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Bulletin de fixation/avis de fixation
Dec 1, 2020 10:42
3 yrs ago
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French term

soumettre à la discussion préalable

French to English Law/Patents Law (general)
Pleadings by appellant against an arbitral award. The appellant is claiming that a point of law based on an opinion of the arbitrator that two articles were identical was raised of his own motion by the arbitrator without prior argument, and that this constitutes a breach of the principle of adversarial appraisal.

"le respect du principe de la contradiction impose donc au tribunal arbitral, notamment, de n'appliquer d'office aucun moyen de fait ou de droit sans le soumettre à la discussion préalable des parties "

"l'arbitre a « l'obligation de soumettre à la contradiction les moyens de droit qu 'il soulève »."

"Manifestement, le moyen de droit tiré de l'assimilation de l'article 3.3 à l'article 7.3(a), et de sa soumission au même régime contractuel que cet article 3.3 (a), a été relevé d'office par le Tribunal arbitral dans sa sentence du 7 mai 2019 sans que le Tribunal arbitral le soumette à la discussion préalable de XXX et de YYY". (XXX and YYY are the opposing parties)

The expression discussion préalable I would translate as "prior argument". But what's the best verb therefore for soumettre? Of course, maybe the entire idea should be rephrased. I want to get this idea that the point of law is "exposed" to the rough-and-tumble of the parties' arguments. Neither "submit for" nor "subject to" really seems to work for me...
Proposed translations (English)
4 submit (the matter/issue) for prior argument (by the parties)
5 +1 allowing the parties to exchange their views
4 submit [the matter/the issue/it] to the parties for argument beforehand
4 without agreeing to a preliminary discussion/argument
3 submitted for prior discussion
3 -2 To table for preliminary discussion

Discussion

Daryo Dec 7, 2020:
That makes sense.
BTW, it's not a question of "being capable of", it's a question of bothering to actually do it. But then comes the real hurdle - interpreting correctly what was found - that part does not always go well.
Mpoma (asker) Dec 4, 2020:
I finally put "... without allowing argument of it by the parties before doing so". To me this seems to preserve/gloss over what I think is in fact an ambiguity regarding the two distinct meanings of soumettre à.
Mpoma (asker) Dec 3, 2020:
@Daryo Funny how some translators seem to assume others are not capable of looking up words... and unwisely resort to ALL CAPS.

In fact Bridge gives as translation for assimiler à, "treat as; deem to be". My plain French dictionary gives "to be comparable; to be assimilated". Wiktionnaire gives rendre semblable and 6 other definitions. It is a word I have been encountering for at least 25 years. So thanks for the handy tips but I came to my own conclusion about it, from the ST: "le Tribunal arbitral a relevé d'office dans sa sentence du 7 mai 2019, le moyen de droit selon lequel l'article 3.3 de l'Annexe 5 du contrat était pratiquement identique à son article 7.3 (a)". Yes, I could have said "almost identical" in the question... but you didn't need to know that, this question is not about that verb, and your speculative assertion about what assimiler means here is also off the mark.
Daryo Dec 3, 2020:
Agree with all that the objection is essentially about the non-respect of the adversarial procedure.

but there are two elements to clarify

-- this is about an arbitration procedure, not a litigation in a court, so no "judge" to be seen anywhere in this story;

-- the two article of the contract [article 3.3 and article 7.3(a)] are NOT "identical" - what is "identical" is the law that was applied to them by the arbiter - "assimilation" means that these two articles of the contract have been considered as "being of the same type / of the same legal nature", NOT that "they are identical".
Eliza Hall Dec 2, 2020:
SafeTex does not understand Just for clarity, in an adversarial system (i.e., most modern legal systems), courts (or tribunals/arbiters/judges) are not supposed to decide disputed issues without first giving the parties the chance to make their arguments on that issue.

For instance, let's say the issue is jurisdiction: "Does this court have jurisdiction over this dispute? Or over these parties?" (If the court decides it doesn't have jurisdiction, it will dismiss the case).

Even though US courts are allowed to raise the issue of jurisdiction sua sponte (i.e. without having to wait for a party to raise the issue for them), they cannot DECIDE that issue without giving the parties the chance to present their arguments on it. Party A will argue "Yes, the court has jurisdiction for XYZ reasons," Party B will argue the opposite, and then the court decides who's right.

Before ruling on a given issue (e.g., jurisdiction), the court has to submit the issue to the parties for argument.

The parties will then "submit" (or more commonly, "present" or "make") their arguments to the court. In this case, they couldn't do that because the arbiter never submitted the issue to them in the first place.
SafeTex Dec 2, 2020:
@ (h)all What you are now saying is so far off from your answer though

You are now saying that the parties were not given "the opportunity to present THEIR (own) arguments on that issue"

But your suggestion is

submit [the matter/the issue/it] to the parties for argument beforehand

As the parties are the indirect object, who is heck is the subject who did not submit the matter?

It can only be the tribunal but the tribunal does NOT submit matters for argument

it is the job of the lawyers to submit their arguments

How about you stop disagreeing with everyone when you have your own suggestion up and try to work towards finding the right answer rather than imposing your own (3 disagrees) come what may?
Gloria Palubjakova Dec 2, 2020:
Without an agreement to a preliminary discussion/argument by the parties
Eliza Hall Dec 2, 2020:
AllegroTrans is right re discussion I totally agree, AllegroTrans. This is nothing like the scenario SafeTex is picturing, where the parties are in chambers with the judge discussing something.

The entire point is that argument did NOT occur. They were not given the opportunity to present arguments on this issue (whether the two articles were identical), and according to the appellant, they should have been.
Eliza Hall Dec 2, 2020:
What happened To correct what SafeTex said, this isn't about something that "the court [or rather, as Mpoma pointed out, the arbiter] introduced into the proceedings."

Here's what happened, according to the party appealing against the arbitral award: The arbiter independently decided that two articles were identical, without giving the parties the opportunity to present their arguments on that issue.

The arbiter isn't supposed to do that. He's supposed to submit the issue to the parties (i.e., tell them that this is an issue that needs to be resolved), let the parties present their arguments, and consider their arguments before making his decision on that issue. That's what the "préalable" in the FR text is referring to: the parties were supposed to be allowed to make their arguments on this issue before the arbiter decided it.
AllegroTrans Dec 2, 2020:
@SafeTex This is not remotely lke a discussion in the judge's chambers (which in any event would not be adversial) - it's the whole fundamental principle of the parties' lawyers having the full right to produce arguments and the arbitrator being bound to give them that opportunity.
SafeTex Dec 2, 2020:
@Mpoma No probs. You go for what you think is best.

It's just that I see this in my head like in an American series where the judge asks to see the lawyers in his/her chambers and there follows a heated discussion/debate about the proceedings (a point of law)

Argument seems wrong in this type of context.

I said "discussion" but I see the argument [pun intended] for "debate" or "deliberation"
Mpoma (asker) Dec 2, 2020:
@SafeTex Yes, details of the point of law are given in my original question: he (it was indeed a single "he") is said to have considered two articles in a contract to be identical, and (allegedly) used this untested opinion in the statement of reasons of his award (sentence). Sorry to be finnickety, BTW, but this wasn't a "court", it was an arbitral/arbitration tribunal.

"Argument" can be both a countable and a non-countable noun in EN legalese: google "the process of legal argument". The specificity of these terms is pretty important: for example, judges don't get involved in "argument" but they obviously do get involved in "deliberation". The beef I have with EN "discussion" is that, unlike one of the 2 meanings of FR discussion, clearly there is nothing "adversarial" about it. In fact you can have "legal argument" which isn't adversarial: no doubt EN "discussion" would work better in those circs.
SafeTex Dec 2, 2020:
@ (h)all I've looked at this again and it's the COURT that introduced something into the proceedings. It is hard to believe that the arbitrator would introduce "an argument" as that is the lawyers' job. So I suspect it was a point of law (as Mpoma says) which changes things quite a bit. It would give rise to a legal debate (I said "discussion") rather than an argument from the lawyers
So the barrage of disagrees from someone who has an answer up themselves is very unhelpful as usual but that is the HALLmark of that person alas
AllegroTrans Dec 1, 2020:
Asker Having heard all submissions in the answers box, I adjudge and conclude that you have all the evidence and prior knowledge to know exactly how to translate this. So mote it be (as Rumpold would say)
Eliza Hall Dec 1, 2020:
@Mpoma - parties Re your comment on my proposed translation, the phrase does indeed refer to the parties. Your question includes these quotes from the document:

"sans le soumettre à la discussion préalable des parties"

"le soumette à la discussion préalable de XXX et de YYY". (XXX and YYY are the opposing parties)"

The issue is to be submitted to the parties for discussion (argument). If for some reason you want to retain the FR syntax, in which the object of the verb soumettre is discussion, you could say "submitted for argument by the parties." I don't personally think that flows as well with the structure of the sentence in English ("beforehand" works better after "argument" than after "parties"), but it's an option.

Of the 3 examples you've given, only the middle one doesn't include "the parties" as part of the phrase--so leave the term out of that one ("soumettre à la contradiction" > "submit for argument" or "submit to the adversarial process").
Mpoma (asker) Dec 1, 2020:
inclining towards "allow argument of it" + beforehand, before doing so (raising of his own motion), etc.
Mpoma (asker) Dec 1, 2020:
I don't mind at all ... but wrt soumettre, "submit for" and "subject to" are completely different meanings, and discussion also has two distinct meanings in French. Look up any ordinary dictionary: even non-legally, discussion also translates as "argument". Or check this out: https://fr.wiktionary.org/wiki/discussion (ignore 2. there, which is a specialist legal meaning). So in this instance it ain't true that "anything goes".
philgoddard Dec 1, 2020:
If you don't mind my saying so, I think you're overcomplicating things :-)
I don't believe there are any subtle nuances, and there are lots of ways you can translate it.
Mpoma (asker) Dec 1, 2020:
Adrian MM's "refer" To me this is pretty much synonymous with "submit for". I don't understand his remark about being unclear where things are going.

Soumettre does indeed have this legal meaning, for which "refer" may be a perfectly respectable choice, although I opine not here, because don't you generally "refer" to higher authority? Or at least some authority? But I'm doubtful you can "refer" to legal argument.

For this reason, my theory is that soumettre here actually means "to put to the test", one of its not-specifically-legal meanings. One possibility therefore is "subject to", as I said. Maybe that's the best there is.

A clue here that I may not be completely off my trolley with my idée fixe is the second quote: "to submit for adversarial appraisal" surely doesn't work (who receives???). But "to subject to adversarial appraisal" makes logical and contextual sense given the task of the appeal court.

Proposed translations

2 days 3 hrs
Selected

submit (the matter/issue) for prior argument (by the parties)

Methinks everyone is getting into a complete paddy over this one.
Maybe this version is clear.
Note from asker:
Thanks... I've now returned the job and translated as "observance of the principle of adversarial appraisal therefore requires in particular that the arbitration tribunal does not apply of its own motion any de facto or de jure ground without allowing argument of it by the parties before doing so;". From my perspective you've chosen the right word "argument" but haven't agreed with me that "soumettre à" is "putting to the test", not "submitting". To me there really is a difference, and one clue for me is that the indirect object of "soumettre à" is never an entity (party, counsel) here, but always a legal process (with hopefully an outcome).
Something went wrong...
2 KudoZ points awarded for this answer. Comment: "Thanks, the most helpful, but as I say not quite what I put in the end..."
7 mins

submitted for prior discussion

Seems okay to me
Note from asker:
Thanks but hmmm. For one thing, "discussion" is a faux ami here. The meaning of the whole expression is that something has to be "tested" using an indispensable legal procedure. And it wasn't: this is also the whole basis of the appeal.
Peer comment(s):
agree philgoddard : Nothing wrong with this, and I don't think "discussion" is a false friend.
6 hrs
Thanks Philgoddard
disagree Eliza Hall : In the legal context, we wouldn't say "discussion." When parties "discuss" something before a judge or arbiter, orally or in writing, it's just called "argument."
10 hrs
Except that here it was not the parties (as Mpoma pointed out to you too) but the tribunal arbitral who introduced something into the proceedings. Hence it's probably not an argument as such but more a point of law
neutral AllegroTrans : mmm...parties don't discuss matters before a court or tribunal, they submit arguments, language of the law is really needed here// points of law AND fact are contained within arguments
11 hrs
Except that here it was not the parties (as Mpoma pointed out to you too) but the tribunal arbitral who introduced something into the proceedings. Hence it's probably not an argument as such but more a point of law
Something went wrong...
-2
22 mins

To table for preliminary discussion

Also put like this?
Peer comment(s):
disagree Daryo : "to table" is the jargon of parliamentary procedure // won't work in this case
2 hrs
disagree Eliza Hall : Also, "to table" means opposite things in US vs. UK EN. https://separatedbyacommonlanguage.blogspot.com/2007/10/to-t...
4 hrs
neutral AllegroTrans : "to table" implies the procedure of meetings, inappropriate for a court or tribunal
11 hrs
Something went wrong...
5 hrs

submit [the matter/the issue/it] to the parties for argument beforehand

In this case, discussion means argument (argument in the legal sense). The parties are supposed to have the opportunity to make their arguments on this issue before the arbiter rules on the issue.

Préalable could be translated in various ways depending on its grammatical function. Here it means before the arbiter rules, but the sentence doesn't say that. Probably the best way to say "before X event" in English without mentioning the event itself is simply "beforehand": https://dictionary.cambridge.org/us/dictionary/english/befor...
Note from asker:
Thanks. But the French doesn't say "soumettre aux parties", it says "soumettre à la discussion". See my discussion entry if interested.
Peer comment(s):
disagree SafeTex : matter and issue are too vague. The judge seems to have submitted here a point of law or perhaps a jurisprudence, not some vague "matter" or "issue" and probably not an argument either but more likely a point of law. Courts don't argue cases
8 hrs
Wrong. Moyens de droit: legal issues. Moyens de fait: factual issues. https://www.dictionnaire-juridique.com/definition/moyens-et-...
agree Daryo : the issue being that the same "régime contractuel" was applied to two different clauses of the contract by the arbiter// "sans le soumettre à la discussion préalable des parties" = As far as I can see, that does amount to "soumettre aux parties"
21 hrs
Yes indeed. Thanks.
Something went wrong...
1 day 7 hrs

without agreeing to a preliminary discussion/argument

sans le soumettre à la discussion préalable/without agreeing to a preliminary discussion/argument.

--------------------------------------------------
Note added at 1 day 7 hrs (2020-12-02 18:08:35 GMT)
--------------------------------------------------

Without an agreement to a preliminary discussion/argument by the parties
Peer comment(s):
neutral Eliza Hall : Where are you getting the concept of "agreeing" or an "agreement"?
2 hrs
neutral AllegroTrans : "Agreement" is not being sought here
20 hrs
Something went wrong...
+1
5 days

allowing the parties to exchange their views

It's a simple procedure. And the adjudicators are arbitrators - not arbiters. Arbiters operate in non-legal contexts.
Peer comment(s):
agree Adrian MM. : Pity you didn't come in earlier with ECJ authority. It would have saved me the bother.
4 days
Something went wrong...
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