Translating “onverminderd”

How should onverminderd artikel X be translated into English? This is a tricky translation point, perhaps one of the trickiest.

How is onverminderd artikel X used in legal Dutch?

This is surprisingly difficult to ascertain. Despite its ubiquity, there appears to be no authoritative or universally applicable definition. Indeed, the meaning seems to depend on the context and is interpreted on a case-by-case basis. Aanwijzing 85 says only that the phrase means that “het genoemde artikel in het omschreven geval onverkort van toepassing is”.

Judging on the basis of the meagre information available, the Dutch phrase is usually used in the broad sense of “without limiting the application of article X” or “without affecting the full and independent application of article X”. Looked at another way, this phrase is a formal way of marking a text to show that another clause applies, i.e. in the sense of “in addition to article X”.

Onverminderd artikel X = without prejudice to article X

At first glance, is seems obvious. Onverminderd artikel X should be translated as “without prejudice to article X”. This is the literal translation conventionally used in EU legislation. It reflects the French equivalent, sans préjudice de.

However, this is not exactly a problem-free convention.

The problems associated with “without prejudice to article X”

1. The phrase is used differently in the UK

According to drafting experts, when the phrase “without prejudice to article X” is occasionally used in UK or Irish legislation, it is usually used in the sense of “without limiting the generality of article X”. This is not how the Dutch use the phrase. Briefly, Dutch legal drafters use the cross-reference roughly in the sense of “in addition”, whereas UK drafters use it in the sense of “in particular”. So it seems that the two phrases are not being used or interpreted in exactly the same way in the two languages, despite being conventional equivalents.

2. The phrase is criticized by legal writing experts

“Without prejudice to article X” is difficult to understand. It doesn’t really belong in well drafted text. A cursory review of various drafting guides is sufficient to indicate that the wording “without prejudice to article X” is harshly criticized by every legal writing expert who looks at it. The preference is for clearer, plainer alternative wording.

As far as I know, the Dutch are not receiving similar advice from their legal-writing experts with regard to onverminderd. The only style guideline I’ve found so far is in Aanwijzing 85, which says the phrase should be “alleen gebruikt, indien dit noodzakelijk is om de onderlinge verhouding tussen de ene en de andere bepaling duidelijk te maken.” (To me, this seems like a strange guideline because onverminderd does not seem a useful way to make things clearer.)

As long as this legalistic phrase continues to appear in Dutch and European drafted text, we can expect it to be expressed in English translations in the same way. However, in situations where comprehension matters more than the faithful translation of unnecessarily legalistic and unclear wording, consideration should be given to using one of the plainer, clearer alternatives.

3. The phrase may be a European regionalism

The phrase “without prejudice to article X” is occasionally found in British and Irish legislation, but it seems that it is almost never used at all in legislation outside the EU. Searches of Australian, Canadian and California legislation show that the phrase is virtually unknown there. This cross-reference appears to be a European localism. I haven’t come across a detailed analysis of this, but I suspect the phrase, or at least the occasional use of the phrase, has entered British and Irish usage as a Gallicism adopted from EU law. (I’m still open to other theories that explain this difference though.) Dutch lawyers can expect more resistance to this phrase from non-European lawyers.

4. Confusion is caused by conflation with the wording used in the prevailing-clause convention

And now we get to the truly tricky bit. There is an overlap between this no-effect cross-reference (“without prejudice to”) and a prevailing-clause cross-reference (i.e. “subject to” or “notwithstanding”).

Onverminderd artikel X is simply different in character and meaning from a prevailing-clause cross-reference. However, the two conventions are used in quite similar situations. Because of this, an English-speaking lawyer is going to naturally prefer familiar and specific prevailing-clause wording over unfamiliar and vague “without prejudice” wording, even though the concepts are different. Indeed, some English speakers may wonder why the “without prejudice” clause is even necessary. It doesn’t seem to add anything specific to the text. I haven’t yet come across any reports on this, but one suspects that, once English-speaking lawyers get involved in the drafting process, there is probably a tendency to switch from no-effect wording to prevailing-clause wording. One wonders how many times onverminderd has lost its original meaning during an international drafting process.

Onverminderd artikel X is broader than prevailing clause wording.

  • Sometimes onverminderd artikel X is used to introduce a general clause, i.e. in the place where an anglophone lawyer would expect to see “subject to article X”.
  • At other times, onverminderd is used to introduce an exception clause, i.e. in the place where an anglophone lawyer would expect to see “notwithstanding article X”.

Onverminderd is a broad and vague phrase that can be used in both “subject to” and “notwithstanding” situations—even though these English phrases are the opposite of each other! This is a strange thing. It should come as no surprise that mistranslation happens all the time.

Guidelines

It’s unlikely that the Dutch will abandon the onverminderd cross-reference and switch to the prevailing-clause convention that is so prominent in English drafting. So the best advice is to hold one’s nose and to continue to translate the phrase literally as “without prejudice to”, as happens in the EU context. Resist the urge to switch to conventional prevailing-clause wording. Explain to English speakers that the prevailing-clause wording should not be used even though it looks appropriate in the situation.

However, what this means is that English translations of Dutch drafted text will continue to include a cross-reference that is problematic for a number of reasons. It will be difficult for English speakers and others to understand. Standard explanations should be developed and used when the phrase comes up. If the situation calls for it—e.g. employment contracts, consumer contracts, and general terms and conditions—consider using explicatory, plainer or clearer wording such as “without limiting article X”, “without affecting the full and independent application of article X” or even just “in addition to article X”.

There is an interesting translation issue here. The translation standard is to produce text the Dutch drafter would have prepared if the drafter had been an English speaker. But does this standard require the replacement of an unfamiliar Dutch cross-reference convention with one that is more conventional in English, especially one perceived to be more specific and more useful? In the end, the answer is “no”—even if the end result is more difficult to understand. Many English speakers will find this difficult to swallow, but the no-effect convention is too different from the prevailing-clause convention for one to function for the other.

Still, there may be times when drafters refuse to accept the “without prejudice” wording and insist on using either “subject to” or “notwithstanding”. This may happen, for example, if there is no original Dutch text or if the contract being prepared by Dutch lawyers is a common-law contract. If this route is taken, make sure you understand the prevailing-clause convention in English and how it works exactly.

Greg Korbee (October 2014)

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