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responsable synthèse
Affectio societatis
Feb 15, 2021 16:55
3 yrs ago
36 viewers *
French term

Différend avéré

French to English Law/Patents Law: Contract(s)
Hi everyone,

This is from a non-disclosure agreement, in the last section on application law and disputes. The full sentence is:

En cas de différend avéré, et avant toute action devant une juridiction, les Parties s’efforceront de régler le litige, en toute bonne foi, par une coopération entre les Directions de chaque Partie, notamment par le biais de l’organisation de réunions ad hoc.

As the paragraph before this is talking about attempting to solve disputes out of court / in an amicable manner, I'm thinking "En cas de différend avéré" just means "if this is not possible...".

Any ideas would be very welcome!

Cheers,
Nick
Proposed translations (English)
4 +2 Should a dispute arise
4 -1 Verified (proven) didpute
3 if the dispute cannot be settled amicably
3 -1 Entrenched disagreement
3 -2 undeniable difference (of opinion)

Discussion

Eliza Hall Feb 16, 2021:
Stages @ Conor, what you were picturing as stage 2 is not accurate. There's no point prior to mediation or litigation where a dispute becomes "fully formed, admitted, proven/proved." A dispute is just two parties to a contract disagreeing about what one or both of them is or was supposed to do. If they can't resolve that disagreement as businesspeople, with a couple of letters, phone calls or meetings, and even a "mean lawyer letter" or two doesn't fix the problem, then they proceed to dispute resolution. Nothing has to be proven, admitted, or "fully formed" (whatever that means) first.

Also, the two parties do not need to both "acknowledge that there is something that needs to be fixed" before they proceed to dispute resolution. Party A can accuse Party B of breaching the contract, and Party B can think the allegations are complete bullshit with no foundation--Party B can even think that Party A is making the accusation in bad faith--but Party B will get dragged into dispute resolution whether they acknowledge that anything is genuinely wrong or not.
Emmanuella Feb 16, 2021:
http://www.synonymo.fr/synonyme/avéré
Conor McAuley Feb 16, 2021:
If we can't agree on the basic facts, then... ...a discussion about interpretation and points of view becomes nigh on impossible:

https://www.wordreference.com/fren/différend

https://tinyurl.com/lid2ohz4
Emmanuella Feb 16, 2021:
https://kerryunderwood.wordpress.com/2019/05/30/employment-c...
Daryo Feb 16, 2021:
whatever are the specifics of this ST "a difference" and "un différend" are in fact false friends, and "avéré" is not any kind of "verification".
AllegroTrans Feb 15, 2021:
Conor These are "stages" - but of what? A dispute from A to Z. It's from a dispute resolution clause which gives the game away
Conor McAuley Feb 15, 2021:
My final two cents on this We really need the previous paragraph of course, but my gut is telling me that there are four stages in this disputes process:

1) The beginnings of a dispute, you didn't perform this undertaking, you delivered bolts that should have been green but they were blue, etc., unproven allegations

2) When the dispute becomes "avéré", fully-formed, admitted, recognised, proven/proved, and the two parties acknowledge that there is something that needs to be fixed -- start of this paragraph. Whatever word you use, choose it carefully.
I now think that Timothy's reading, and then later Emmanuella's, was and were spot-on.

3) Attempted out-of-court settlement -- rest of this para.

4) Courts (next paragraph -- cases shall be brought before etc.)
AllegroTrans Feb 15, 2021:
Synonyms of "avérer" Verbe

paraître, apparaître, se montrer, se révéler

https://www.synonymes.com/synonyme.php?mot=s'av�rer
SafeTex Feb 15, 2021:
@ Nicoals if you really have two distinct paragraphs, the first one speaking of "in an amicable manner" and then you have "différend avéré", then a very standard English solution is to say sth like. "Where such disputes cannot be resolved amicably...". This would be tantamount to "dans le cas d'un différend avéré" in the second paragraph.
Emmanuella Feb 15, 2021:
https://www.kobo.com/nz/en/ebook/fact-finding-in-collective-...

https://www.proz.com/kudoz/french-to-english/business-commer...
Emmanuella Feb 15, 2021:
@ Maro Solinas - avéré , soit établi et non pas ' s'il persiste'. De même, les faits avérés. Une expression fréquemment utilisée dans les contrats.
Marco Solinas Feb 15, 2021:
To Asker What about something along the lines of "If the dispute persists (or continues),...". Taking into account what come in the earlier paragraph.
philgoddard Feb 15, 2021:
I agree that "if this is not possible" would be an acceptable translation given the previous sentence.

Proposed translations

+2
1 hr
French term (edited): En cas de différend avéré
Selected

Should a dispute arise

"avéré" here doesn't really mean proven or undeniable
Think of the verb: avérer = to turn out to be, to occur, to happen etc.

--------------------------------------------------
Note added at 3 hrs (2021-02-15 20:02:55 GMT)
--------------------------------------------------

www.lexisnexis.co.uk › legal › drafting-the-adr-clause
Increasingly over the past decade, commercial contracts contain a provision stating that should a dispute arise out of the contract, the parties will attempt to settle ...

--------------------------------------------------
Note added at 3 hrs (2021-02-15 20:04:09 GMT)
--------------------------------------------------

bs02 request for quotation - City of Greater Geraldton
www.cgg.wa.gov.au › cgg › Assets › ClientData › Forms
Should a dispute arise during the provision of the service, both parties commit to attempt to resolve the dispute in good faith. ii. Where dispute resolution is not ...
Peer comment(s):
disagree Conor McAuley : Interesting point / What do you then use for "litige" later, though? / Avéré is in there to do something though! I think the way the question was asked (like another recent legal one here) affected our answers, in a bad way.
8 mins
Personally, I would use "dispute" for both différend and litige, a case of Fr having two words where En has one
agree SafeTex : Ths is the term I usually use or something very similar
38 mins
thanks
neutral Emmanuella : cf. dictionary
39 mins
"soit établi" (your own words) but we need natural English as actually used in legal documents
agree Eliza Hall : Absolutely, yes. This is what these contracts always say in EN. The FR means "in the event a dispute is recognized" or "comes to be"--which we wouldn't say in EN.
1 hr
thanks
agree Daryo : strictly speaking, here "(un différend) s'est avéré" = ...has shown itself; become visible/obvious; manifested itself; revealed itself ... good way of avoiding a literal translation that would sound strange.
2 hrs
Yes, literal = unnatural here, thanks
neutral ph-b (X) : The fact that the parties have not been able to settle amicably (cf. Nicholas's info in his intro) suggests that the dispute has already arisen.
1 day 34 mins
Possibly, but that doesn't invalidate saying "should a dispute arise" imo
Something went wrong...
4 KudoZ points awarded for this answer. Comment: "Selected automatically based on peer agreement."
-2
53 mins

undeniable difference (of opinion)


You often get "faits établis" (established facts) in court proceedings, but "established" doesn't fit in here.

See "incontestable" here, Larousse definition of "avéré": https://www.larousse.fr/dictionnaires/francais/être_avéré/70...

undebiable -- not just a tiff

Use "difference" here, because you'll need "dispute" for "litige, just further on.

--------------------------------------------------
Note added at 1 hr (2021-02-15 18:03:03 GMT)
--------------------------------------------------


Correction: undeniable

I really like Marco's solution, but I feel it's just too big a step away from the exact meaning in the source text.


Peer comment(s):
disagree Emmanuella : Cf. encadré
1 hr
According to you I should have stuck with my "established" = proven. You have a point.
disagree Daryo : here "un différend" is far stronger than a "difference (of opinion)" in some academic debate - it's a conflict of interests between the parties that might be resolved only through some form of litigation or arbitration.
2 hrs
Disagreement then. Fundamentally the same thing: "Désaccord, contestation résultant d'une différence d'opinion, d'intérêt, etc"
neutral AllegroTrans : This just doesm't sound natural, it's not a mere difference of opinion it's a dispute between parties to a contract, both before and during litigation + différend/difference are bordering on faux-amis methinks
2 hrs
Established or proven, I'm with Emmanuella on this point, back where my thought-process began!
Something went wrong...
-1
5 mins

Verified (proven) didpute

“ in the event of a verified dispute....”

--------------------------------------------------
Note added at 1 hr (2021-02-15 18:04:54 GMT)
--------------------------------------------------

DISPUTE...apologies
Peer comment(s):
agree Emmanuella
1 hr
Merci Emmanuella
disagree Eliza Hall : That doesn't mean anything, though. A dispute is just two parties disagreeing. There's nothing to prove or verify--if the parties disagree, they disagree.
2 hrs
disagree Daryo : "avéré" is not any kind of "verification", that meaning makes no sense anyway.
2 hrs
disagree AllegroTrans : A dispute isn't "proven" it simply "is"
2 hrs
agree Conor McAuley : I apologise for jumping in after you -- your wording, for me, isn't quite right, but your basic idea and conclusion ARE right
6 hrs
Something went wrong...
-1
2 hrs

Entrenched disagreement

Proven, as in the first weblink, would indeed raise all kinds of evidential problems, such as by whom, as judged by what arbiter and to what standard of proof.

Anyway, I suggest entrenched rather than intractable or the ambiguity of settled: il est avéré / constant que.... > it is settled / common ground that...

En cas de différend avéré: if / it is established that/ there is an intractable dispute or disagreement...

--------------------------------------------------
Note added at 2 heures (2021-02-15 19:01:15 GMT)
--------------------------------------------------

I agree with AT that avéré acts here like the verb *s'avérer que*, except that the dispute - according to the preceding part quoted - has already arisen.
Example sentence:

The DOJ states its intention of the Scheme as being "… to offer a speedy and cost effective means to resolve disputes among parties, avoiding disputes and differences from being entrenched...'

Reference:

http://www.proz.com/kudoz/french-to-english/business-commerce-general/5279137-dans-le-cas-avéré-pour-des-motifs-graves.html

Peer comment(s):
disagree AllegroTrans : I can't see "entrenched" here, either explicit or implicit
58 mins
neutral Daryo : you dont really need the "entrenched" part - all the ST says is that parties are simply in disagreement / got a dispute on their hands, no need to additionally paint them like some kind of obstinate mules ...
1 hr
Something went wrong...
17 hrs
French term (edited): en cas de différend avéré

if the dispute cannot be settled amicably


"The Parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to this Agreement through negotiations between a director of each of the Parties with authority to settle the relevant dispute. If the dispute cannot be settled amicably within fourteen (14) days from the date on which either Party has served written notice on the other of the dispute then the remaining provisions of this Clause [ ] shall apply."
(https://ppp.worldbank.org/public-private-partnership/ppp-ove...

Avérer is not just "arise". It has to do with "being confirmed/the existence of which has been verified": B.− [Le suj. désigne une pers. ou un inanimé] Faire reconnaître la vérité d'une chose par des paroles, un comportement, une action, un écrit. Avérer un fait. (https://www.cnrtl.fr/definition/avérer)

The issue I have with AllegroTrans's translation is that I understand it, admittedly as a non-native, as if that dispute has only just appeared and has not been mentioned previously. In fact, his examples show that a translation using "arise" is used at the beginning of the dispute-solving process: if a dispute arises, the parties will attempt to solve it amicably, and if they can't, then they will...

In the source text, however, the dispute-solving process has not just started, it has been there for some time already since according to what Nicholas tells us, the parties have not been able to settle it.

It seems to me that the example I quote reflects that very scenario and I imagine that lawyers (etc.) at the World Bank can be trusted where terminology is concerned.

Medium confidence level in case I'm misreading/misunderstanding AllegroTrans's translation.

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Note added at 17 hrs (2021-02-16 10:16:02 GMT)
--------------------------------------------------

Oops - just realised that being a native speaker is a criterion!
Peer comment(s):
neutral AllegroTrans : It may have this underlying implication (depending on the previous para which we can't see) but I don't think this is what "avéré" means
9 hrs
Something went wrong...
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