What it is
Boilerplate is the part of a contract that is inserted rather than drafted: the block on governing law, on force majeure, on which document prevails. It is written once and used again, and the reuse is the point: a tested clause is worth more than a new one.
Two populations sit inside that description and do not behave alike. Some clause sets are published by a body that states what they are for and on what terms they may be used. Others circulate because they have always circulated, and nobody can say what they mean beyond the words. The first is fixed by whatever published it; the second is fixed by nothing, and calling it standard describes how widely it travels rather than what backs it.
The definitions article is a clause as well and has its own record. Where a clause carries a term, the term record keeps the term and this record keeps the sentence around it.
Where the fixity comes from
Fixity here is a property of the instrument and not of the genre, and one act makes that visible.
The standard contractual clauses annexed to Commission Implementing Decision (EU) 2021/914 are the operative text of the act in each language version. The Dutch clause is therefore not a translation of the English clause; both are the act. Clause 2 states the condition in its own words: the clauses furnish the safeguards they claim "provided they are not modified, except to select the appropriate Module(s)", which the Dutch version prints as "mits deze niet worden gewijzigd, behalve om de geschikte module(s) te selecteren". Nothing short of amending the Decision moves that wording, and a party who rewrites it loses what the Decision confers.
Beside it stands the institutional case. The International Chamber of Commerce publishes its 2020 force majeure and hardship clauses through a language selector offering seven languages. None of its own pages opened for this record says whether the versions other than English are authentic, authoritative or informative, or which one governs if two diverge. That silence is the difference between the two cases: it leaves the standing of the target wording to be settled in the contract rather than by the publisher.
A third warrant is measured rather than laid down. Biel, Koźbiał and Wasilewska found that translated institutional genres develop formulaic profiles of their own, levelled out against the source-language corpora and overlapping only minimally with domestic genres. The measurement is of lexical bundles in Polish and does not carry to another language on its own.
Consequences for translation
Which of the two populations a clause belongs to is not stated in the clause.
- A published clause set is retrieved and placed, not rendered. Translating one afresh produces a variant of a binding instrument that reads like the instrument and is not it.
- Where the instrument states its own invariability, an improvement is a compliance defect rather than a stylistic liberty, and a reviser can flag it on that ground.
- The unit noun belongs to the clause. One version of the annex renames it while two others keep it, so a contract incorporating a numbered clause by reference is pointing at a heading its target version may not print.
- A clause circulating on habit alone has no such warrant, and the target community may hold no counterpart. What goes in instead is a paraphrase, and it should read as one rather than borrow a model's authority.
Examples
EN>NL
- Source: Clause 5 Hierarchy
- Target: Bepaling 5 Hiërarchie
- Comment: Implementing Decision (EU) 2021/914, Annex, English and Dutch versions. Dutch renames the unit itself, so the numbered heading a contract points at is not the heading the Dutch act prints. A translator who left Clause 5 standing would have written a reference that resolves against nothing.
EN>FR
- Source: Clause 5 Hierarchy
- Target: Clause 5 Hiérarchie
- Comment: Same annex, French version. The unit noun survives untouched and only the subject-matter word moves. That settles the direction: the renaming belongs to the Dutch version, not to annexed clauses in general.
EN>DE
- Source: Clause 5 Hierarchy
- Target: Klausel 5 Vorrang
- Comment: Same annex once more. German keeps a cognate of the unit noun, so three of the four versions leave the reference recoverable and one does not. Which version a contract incorporates is a fact about that contract.
References
- Biel, Ł., Koźbiał, D. and Wasilewska, K. (2019). "The formulaicity of translations across EU institutional genres: a corpus-driven analysis of lexical bundles in translated and non-translated language." Translation Spaces 8(1), 67 to 92.
- ICC Force Majeure and Hardship Clauses, March 2020. Paris: International Chamber of Commerce. Published with a language selector offering English, French, German, Italian, Portuguese, Spanish and Turkish.
- Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, Article 1 and Annex, Clauses 2 and 5, English, Dutch, French and German language versions.