Stating a Term of Art in Two Languages

While roaming the SEC’s EDGAR system today I happened upon the following, in a form of indemnification agreement between a company and one of its directors:

3.4 Exclusions.

Notwithstanding any other provision of this Agreement, the Company will not be obligated under this Agreement to provide indemnification in connection with the following:

(c) If a court of competent jurisdiction has made a final and binding judgment that the act or omission of the Indemnitee can be characterized as a result of willful misconduct (opzet), willful recklessness (bewuste roekeloosheid) or serious culpability (ernstig verwijt) under Applicable Law.

In this contract, “the Company” is Frank’s International N.V., a Netherlands company. The notion of stating legal concepts in English and Dutch seems a sensible one. Stated more generally, if an English-language contract is governed by the law of a jurisdiction where the courts use a language other than English, it might be a good idea to state hot-button terms of art in English and that other language. I assume that it would be best to state which version controls, to avoid any argument over faulty translation.

But the quoted contract is governed by Texas law, and the contract states that Texas courts have exclusive jurisdiction. So I don’t know  whether the Dutch terms are relevant (and I’m not inclined to research the issue). Perhaps the terms were translated into Dutch for the benefit of Dutch executives.

I’d be interested to hear from people (including translators) who are used to dealing with transactions involving more than one language.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.