A foreign agency's demands vs. the sworn translator's local laws
Thread poster: José Henrique Lamensdorf

José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 14:49
English to Portuguese
+ ...
May 24, 2009

Over the past three years, on three separate occasions (hence different projects), I was approached by three different PMs from the same large, famous, well-regarded international agency specifically about sworn translations, for legal purposes in Brazil.

Such translations here are ruled by a federal law dated 1943, and successive other legally-enforced rules. The core of how it works here is explained on my web page http://www.lamensdorf.com.br/tpicen.html .

The agency demanded, before anything else, that I signed their standard agreement which, in several clauses, clashes with the Brazilian laws on the matter. On the second instance, I took the trouble to point these out and explain them clearly to them... to no avail. I was told that their lawyers were sent a copy of my comments, but I never received any feedback, and more than a year has elapsed ever since. Their agreement remains unchanged.

IMHO it would be just a matter of adding a clause there to the effect that whenever the destination country of a sworn translation for official/legal purposes had specific laws on the matter, these would override any clauses on the agreement that could otherwise defeat such purposes. This would best serve their end-client, but they don't seem at all concerned about them.

The bottom line is that this agency in all three cases cancelled the project, probably telling the client to find someone else to get it done. Of course, I'd sign that agreement for common translations, but I couldn't formally commit to breaking the law in the country where I live, and whose government has certified me as a sworn translator for official/legal purposes.

Some examples of the clashes:

- They explicitly give me the right to refuse any job. BR law prohibits me from turning down any sworn job. Mandatory rates and delivery times are another issue - the client can withdraw the request if these are not acceptable.

- They will not reimburse me for any additional expenses incurred in the fulfillment of the request. BR law sets mandatory rates for translation, assuming that the originals will be delivered at my door, and that the translation will be picked up there. As sworn translations in Brazil are always hardcopy, their intent is to have me paying all postage/courier charges on the way back, as well taking time and costs, and paying all fees for eventually required consular legalization or signature notarization, definitely not covered by - nor mentioned in - the mandatory translation rates.

- This one is a real bummer! They demand to have my sworn translations reviewed/proofread by their own "experts" before final issue, while BR laws are very specific in making me personally liable before any court for each and every inaccuracy in my sworn translations brought to their attention. All they want is the right to deduct some amount from my payment if the work is deemed substandard or incomplete, in other words, double jeopardy, though in different countries.

- They want me to declare that the contents af their sworn translations is their intellectual property and that I may not disclose it at any time. I am required by law to keep a copy of all sworn translations in bound books, for life. Though for ethical reasons I wouldn't disclose any of them to a third party, if a Brazilian court order ever requested specifically such disclosure, I'd have to comply.

- They want to preclude me from working for any client of theirs for some period time. Nevertheless, all my information must appear on every page of my sworn translations - after all, I am the one responsible for them. As I said before, I'm not allowed to reject any sworn work. So, if the end-client contacts me directly, I must serve them accordingly.

- They want me to do it at their rates, at their speed, under their penalty clauses. Meanwhile BR law says that I may not change the mandatory rates to anyone, and is very specific about rated daily productivity, surcharges on deadlines requiring a higher daily volume, as well as the penalties for late deliveries within these metrics.

- Finally, they want to pay their way, after some 30 days or more, and have me cover the transfer fees, while a later BR federal normative instruction determines that payment for sworn translations is owed COD, free from any deduction.


All this did not come from a fly-by-nite one-man-show operation, but an unquestionably large, international, respected translation agency. They prefer to drop a job, to dismiss a client, than being precluded from imposing their internal 'laws' upon a foreign country. I kinda feel sorry for the client that seeks translation services there. They obviously need their documents translated in a way that will be acceptable for the Brazilian government agencies where they will be submitted, but they won't get it from that firm, regardless if it boasts about such service on their web site.


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 19:49
French to German
+ ...
No need to feel sorry, IMO May 24, 2009

José Henrique Lamensdorf wrote:
All this did not come from a fly-by-nite one-man-show operation, but an unquestionably large, international, respected translation agency. They prefer to drop a job, to dismiss a client, than being precluded from imposing their internal 'laws' upon a foreign country. I kinda feel sorry for the client that seeks translation services there. They obviously need their documents translated in a way that will be acceptable for the Brazilian government agencies where they will be submitted, but they won't get it from that firm, regardless if it boasts about such service on their web site.


I would not feel sorry, neither for the agency, nor for their end clients... The 'rules' you mention in your post are probably advertised towards said end clients as being some QA measures taken by the agency to keep them out of trouble. It is up to the client to give those 'rules' some thought and to determine whether these are in their best interest if they prevent the client from getting sworn translations done.

While I am not a sworn translator in France, I can say that having a sworn translation (with apostille and mandatory mentions) "amended" by the proofreaders of any agency and then being sold as being an original is quite illegal.

This is typically (even if it is a large and renowned agency) a dwarf posing as a giant. Why don't they open a subsidiary in Brazil?

Laurent K.

[Edited at 2009-05-24 16:54 GMT]


 

Tina Vonhof
Canada
Local time: 11:49
Member (2006)
Dutch to English
+ ...
frustrating May 24, 2009

I understand that all this is very frustrating for you. It would be easy for the agency to build a little flexibility into their requirements to allow for local legal regulations. And I do feel sorry for the clients, who may have gone to a lot of trouble to find out where to get a certified translation in the first place.

There is only one point, the one you call 'a real bummer', where I feel differently.

I work from time to time with an agency that wants to see an electronic version of the document before I certify and mail it and I can see the point. They guarantee to the client that the translation will be accurate and that the layout will be exactly the same as the original. Even though I am legally liable for the certified translation, the agency has a responsibility to the client and I respect their procedures for quality control. Since it may take up to a week for them to receive the certified document in the mail, I understand that they want to make sure it looks ok and prevent having to send it back and forth if there should be a problem with it. I, at my end, am quite happy to have the document proofread free of charge.


 

José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 14:49
English to Portuguese
+ ...
TOPIC STARTER
A possible difference May 24, 2009

Tina Vonhof wrote:
There is only one point, the one you call 'a real bummer', where I feel differently.

I work from time to time with an agency that wants to see an electronic version of the document before I certify and mail it and I can see the point. They guarantee to the client that the translation will be accurate and that the layout will be exactly the same as the original. Even though I am legally liable for the certified translation, the agency has a responsibility to the client and I respect their procedures for quality control. Since it may take up to a week for them to receive the certified document in the mail, I understand that they want to make sure it looks ok and prevent having to send it back and forth if there should be a problem with it. I, at my end, am quite happy to have the document proofread free of charge.


I guess you have different procedures there in Canada. I recently learned that one professional certifying institution there turned down a translation by a colleague certified in Canada, because "all the documents were issued in Brazil, so they must be translated by a professional certified by Brazilian - not Canadian - authorities".

As I understool, since there is no specific law there about what certification is required from the translator, each Canadian institution/agency may set their own rules. We have the same situation in Brazil regarding certified vs. plain photocopies, as well as notarized vs. plain signatures.

However translation of foreign documents for any official purposes in Brazil, as determined by an ancient law (at least older than me), must be done by Brazilian-certified translators. As the translator remains fully liable for its accuracy, no external unrequested input - especially from the client or their representative (the agency) - may be implemented. Of course I can ask any expert for advice on how to translate a specific term, but it's up to me to follow their advice or not.

Now imagine if the client, the agency, or their proofreader demands that I replace "psychoanalyst" with "brain surgeon", or "USD 1 million" with "BRL 1 million". Who will be liable when there is any trouble? My name and all ID info will be on every page of that translation, while the agency's and the proofreader's will appear only on some invoices filed away long ago.


 

Tina Vonhof
Canada
Local time: 11:49
Member (2006)
Dutch to English
+ ...
My decision May 25, 2009

[quote]José Henrique Lamensdorf wrote:

I guess you have different procedures there in Canada. I recently learned that one professional certifying institution there turned down a translation by a colleague certified in Canada, because "all the documents were issued in Brazil, so they must be translated by a professional certified by Brazilian - not Canadian - authorities". [quote]

I haven't come across that situation but I find that strange. Recently I translated some documents for someone in the UK and I am waiting to hear whether the Canadian certification will be accepted there.

In response to your other point, whatever the client or the agency might demand, it's my decision whether I accept that or not. I was thinking more about a small typo or glitch in the formatting that I missed, where I would be grateful if that was pointed out to me ahead of time. Also, in the case of diplomas, I sometimes really need the client's input. not long ago, for example, I came across a subject in a transcript that literally translated was "Recognition and Exploration" - what was I to make of that? After consulting with the client about what they actually did in that course, I ended up translating it as "career development".


 

The Misha
Local time: 13:49
Russian to English
+ ...
Ouch! May 25, 2009

If I got you right, Jose, what you are saying is that as a sworn translator in Brazil you are OBLIGATED to accept every sworn job offered? Ouch! What if you are booked? What if you don't trust the client? What if you simply don't like them or had a bad experience with them in the past?

 

José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 14:49
English to Portuguese
+ ...
TOPIC STARTER
Simple solutions May 25, 2009

The Misha wrote:
If I got you right, Jose, what you are saying is that as a sworn translator in Brazil you are OBLIGATED to accept every sworn job offered? Ouch! What if you are booked? What if you don't trust the client? What if you simply don't like them or had a bad experience with them in the past?


It's not so bad, they have taken care of all that.

Minimum production required by law is something around 400 words per day. If their rush requires more than that, the translator may charge 50% urgency surcharge. If s/he chooses to do so, and the client doesn't want to pay the rush rate, they can calculate a compatible delivery time. Bear in mind that it's supposed that a sworn translator will have to serve many clients, so this prevents one client from monopolizing them.

All the law says is that you can't bluntly tell a client "No, I won't do it!". You can tell them when you can do it for, and how much it's gonna cost them if they want it earlier. The legal surcharge for work done on weekends and holidays is 100%.

If you don't trust the client, it's their problem. You may demand total or partial payment in advance, and you are not expected to deliver the translation until it has been paid for.

What bad experience can you have with direct clients, other than a translation agency trying to rule things in your country?


 


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