VYKUP (ВЫКУП)

Word Bank

What is VYKUP (ВЫКУП)?

BUYOUT, BUYBACK; REDEMPTION; PURCHASE, RE-PURCHASE, ACQUISITION; ENFRANCHISEMENT (of a leasehold)

In my experience, over the past five years alone this word has given rise to lively exchanges between counsel and judges / arbitrators on at least three separate occasions, including during the landmark Rusal v Crispian and Whiteleave hearings, which focused on the shareholdings in the giant Norilsk Nickel plant.

I am sure that if we were to poll all Russian-English legal interpreters, the number would be much greater.

On multiple occasions, I have been asked both to write expert witness reports about this word and to disambiguate this term for the benefit of the Court / Tribunal.

On one occasion, I was directed to “translate exactly what this word means, literally”, without the benefit of any context whatsoever.

The truth is, plucking this word out of context and trying to make sense of it is nearly mission impossible.

At another hearing, I was asked to translate — and again, translate “literally” — the locution “преимущественное право приобретения всех отчуждаемых акций”, which can be translated into English as either “the right of first refusal in respect of all of the shares being disposed of” or, if you wish, as “the pre-emption right to acquire / purchase all of the shares being disposed of”.

The reason for this request was that in the next paragraph the drafter literally said “преимущественное право выкупа в отношении отчуждаемых акций“, which can be translated as “a pre-emption right to buy out the shares being so disposed of”, or, if you will, “a pre-emption right to re-purchase the shares being so disposed of”, or even as “a pre-emption right to buy back the shares being so disposed of”.

The question before the Tribunal was whether the drafter deliberately intended to convey two different ideas by means of using slightly different language in the second case, or whether it was simply a question of sloppy drafting.

I think that, at a pinch, I could perhaps make a case that because the drafter wrote преимущественное право приобретения всех отчуждаемых акций (“pre-emption right to acquire all of the shares being disposed of”) in the first instance, whereas in the second instance he said преимущественное право выкупа в отношении отчуждаемых акций (“a pre-emption buy out / buy-back right WITH RESPECT TO the shares being so disposed of”) — in other words, because he added the locution “with respect to”, which is absent from the first example — there may be a reason to translate it the way I suggested above.

However, it would be a case of the translator taking his linguist’s hat off and putting on a lawyer’s hat.

Importantly, in my answer to the Tribunal’s question I did my best to make the following fundamental point: the translation will ultimately depend on the corporate legal context, as well as on how you construe the Russian sentence.

And the corporate legal context is unfortunately not something a translator is allowed to speculate about.

The problem, at least for legal interpreters, is two-fold.

Firstly, the Russian word vykup can have materially different meanings in a variety of strict legal contexts and scenarios.

Secondly, when not used in a strict legal sense, or when used loosely, it is capable of a fair amount of mimicry.

There have been instances of legal drafters using words such as priobreteniye / pokupka to denote purchase or acquisition, often for full value / full market price, and vykup (literally buy-out / buy-back) to denote acquisition for a token amount.

The problem with this attempt to draw a distinction, by linguistic means, between what are eminently legal concepts, is an exercise in futility, as it has no basis in law.

The usage then is purely ad hoc, and at the discretion of the drafter.

I believe it would be fair to say that, by and large, the Russian term vykup is used pretty much as a stand-in for a host of legal concepts, from a plain purchase or acquisition (when someone simply buys X), re-purchase (of something that had previously been sold to someone), all the way to buy-back (by a company of its shares), buy-out (of shareholder A’s shares by either shareholder B or an outside investor), enfranchisement (of a leasehold) or even redemption (of units / shares in an investment vehicle, such as a unit trust or investment fund).

Moreover, the verb “выкупить” often denotes the instance of buying assets from the bankruptcy estate or the deceased estate.

As a matter of fact, here it just means «купить», i.e. to buy (often at an auction), but for some reason people often call it «выкупить» (из имущества банкрота / из наследственной массы, etc). There is no legal rationale for this, it’s just popular usage, a fad if you will.

[This reminds me of another word widely used — and abused — by Russian speakers, including lawyers (!)

The word is pereustupka, literally “re-assignment”.

Stricto sensu, re-assignment is a follow-on assignment of a thing that has already been assigned at least once (in the meaning of the Latin legal term cessio).

That said — and professors at law schools keep reminding students that this is wrong — people persist in using “re-assignment” to denote a plain assignment (assignment of IP rights, assignment of a chose in action / actionable right, assignment of shares etc).]

At the end of the day, this is a matter of law, rather than linguistics.

A linguist can only do so much: the best we can do is translate the words and sentences being put to us to the best of our ability.

It is not open to linguists to second-guess what the legal drafter’s intentions were.

It is simply not our job to do so.

Rather, it is up to our lawyer clients to then try and make legal sense / draw legal inferences from what we tell them we see written in the original language.

Exactly which of the seven distinct meanings of the word vykup (see above) should be used in which instance is unfortunately not a question linguists are well equipped to answer.

Throughout my 20-year-long career as a legal interpreter, both in litigation and arbitration, I have always tried politely to explain this to my clients.

On one occasion, the President of the arbitral Tribunal actually asked me to explain the true position under Russian law, so exasperated was he with the confusion surrounding this word, which in that particular instance appeared to be dispositive of the proceedings’ outcome.

As it happened, for a few minutes I found myself in a position where I was effectively giving legal expert evidence.

Disappointingly, the matter was unfortunately left without resolution as I was lacking broad context.

In yet another matter, all hinged on the translation of the Russian corporate term [obratnyi] vykup, which, as discussed above and depending on the circumstances, can be variously translated as acquisition, purchase, re-purchase, buy-back, buy-out, enfranchisement, or redemption.

It all depends on the specific corporate scenario you are dealing with. Again, it’s not a linguistic issue, but rather a legal one.

What interpreters and translators ultimately do, on many occasions, is translate literally (but always using common sense and their best judgment): when the Russian text says priobreteniye or pokupka — we translate it as “purchase” or “acquisition”, and when the original uses vykup, then we translate it as “buy-out” (or buy-back, if it is clear from the context that the drafter meant a buyback by a company of its own shares).

Literally, obratnyi vykup translates as “reverse buyback” or “reverse buyout”, but as any translator worth his salt will confirm, a literal translation is quite often a mistranslation.

In many instances, the obratnyi (“reverse”) qualifier does not mean anything at all and can be easily disregarded.

But to the extent that one does need to draw a distinction between vykup and obratnyi vykup, I would venture to suggest buyback / buyout for vykup and repurchase for obratnyi vykup.

And one final comment, of a more stylistic nature: what often happens is that some translators try to offer a “nicer, smoother read”, deliberately anglicised to make the text consistent with the way English speakers are expected to express themselves, while others go with a translation which generally sticks closer to the original sentence structure.

Ironically, this is not necessarily a virtue.

Closeness to the Russian original often comes at the expense of literal calques and unnecessarily tedious, drawn-out repetitions.

After all, Russian is just about as verbose as German and its sentences are typically 20 per cent longer than English ones.

But at least the judge, arbitrator, counsel etc. will get a flavour of the Russian psyche and thought process.

My view is that an interpreter’s job is to “bridge the cultural gap”, i.e. to make the proverbial Russian soul digestible, transparent, and easy for native English speakers to understand.

However, the final decision is always a judgment call: in each and every case one ultimately needs to decide what is more important for the end user: understanding the intricacies of the Russian thought process, or getting an English sentence that reads smoothly (hence often anglicised).

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