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Unveiling Linguistic Biases: FCM v. Grove Pham for International Arbitration
Unveiling Linguistic Biases: FCM v. Grove Pham for International Arbitration
Introduction:
In the recent case of FCM Investments LLC v. Grove Pham LLC, the California Court of Appeal raised a critical issue regarding the potential bias faced by witnesses using interpreters in arbitration. While FCM v. Grove Pham dealt with domestic arbitration, the implications resonate globally, given the widespread use of interpreters in international arbitration. This article explores the background of the case, delves into the biases associated with the use of interpreters, draws parallels with court interpretation, and suggests best practices for arbitration practitioners.
Revisiting FCM v. Grove Pham: An Arbitral Award Unraveled:
The FCM v. Grove Pham case centred around a real estate deal's cancellation, where the arbitrator attributed a breach to Grove Pham based on witness credibility. The pivotal point was the arbitrator's perception of Phuong Pham's use of an interpreter, viewing it as a tactic to appear less sophisticated. The California Court of Appeal, however, found this perception to be biased, emphasizing that English fluency cannot be assumed based solely on years spent in the United States. The Court vacated the award, highlighting the potential prejudice caused by the arbitrator's misconceptions about language proficiency.
Bias and Diversity in the Use of Interpreters:
The case prompts a broader discussion on bias and diversity in arbitration, specifically concerning interpreters. The choice of language in arbitration affects the perceptions of witnesses, necessitating awareness of potential biases, both conscious and unconscious. The use of interpreters raises questions about the standards required for their inclusion in arbitration proceedings. While no formal linguistic analysis has been conducted in arbitration, insights from court interpretation standards can offer guidance.
Linguistic Views on Court Interpreters: Lessons for Arbitration:
Linguists, such as Philipp Sebastian Angermeyer, distinguish between "interactional competence" and "linguistic and conceptual competence" when assessing an individual's ability to testify in a second language. These concepts highlight the importance of understanding contextual participation and the ability to comprehend complex information. Applying these principles to arbitration, witnesses may lack the vocabulary to navigate the proceedings fully. Court statutes, like the Canadian Charter of Rights and Freedoms, guaranteeing the right to an interpreter, underscore the significance of confronting biases when witnesses require language assistance.
Best Practices for Interpreters in Arbitration Proceedings:
The use of interpreters in arbitration can be a double-edged sword. While it may disrupt the flow of proceedings, it is crucial for witnesses who struggle with the language of the arbitration. Counsel should carefully evaluate the necessity of interpreters, considering the difference between interactional and linguistic competence. Parties might opt for a supportive approach, where witnesses attempt to testify in the arbitration language, with interpreters intervening only when difficulties arise. Arbitrators play a pivotal role in combating unconscious biases. The case of FCM v. Grove Pham underscores the importance of arbitrators being aware of potential biases towards witnesses using interpreters. Any bias, even if unconscious, may compromise the integrity of the arbitral process and provide grounds for challenging an award.
Conclusion:
FCM v. Grove Pham serves as a wake-up call for international arbitration practitioners. While the case involves domestic arbitration, the issues raised are pertinent globally. Linguistic studies on court interpretation offer valuable insights for addressing biases associated with the use of interpreters in arbitration. As the international arbitration landscape continues to evolve, combatting biases, whether conscious or unconscious, becomes paramount to maintaining the integrity of the arbitral process. In the pursuit of justice, practitioners must strive to create an environment that is free from linguistic prejudices, ensuring a fair and unbiased resolution of disputes.
- FCM Investments LLC v. Grove Pham LLC, the California Court of Appeal raised a critical issue regarding the potential bias faced by witnesses using interpreters in arbitration.
- The pivotal point was the arbitrator's perception of Phuong Pham's use of an interpreter, viewing it as a tactic to appear less sophisticated.
- The choice of language in arbitration affects perceptions of witnesses, necessitating awareness of potential biases, both conscious and unconscious.
