Common mistakes in bilingual legal drafting

In cross-border transactions across the Gulf region, contracts are often drafted in English and Arabic. Legal drafters usually start with one language and then proceed to translating the contract to the second language. Translation is usually treated as a formality only to discover during disputes that both versions do not have the same legal effect. This is usually the result of a number of errors that legal drafters tend to make when translating contracts. We explore these errors in this article.

1. Translating words instead of translating legal effect

Many drafters focus on finding the literal Arabic or English equivalent of a term instead of asking: “What legal result is this clause trying to achieve?” For example, a legal expression such as “best efforts” does not have a direct equivalent carrying the exact same legal implications in Arabic legal drafting. The literal translation of “best efforts” in Arabic “أفضل الجهود” does not necessarily communicate the required standard of conduct expected. Let’s take as an example the following clause:

“The Distributor shall use its best efforts to obtain all approvals necessary for the sale of the products.”

A literal Arabic translation might read:

“يلتزم الموزع ببذل أفضل الجهود للحصول على جميع الموافقات اللازمة لبيع المنتجات.”

The issue is that “أفضل الجهود” may sound vague in Arabic legal drafting. A court or tribunal may ask whether the Arabic expression requires exhausting all available options.

A more accurate translation should clarify the intended obligation directly as follows:

“يلتزم الموزع باتخاذ جميع الإجراءات المعقولة والمتعارف عليها تجارياً وبذل عناية مهنية جدية للحصول على الموافقات اللازمة لبيع المنتجات.”

This version focuses less on literal wording and more on the legal effect the clause is trying to achieve.

2. Confusing mandatory and discretionary wording

One small word can completely change a contract. For example, terms like “shall”, “may” or “must” are sometimes translated interchangeably into Arabic even though they create very different legal consequences. Similarly, Arabic words like “يجوز” , “يلتزم” or “يجب” are not always translated precisely into English. These terms entail major differences in legal effect.

For example, the clause “The Tenant shall maintain the premises” creates a mandatory obligation. Translating “shall” as “يجوز” instead of “يلتزم” would completely change the clause from a binding obligation into a discretionary action.

3. Translating contracts without considering the governing law

A clause cannot be translated properly in isolation from the governing law. The same expression can entail different legal consequences depending on which law governs the contract.

For example, penalty clauses can become unenforceable or subject to judicial scrutiny under English law if considered punitive rather than compensatory. In contrast, under many Arab civil law systems, “الشرط الجزائي” is generally recognized as the agreed compensation depending on the actual harm suffered.

This illustrates why contractual clauses cannot be translated accurately without considering the governing law under which the clause will operate.

4. Failing to define which version prevails

One of the most overlooked issues in bilingual contracts is failing to clearly specify which language version governs in case of conflict. This becomes extremely important during disputes or court proceedings.

For example, the English version of a contract may state:

“Payment shall be made within 30 calendar days.”

However, the Arabic version may be translated as:

“يتم السداد خلال 30 يوم عمل.”

Under the English version, weekends and holidays are included in the calculation of the deadline, however under the Arabic version only working days are counted.

As a result, one party may argue that payment became overdue after 30 calendar days, while the other party may rely on the Arabic version to argue that the payment deadline had not yet expired.

In bilingual legal drafting, accurate translation is not simply about language, but about preserving the legal effect intended by the parties. Therefore, in addition to linguistic precision, and as highlighted in this article, a well-drafted bilingual requires a clear understanding of legal terminology, governing law, and the practical consequences of each clause.

For those interested in developing practical skills in bilingual legal drafting, Aequitas Institute offers specialized workshops focused on legal drafting and contract preparation in both English and Arabic.