The legal standing of the serial comma

« previous post | next post »

[This is a guest post by Mark Cohen]

I am wondering if members of this group have had experience with translating the Chinese serial comma or dùnhào 顿号  [、] ("the caesura sign; a slight-pause mark used to set off items in a series; punctuation mark used between parallel words or short phrases; sign of coordination; ideographic comma; the Chinese comma (、) used for separating items in a list")  In 2007, I was involved in a WTO case where I negotiated an English translation for a dunhao that ended up appearing as a footnote in the panel decision regarding a criminal law.  The statutory language was "fùzhì , fāxíng 复制  、  发行" of copyrighted works.  The question at that time was whether China required  "making" or "selling" [in the English text]  of a copyrighted work or whether both acts were required under the criminal law.  See World Trade Organization, China-Measures Affecting the Protection and Enforcement of Intellectual Property Rights, Report of the Panel, WT/DS/362/5 (26 Jan. 2009) , at fn. 82 and accompanying text:  “There is neither "and" or "or" between "making" and "selling", only a Chinese repetitive comma (、) or dùnhào 顿号 (lit., "pause" + "mark; symbol"),  which has no precise English equivalent.”  The panel translated the “serial comma” with a slash “/” which basically preserved this ambiguity. 

I am wondering if others have run across similar issues, including in translations of treaties or other international legal texts.


Selected readings

[Thanks to Don Clarke]


  1. Allen Thrasher said,

    June 22, 2023 @ 9:25 am

    In any case, I hate the slash in English. It is ambiguous as to whether it means ‘and,’ ‘or,’ ‘and/or,’ ‘that is’, ‘also known as,’ or possibly some other things that don’t come to mind at the moment.

  2. AntC said,

    June 22, 2023 @ 10:04 am

    This may be tangential, but the general bias with translations of colonial or imposed constitutional documents is to an interpretation that favours the weaker party — that is, weaker as at the time of signing.

    On grounds the colonizers were probably being duplicitous: they probably translated the source text in their language of power in a way that was misleading or weakened the colonised's rights.

    This has applied in New Zealand with indigenous Māori rights under the Treaty of Waitangi q.v.

  3. Jonathan Smith said,

    June 22, 2023 @ 10:20 am

    I see the translated text (a list of four "acts of infringement") has two instances of "reproducing [/] distributing", one of "audio recording [/] video recording", and one of "making, selling", all of which footnotes indicate correspond to the serial comma in the original. (Incidentally the Chinese text given in the post represents the first, not the last.)

    In terms of (under)specification of some logical form here, the serial comma is not ambiguous: A and B are separately forbidden. (Cf. "audio recording [/] video recording," where it would be perverse to claim that only making both violates the clause.) But the main point is probably that inserting English "and" or "or" would hardly eliminate ambiguity; that's natural language.

  4. J.W. Brewer said,

    June 22, 2023 @ 10:25 am

    It's not particularly unusual for a statute to be facially ambiguous in ways like that (are you liable if you do either A or B but don't do both?) to readers of their original languages. The ambiguity is resolved not (primarily) by abstract arguments about how to best parse arguably ambiguous punctuation, but by some sort of authoritative or quasi-authoritative institution in the relevant society, which could be the court system or could be some sort of enforcement agency, giving quasi-authoritative guidance as to how the statute will be interpreted in practice going forward. You would think "how will the relevant PRC authorities predictably construe this statute for enforcement purposes in the future" should/would be a question of more interest to a WTO panel than "what exact English wording is, in the abstract, the most faithful translation of the Mandarin wording of the statute," but this is not an area in which I have any expertise, so my intuition could be wrong there.

    To AntC's point, in this particular context I strongly suspect the most relevant concern about "duplicity" would be driven by the well-known fact that countries like the PRC were under considerable Western pressure to crack down on alleged local infringement of the alleged IP rights of foreign/Western businesses, raising the plausible possibility that the PRC would respond by enacting laws that "sounded good" in terms of cracking down on infringement in the way the foreigners claimed to want if you just looked at the statutory text in a vacuum but would not in practice be likely to be enforced with the rigor the foreigners hoped for.

  5. Taylor, Philip said,

    June 22, 2023 @ 2:21 pm

    "It's not particularly unusual for a statute to be facially ambiguous" — what does "facially" mean in this conrext, JWB ? Is it the non-Latin equivalent of prima facie, or am I barking up the wrong tree ?

  6. J.W. Brewer said,

    June 22, 2023 @ 2:43 pm

    "Facially" meaning just looking at the face of the document, i.e. reading the words themselves without investigating the broader context in which they came to be included in a statute the legislature chose to enact – the broader context will sometimes make it clear that seemingly ambiguous language can only be sensibly interpreted one way; other times the broader context may make things even more puzzling and confused. Sometimes the broader context will also include ambiguity-resolving rules of interpretation specific to a particular country's legal culture and institutions (which the legislature is politely assumed to be aware of when wording statutes). But thinking for example "if this text as translated into English were an American statute, an American judge would almost certainly resolve the ambiguity by interpreting the statute to mean liability only exists when a defendant does both A and B" could be dangerous in this context, because there's no particular reason to think any relevant decision-maker in the PRC would be using the same approach to resolve any parallel ambiguity in the Mandarin wording.

  7. MattF said,

    June 22, 2023 @ 5:47 pm

    As a certified Quantum Mechanic, I interpret ‘/‘ as superposition.

  8. Jenny Chu said,

    June 22, 2023 @ 10:46 pm

    @MattF – as a quantum mechanic, are you the one I'll need to call in the future when my quantum computer needs an oil change?

  9. Taylor, Philip said,

    June 23, 2023 @ 2:45 am

    Thank you for the clarification, JWB. It would, then, appear prima facie, to be a non-Latin synonym of prima facie, as I initially suspected. Prima facie can be defined as :

    At first sight, or on the face of it, or as it appears without investigation. A case which is supported by prima facie evidence will nevertheless be dismissed unless the party bearing the legal burden of proof can discharge that burden by adducing appropriate evidence.

  10. Bloix said,

    June 24, 2023 @ 8:26 am

    A member of the Society of Will Writers (a UK professional organization) explains –
    – that traditionally all punctuation was omitted from legal documents like legislation, wills, property conveyances, contracts, and the like. The thinking was that a good draftsperson can convey a precise meaning more accurately without it. IMHO, this is true only in the sense that another experienced draftsperson may be able to extract a clear and precise meaning from your unpunctuated document. If your goal is to draft something that a lay person can understand, punctuation is essential. The will-writer (presumably a solicitor) is grudgingly willing to compromise, saying that although punctuation "makes a document easier to read and can also convey meaning," it's preferable to use it "only for the former so that the removal of the punctuation will not alter the meaning of the document."

  11. chris said,

    June 26, 2023 @ 2:18 am

    @Jenny Chu: Unfortunately, before you open the box your quantum computer both does and does not need an oil change, and after you have opened the box to observe, you have voided the warranty.

    But the even more inconvenient thing about hiring a quantum mechanic to make a service call is that either you don't know how close they are to the work site, or you don't know how fast they are moving to get there.

  12. Mark Cohen said,

    July 25, 2023 @ 1:53 pm

    Thank you for these comments – the footnote in the WTO decision is off – but you can easily search for the correct footnote. Keep in mind that in the original dispute – reproduction/distribution is in the interpretation of criminal law by satisfying numerical thresholds. Thus the "and" and "or" and the ambiguity are all significant. For example, if the criminal threshold is 500 copies, can it be satisfied by 500 "reproductions" or 500 "distributions"? Or can it be satisifed by 250 copies and 250 distributions? Or does it require 500 reproductions that are also distributed? Since the WTO requirement is to criminalize "commercial scale" copyright infringement, would 250 reproductions and distributions be non-commercial in scale, and thus China – if it wanted to implement the minimum possible – would need to have 500 reproductions or distributions ( and need not go any lower (the and/or interpretation preserves that possibility).

RSS feed for comments on this post