 Schema of legal global genres

4 For further details, see [3, 12, 13, 26, 30, 31].

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who, in her/his interpreting efforts, is constantly at risk or overstepping the

limits of her/his professional competence.

The combination of the communicative functions of the text—‘‘text function’’—is

crucial so as the text can fulfill ‘‘its concrete situation of production/reception’’ [30,

p. 22]. According to this view,

the initial task of the translator is to compare the (prospective) function-in-

culture of the [target text] TT required by the initiator with the ‘‘function in

culture’’ of the [source text] ST in order to identify those elements which have

to be preserved or adapted in the translation [30, p. 23].

Therefore, adaptation should be part of the translator’s choice of entextualization

elements to meet the demand of the target recipient which may have a different legal

view, ‘‘a different knowledge of the world’’ and a different legal document

experience in the light of the translated text [30, p. 23].

To conclude, research shows that legal translators often operate under such a

complex and ongoing decision-making process regarding decontextualization/

recontextualization. Therefore, the risk of linguistic, legal and pragmatic diversity

may indeed pose a threat to uniform interpretation and viable application of legal

documents for global use.

4 The Status of Legal Translation in Brazil

In Brazil, official (or sworn) legal translation is regulated on both federal and state

level and is also used for ‘commercial interpreting’.5 According to Article 18 and

subsequent sole paragraph of Decree 13609/1943,6

Art. 18—No book, document, or paper of any kind issued in a foreign

language, will have any effect whatsoever at Federal, State, or local agencies,

nor at any level, court or jurisdiction, or entities maintained, controlled or

guided by the public branches of the government, without being accompanied

by its respective translation done in accordance with these rules.

Sole paragraph—These provisions include notaries of all types, which may not

record, issue certificates, nor certified copies that are, in whole or in part,

written in a foreign language.

Thus, any legal document in a foreign language must be translated into Portuguese

to be rendered valid and authoritative in the country. Likewise, informative non-

authoritative texts which require validation in our legal system (such as a graduation

5 Legislative sources related to this matter include Brazilian Code of Civil Procedure 2002 (article 157),

Commercial Code, Decree 13609/1943 (articles 16, 62, 64 and 125); Code of Penal Procedure 1940

(articles 193, 223 and 236) and Code of Labor Law 1943 (article 819). They also rule for commercial

interpreters. Decree in Portuguese accessed through http://www.dnrc.gov.br/Legislacao/decreto/

dec13609.htm.6 Original of the decree in Portuguese accessed through http://www.planalto.gov.br/ccivil_03/decreto/

1930-1949/D13609.htm.

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123

diploma) will only be rendered authoritative after their official translations have

rendered effective.

The translation of foreign legal documents into Portuguese is mostly generated

within the frameworks of hybrid texts (see Sect. 3) and international documents,

either authoritative or not. On the other hand, nationally-enacted legal documents

within the scope of our single legal system are usually prescribed a ‘strict literal’

translation into English, ‘‘indeed bordering on interlinearity’’, gaining the status of a

‘‘parallel text, a gloss or a commentary used as a key to access to the original, which

has not legal validity of its own’’ [12, p. 6].

As a product, any official legal translation is conventionally rendered in a special

format: numbered and registered pages with the symbol of Brazil’s coat of arms,

displaying the translator’s identification, credentials and stamp (Fig. 2).7

Translation fees are provided by state boards of trade as both public translators

and commercial interpreters are classified as ‘commercial activities’ within this

governmental level. Table 2 provides information about fees of sworn translation/

version in three states of Brazil: Minas Gerais, Sao Paulo and Parana. As we can

see, translated legal documents are classified into ordinary texts (passports, identity

cards, etc.) and special texts (scientific, commercial, technical and legal texts, and

others) with their fees varying accordingly. Fees may also vary according to the type

of service provided—translation/version—, and deadlines established by the

client—urgency/extraordinary.8

The process of applying for the job of official public translator is also regulated

by law. The applicant is selected out of a rigorous public contest and, if she/she

passes, they become eligible for translating public documents and/or provide

equally authoritative version of documents in Portuguese into foreign languages.

The same Decree 13609/1943 aforementioned also states the requirements for

public translators as, for example, being a Brazilian citizen, being at minimum 21 of

age and having no criminal records. According to article 5 of the decree, the contest

consists of a written and an oral exam including reading, translation and version

tasks to/from Portuguese—preferably a technical text—and delivering a lecture in a

foreign language as well. Interestingly, there are no requirements as to any specific

higher education degrees or any technical expertise whatsoever on the part of the

applicant.

It is within this institutional context that the data was analysed. It comprises two

representative samples of legal genres: a) a nationally-enacted contract in

Portuguese—Transfer of Rights Agreement—, including the Assignment Agree-

ment (hereafter ‘Original’), settled between Brazil’s largest global oil company—

Petrobras—and the federal government and b) the official translation of the

document into English for global use (hereafter ‘Translation’).9 The relevance of the

selected data can be explained by the impact of the discovery and exploration of

7 Figure 2 is based on original public translators’ credential with fictitious information.8 Accessed through http://www.jucesp.fazenda.sp.gov.br/downloads/04_2008.pdf; http://www.junta

comercial.pr.gov.br/arquivos/File/Tabela_emolumentos.pdf; http://www.jucemg.mg.gov.br/arquivos/is-

re/resolucao-05-2008.pdf; http://www.jucesp.fazenda.sp.gov.br/downloads/04_2008.pdf.9 The contracts are accessed through http://www.petrobras.com.br/ri/ and www.petrobras.com.br/ri/

Download.aspx?id=11210. The translation is registered under n. J11791/1 0 CL/IS 9 by ABPS Traducoes.

C. Frade

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pre-salt areas in Brazil which will most likely result in huge economic gains for our

economy.10

The comparative analysis which follows explores the ‘‘lower-level translation

decisions’’ [12, p. 7] employed by the translator(s) in regard to some formal and

generic elements of entextualization within the framework of consistency.

5 The Process of Entextualization in Legal Translation

5.1 On Consistency

One of the most highly valued principles in legal drafting is consistency: in a well-

drafted legal document, ‘‘the drafter always says the same thing the same way and

different things differently’’ [4, p. 376]. Likewise, the claim is that legal translation

should be consistent: it does not matter what elements of entextualization the

translator chooses as long as he/she uses them consistently.

In the interest of this analysis, consistency in legal translation can be achieved at

different levels by observing the conventions of legal drafting of global legal genres.

Conventions of form and substance in legal genres can be regarded as ‘‘classic

coordination-problem solutions, in that they conventionally signify concepts vital to

efficient communication’’ among their users [1, p. 68]. At a cognitive level, conventions

perform a ‘schema-input’ function to initiate the activation and maintenance of

Fig. 2 Sample of Brazilian sworn public translators’ credentials

10 The term ‘‘pre-salt’’ makes reference to an aggregation of rocks located offshore in a large portion of

the Brazilian coast and with potential to generate and accumulate oil. It was called pre-salt because it

forms a rock interval that ranges under an extensive layer of salt which, in certain areas of the coast, can

be as much as 2,000 m thick. The ‘‘pre’’ expression is used because, through time, these rocks were

deposited before the salt layer. The total depth of these rocks, i.e., the distance between the surface of the

sea and the oil reservoirs under the salt layer, can be as much as 7,000 m. Access through http://www.

petrobras.com/en/energy-and-technology/sources-of-energy/pre-salt/.

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particular schemata; at a social level, they guide and constrain the communicative

activities of professional communities and, at a textual level, they function at ‘‘macro-

rhetorical, rhetorical, phrasal-clausal and lexical levels of the text’’ [1, p. 65].

According to Dijk [5, p. 215], frames are organized ‘around’ a certain concept and

contain ‘‘the essential, the typical and the possible information associated with such a

concept’’. Therefore, frames seems to have a ‘‘more or less conventional nature’’ [5,

p. 215] and should specify what is typical or characteristic in global legal contexts. In

regard to technical vocabulary, Fillmore [9, pp. 224–229] argues that there is a ‘‘direct

word-to-frame association’’ and that such a frame—an interpretive frame—stands as a

‘‘pre-requisite to our ability to understand the meanings of the associated words.’’

Besides being seen as ‘‘tools for the description and explanation of lexical and

grammatical meaning’’ [30, p. 232], frames can also be seen as tools through which

elements of entextualization are used by the translator for experience and

understanding legal concepts across legal systems, as we shall see next.

5.2 Text Length and Organization

While the Original has 20,774 words, the Translation has 23,493 words altogether,

which is unusual as English tends to be more concise than Portuguese even considering

all the syntactic complexity of legal English. The translator seems to have employed the

classic concept of equivalence ‘‘involving the substitution of a sequence of equivalent

units’’ [31, p. 146]. Moreover, what seems to account for the longer translated text in

English is the translator’s choice of more-than-one-word synonymous expressions or

non-equivalent verb tenses which require more wording in English, as in ‘‘nos limites e

Table 2 Informative table of fees per lauda on sworn translation/version

Unit of federation Minas

Gerais

Sao

Paulo

Parana

Trade board JUCEMG JUCESP JUCEPAR

Type of service

1. Translation

1.1 Ordinary Texts: passports, birth certificates, identity cards,

driving licenses and similar documents

41.15 32.77 38.00

1.2 Special Texts: legal, technical and scientific, banking and

account documents, certificates and school diplomas

52.30 45.91 54.00

2 Version

2.1 Ordinary Texts: passports, birth certificates, identity cards,

driving licenses and similar documents

45.99 40.72 45.00

2.2 Special Texts: legal, technical and scientific, banking and

account documents, certificates and school diplomas

58.55 56.50 63.00

Fees are quoted in Brazilian reais per ‘lauda’ of 25 typed page or 1,000 characters, no spacing, of final

translated text

TRANSLATION = from foreign language to Portuguese

VERSION = from Portuguese to foreign language

URGENCY = more than 3 pages/business day (if deadline is established by client)

EXTRAORDINARY = requiring work on Saturdays, Sundays and/or holidays (idem)

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prazos estabelecidos neste Contrato’’ and ‘‘within the limits and terms established in the

Contract’’; and ‘‘assume’’ and ‘‘will be Responsible for’’, respectively.

The original The translation

6.1. A Cessionaria assume, sempre, em carater

exclusivo, todos os investimentos, custos e riscos

relacionados a execucao das Operacoes e suas

consequencias, cabendo-lhe, como unica e

exclusiva contrapartida, a propriedade originaria

do Petroleo, de Gas Natural e de outros

Hidrocarbonetos Fluidos, que venham a ser

efetivamente produzidos e por ela apropriados no

Ponto de Medicao da Producao, nos limites e

prazos estabelecidos neste Contrato, com

sujeicao aos Royalties, nos termos da Clausula

Vigesima Setima. (72 words)

6.1. The Assignee will always and exclusively be

Responsible for all the investments, costs and

risks related to the performance of the operations

and its consequences, and will be its

responsibility, as the sole and exclusive

counterpart the original property of the Crude

Oil, Natural Gas and other Fluid Hydrocarbons

that are effectively produced and appropriated by

it in the Endpoints of Production, within the

limits and terms established in the Contract,

subject to the Royalties in the Twenty-seventh

Clause. (79 words)

Other possible explanation for the lengthier translated text may ‘‘fall within the

scope of another translation universal, explicitation, /…/ where evidently the

aspiration to clarity weights more than stylistic considerations’’ [13, p. 54].

As far as textual organization is concerned, both documents are organized in

numbered sections/clauses justified to the right with headings in capital/bold and

subheadings in bold, respectively. The Original displays indenting and tabulation for

number items whereas the Translation presents a style without indenting or tabulation

with the public translator’s stamp on every page. According to Child [4, pp. 399–400],

‘‘a page with a solid small print’’ without indenting, like in the Translation, affects

readability to the point of ‘‘making the paragraph break noticeable’’ to the reader.

The original The translation

CLAUSULA QUARTA: VALOR E FORMADE PAGAMENTO

Valor

4.1. O Valor Inicial do Contrato, nos termos do art.

38 da Lei n8 12.276, de 2010, considerando os

subsıdios dos laudos tecnicos de avaliacao de que

trata o art. 38 da Lei n8 12.276, de 2010, e de R$

74.807.616.407,00 (setenta e quatro bilhoes,

oitocentos e sete milhoes, seiscentos e dezesseis

mil, quatrocentos e sete reais).

FOURTH CLAUSE: VALUE AND FORM OFPAYMENT——————

Value ———————————-

4.1. The Initial Value of the Contract, pursuant to

the terms of section 3, of Law n8 12.276, of 2010,

considering the input of the technical evaluation

reports referred to in Section 3 of Law No.

12.276, of 2010, is R$74,807,616,407.00

(Seventy-four billion, eight hundred and seven

million, six hundred and sixteen thousand, four

hundred and seven Brazilian Reais). —-

Two particular graphic features are displayed in the Translation but not in the

Original. On the one hand, the footnotes include the page numbers and the

translation official registry number on every page; on the other hand, all white space

between right and left margins is filled out with dashes (—) indicating a possible

safeguard against unwanted insertions.

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5.3 Definition of Terms

Defining terms is a conventional devise to aid the reader’s interpretation of legal

documents such as contracts. There are several ways of defining terms depending on

the purpose of the definition and their appropriateness to the purpose. For example,

definitions can be either full (X means Y) or partial, (X includes Y or X does not

include Y) or a combination of both. Conventions regarding the form of definitions

include: use of the simple present tense, list of definitions in alphabetical order,

emphasis on the defined term (initial capital, quotation marks etc.) and use of

singular, rather than plural, for the definitions (see [4]).

In general, if defined terms are used in more than one section, it is advisable to

gather them in a definition section at the beginning of the document; however, if a term

is used in only one section, it ‘‘is more appropriately defined at the beginning of that

section’’ [4, p. 355]. In the Original, we notice that the same term is defined in the

definition section and is given the same definition and meaning in the body of the text.

Following the approach of strict equivalence, the Translation follows this pattern.

The original The translation

‘‘Volume Maximo’’ significa a quantidade de

Barris Equivalentes de Petroleo que a Cessionaria

esta autorizada a produzir nos termos deste

Contrato.

‘‘Maximum Volume’’ means the quantity of the

Barrel Equivalent of Crude Oil that the Assignee

is authorized to produce within the terms of this

Contract. ———-

2.2. O exercıcio das atividades referido no

paragrafo 2.1 e limitado a producao de 5 (cinco)

bilhoes de Barris Equivalentes de Petroleo

(‘‘Volume Maximo’’), nos termos do § 28 do art.

18 da Lei n8 12.276, de 2010.

2.2. The performance of activities referred to in

paragraph 2.1 is limited to the production of 5

(five) billion of Barrel Equivalent of Crude Oil

(‘‘Maximum Volume’’), pursuant to the terms in

paragraph 2 of art. 1, of Law n8 12.276, from

2010. ———————–

As far as references are concerned, both the Original and the Translator do not

provide any reference backwards for defined terms. For example, although

‘‘Campo’’ and ‘‘Field’’, bear initial capitals, a well-known convention to signal

defined terms, no previous references to the terms are found in the text.

The original The translation

7.2.1. O valor da garantia de desativacao e

abandono de um Campo sera revisado sempre

que forem aprovadas revisoes do Plano de

Desenvolvimento daquele Campo que venham

alterar o custo das operacoes de abandono e

desativacao.

7.2.1. The value of this guarantee for Deactivation

and desertion of a Field will be revised every time

revisions of the Development Plan for that Field

are approved and which alter the cost of desertion

and Deactivation.

The definition section is conventionally placed at the beginning of both

documents. However, the items in the Original are listed in alphabetical order in

Portuguese and are so translated into English. In such order, the result is total

C. Frade

123

inconsistency: terms are ordered neither alphabetically nor in the order of

appearance in the document.

The original The translation

‘‘Valor do Contrato’’ significa, antes da Revisao, o

Valor Inicial do Contrato e, apos a Revisao, o

Valor Revisto do Contrato.

‘‘Volume Maximo’’ significa a quantidade de Barris

Equivalentes de Petroleo que a Cessionaria esta

autorizada a produzir nos termos deste Contrato.

‘‘Value of the Contract’’ means, before the

revision, the Initial Value of the Contract and,

after the Revision, the Revised Value of the

Contract. ———————-

‘‘Maximum Volume’’ means the quantity of the

Barrel Equivalent of Crude Oil that the Assignee

is authorized to produce within the terms of this

Contract. ———-

The problems presented in the definition of terms in both documents seem to have

its roots in the civil law style of legal drafting which bears a much more concise style

and do not often favor explicitness. As pointed out in Frade [10, p. 58], definitions in

civil law legal documents can be ‘invisible’ or implicit since ‘‘their references are to be

found in the more general codified laws as the codes and the constitution’’.

5.4 Parallel Structures

Parallel sentence structures are common stylistic resources to represent parallel idea

and to reinforce substance. Consistency in parallel structures helps the reader ‘‘to

recognize the relation in the substance’’ [4, p. 376]. These structures are

conventionally presented in a tabulated sentence structure ‘‘which sets the material

out on the page in a form that makes clear how its parts relate to each other’’ [4,

p. 346]. For a coherent and consistent result, both the introductory and the

concluding words should be integrated with each parallel item alone.

In our data, the Original displays the same substance with parallel verb phrases; on the

contrary, the Translation presents the same substance with unparalleled verb phrases after

the introductory part (‘‘it will only have effect…’’ and ‘‘must consider the period…’’).

The original The translation

5.3.3. A prorrogacao do Prazo de Vigencia dar-se-a

nos seguintes termos:

(a) somente surtira efeitos para atividades a serem

realizadas no Bloco em que ANP identificou a

ocorrencia de uma das hipoteses listadas no

paragrafo 5.3.1, conforme a solicitacao da

Cessionaria; e

(b) devera considerar perıodo de tempo

proporcional ao fato e seus efeitos, que ensejou o

pedido de prorrogacao, conforme analise da

ANP, observando-se o limite constante do

paragrafo 5.3.

5.3.3. The extension of the Validity Term will be

done according to the following terms:

(a) it will only have effect for the activities to be

done in the Block in which ANP has identified

the occurrence

of one of the hypotheses described in paragraph

5.3.1. according to the Assignee’s request; and

———-

(b) must consider the period of time proportional to

the fact and effects that generated the request for

extension, according to an analysis from ANP,

observing the limit

established in paragraph 5.3. —————

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Reading the introductory part of the Translation with either part (a) or (b) in the

following incoherent sentence:

*The extension of the Validity Term will be done according to the following terms

it will only have effect for the activities to be done in the Block in which ANP has

identified the occurrence of one of the hypotheses described in paragraph.

The example calls attention to the risks of using creating false parallels when a

one-to-one equivalence strategy is used by the translators throughout the translated

document. Moreover, the principles of legal drafting in Portuguese are not as rigid

and consistent as the ones in English, which may explain the overall lack of

consistency in the way provisions are presented or wrapped up without any serious

legal consequences.

5.5 Terms of Authority and Verb Tense

The use of modals and verb tenses as terms of authority is quite a problematic area

in legal English (see [7, 13, 29, 31]). In general, conditions, definitions and recitals

should be consistently drafted in the present tense. The explanation is that contracts

‘‘speak constantly’’, that is, ‘‘they ‘speak’ when they are used rather than when they

are drafted’’ [4, p. 383]. The future tense—will—is often used by mistake unless

used appropriately to ‘‘express duties with respect to future conduct that are either

imposed by some form of legislation or accepted by agreement’’ [4, p. 383].

On the other hand, according to Dorsey [7, p. 193], ‘‘[the modal] ‘shall’ expresses a

command to act and ‘shall not’ expresses a command to refrain from acting while ‘may’

provides authority to act, ‘may not’ denies authority to act’’. It goes without saying that

all of these modals are inherently ambiguous and may also pose problems in legal

translation. In Portuguese, for instance, terms of authority are interchangeably used in

the future tense for commands or authorization to act with performative verbs, as in

‘‘surtira efeito’’. The modals ‘‘dever’’ and ‘‘poder’’ also used in the future tense, slightly

correspond to the English dichotomy shall-may, as ‘‘devera considerer’’ in the Original.

In both the Original and the Translation, most statements are presented in the

future—‘‘surgira’’ and ‘‘will have only effect’’—in line with the strict equivalence

approach.

The original The translation

5.3.3. A prorrogacao do Prazo de Vigencia dar-se-a nos

seguintes termos:

(a) somente surtira efeitos para atividades a serem

realizadas no Bloco em que ANP identificou a

ocorrencia de uma das hipoteses listadas no paragrafo

5.3.1, conforme a solicitacao da Cessionaria; e

(b) devera considerar perıodo de tempo proporcional ao

fato e seus efeitos, que ensejou o pedido de prorrogacao,

conforme analise da ANP, observando-se o limite

constante do paragrafo 5.3.

5.3.3. The extension of the Validity Term will be done

according to the following terms: —(a) it will only have

effect for the activities to be done in the Block in which

ANP has identified the occurrence of one of the

hypotheses described in paragraph 5.3.1, according to

the Assignee’s request; and —–

(b) must consider the period of time proportional to the

fact and effects that generated the request for extension,

according to an analysis from ANP, observing the limit

established in paragraph 5.3. ——-

C. Frade

123

In particular, the Translation makes matters worse by using interchangeably the

simple present, the future and modals (‘devera’ and ‘will’, ‘shall’ and ‘must’)

without distinguishing mandatory provisions (‘shall’ and ‘shall not’) from

discretionary ones (‘may’ and ‘may not’). Dorsey [7, p. 192] claims that ‘‘as

commands goes, ‘‘must’’ is weaker and more ambiguous than ‘‘shall’’ [and] is not

used in everyday English significantly more often than ‘‘shall’’ is’’.

The original The translation

6.2. A Cessionaria devera suportar todos os

prejuızos em que venha a incorrer, inclusive

aqueles resultantes de caso fortuito ou de forca

maior, em especial de acidentes ou de eventos da

natureza que afetem a producao de Petroleo, de

Gas Natural e de outros Hidrocarbonetos Fluidos

na Area do Contrato.

6.2. The Assignee will bear all the losses that it

might incur, including those resulting from Acts

of God, especially in relation to accidents or

events of nature that might affect the production

of Crude Oil, Natural Gas and other Fluid

Hydrocarbons in the Contract Area.

The analysis of terms of authority in the Translation evidences that they are more

consistently used than in the Original. However, there seems to be ‘‘no means of

understanding why in contexts which are absolutely similar one or the other modal

[or verb tense] has been chosen’’ by the translator, as also pointed out by Garzone

[13, p. 68] in her comparative translational analysis of French and English

arbitration rules.

5.6 Discussion

The analysis evidenced some preliminary insights into the process of official legal

translation in Brazil. From the few formal entextualization elements depicted, the

Translation tends to reproduce the same ‘pathological’ clauses, to use an arbitration

jargon, in the Original which conventionally do not meet the requirements of

syntactic consistency. This is the case, fpr example, of defective parallel structures

(Sect. 5.4) and the translation of terms of authority which do not specify whether a

provision is mandatory or discretionary (Sect. 5.5). As pointed out in Frade [11,

p. 151], in terms of linguistic criteria, pathological clauses are poorly-drafted in

such a way that they may be rendered ambiguous or even invalid for global use.

The original in Portuguese seems to rely on its authoritative status to provide a

strictly domestic-oriented discourse to be accepted and understood in global

surrounds by means of literal translation. On the other hand, literal translation seems

to be crucial ‘‘for the reproduction of institutional authority’’ [24, p. 487] in such

area of expertise embedded in the original text.

Expertise is closely related to the translator’s authority since he/she is given legal

authorization to make his/her own entextualization choices ‘‘by defining what

counts as a ‘legitimate’ text /…/ or by achieving a plausible interpretation’’ [32,

p. 634] in global surrounds. By playing the role of an entextualizing agent, the

translator performs ‘‘an act of control /…/ as part of the process of entextualization,

decentering, and recentering’’ [2, p. 76]. Brazilian translators seem to rely on their

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123

authority of being ‘public’ and ‘sworn’ not to employ a more effective and

recommendable translation approach (other than the word-for-word one) to comply

with the conventions of global legal genres. As argued by Garzone [12, p. 9], the

choice of legal translators towards ‘‘the degree of equivalence to be achieved in the

translation of a given text is not absolute’’ but rather must account for their

diversity, intended function of both source and target text and a ‘‘sufficiently high

level of generalization as to be suitable’’ for virtually all types of global legal genres

Garzone [12, p. 9].

On the whole, the results unveil the issue of how legal translation remains a

problematic area in Brazil due to legislation restrictions and lack of translational

knowledge skills and legal expertise required to operate in a global environment.

The analysis also showed the urgency of Brazilian legal operators and legislators to

improve their original legal drafting skills aiming at potential effective global-

oriented original translations. All is needed is the acquisition of such expertise in the

course of academic education and by continuing professional education and

practice.

6 Final Remarks

As an emerging, civil law and Portuguese speaking country, Brazil has been pursued

global status in areas it has gained acknowledged expertise, such as oil, gas and

mining. The current situation requires the combination of efforts and coordinating

actions among public and private sectors to set up consistent policies and well-

established standards in order to guarantee fair and symmetrical conditions for

negotiating with global partners. In particular, the non-uniform circulation of local

public documents through global space requires the transformation of Portuguese-

written legal documents (original texts) into their versions in English (translated

texts). In other words, the source texts are to be rendered global legal genres by

means of translation.

Linguistic anthropologists have relied on the concept of ‘entextualization’ to

analyse discourse as being decontextualized and further recontextualized in

different contexts, such as transcriptions and translations. This study examined

the entextualization process employed by the translator(s) in the translation of a

domestic-oriented legal document—an oil contract—from Portuguese into a global

legal genre in English under the framework of consistency. The comparative

analysis provided in relation to some formal elements evidenced the use of strict

literal translation and the translator’s authority to legitimate the text by his/her

entextualization choices in spite of inconsistencies displayed all over the final

product.

Further investigation will follow to replicate the concept of entextualization in

the translation of other global legal genres such as treaties, diplomacy and

arbitration agreements to particularly investigate the entextualization of legal

concepts across legal systems. As far as Brazilian legal education is concerned, law

schools urge all efforts to insert legal English in their curricula, including a

particular course on legal translation for global purposes. Moreover, Brazilian

C. Frade

123

legislation on public translation must be urgently reviewed and updated in order to

cope with globalized times and to guarantee the hiring of expert legal translators ‘‘in

context for intercultural and interlingual communication purposes’’ [3, p. 39] as

main requirements for achieving harmonization and standardization with global

legal practice.

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