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(Amended
and adopted at the Sixth meeting of the Second Session of the Beijing
Arbitration Commission on 25 April 2001 and implemented on 1 August
2001)
Chapter
I General Provisions
Article
1
These
Rules are formulated by the Beijing Arbitration Commission (hereinafter
referred to as the "Commission") in accordance with the
relevant provisions of the Arbitration Law of the People's Republic
of China (hereinafter referred to as the "Arbitration Law")
and the Civil Procedures Law of the People's Republic of China (hereinafter
referred to as the "Civil Procedures Law").
Article
2
The
Commission provides independent, impartial and efficient settlement
by arbitration of contractual disputes and other disputes related
to property rights and interests arising between citizens, legal
persons and other organizations that share equal standing.
The
Commission does not accept applications for arbitration involving
the following disputes:
(1)
those involving marriage, adoption, guardianship, support or inheritance;
(2)
those of an administrative nature that shall be handled by administrative
authorities in accordance with law; and
(3)
those labor disputes and internal contractual disputes within agricultural
collective economic organizations.
Article
3
The
Commission shall consist of one Chairman, four Vice-Chairmen and
eight members. The Chairman shall perform all duties designated
to him/her by these Rules. The Vice-Chairmen and the Secretary General,
if so authorized by the Chairman, may also perform the duties of
the Chairman.
The
Commission shall establish a Commission administrative office, which
shall be responsible for handling the daily administrative affairs
of the Commission under the direction of the Secretary General.
Article
4
The
Commission shall set up a registry of arbitrators, which shall include
a list of arbitrators handling disputes of an international nature.
Where necessary, the Commission may also set up a list of arbitrators
for specialized fields.
The
arbitrators shall be selected by the Commission from Chinese and
foreign professionals who have specialized knowledge and practical
experience in the areas of law, economics and trade.
Article
5
By
agreeing to submit disputes to the Commission for arbitration, the
parties shall be deemed to have agreed to carry out arbitration
in accordance with these Rules, unless otherwise agreed to by the
parties and consented to by the Commission.
Chapter
II Arbitration Agreement
Article
6
When
the parties choose to settle a dispute by arbitration, they must
voluntarily enter into an Arbitration Agreement. If a party applies
for arbitration in the absence of such an Arbitration Agreement,
the Commission will not accept the case.
Article
7
The
term Arbitration Agreement includes arbitration clauses contained
in contracts or other written agreements, whether concluded prior
to or after the dispute arises, indicating the parties' will to
apply for arbitration.
An
Arbitration Agreement shall contain the following provisions, namely:
(1)
an expression of intention to apply for arbitration;
(2)
the matters for arbitration; and
(3)
an expression of intention to choose the Commission as the arbitration
organization.
Article
8
An
Arbitration Agreement exists independently. The validity of an Arbitration
Agreement shall not be affected by the amendments, termination or
invalidation of a contract, or the lack thereof.
The
Tribunal has the right to determine the validity of a contract.
Article
9
The
parties may challenge the validity of an Arbitration Agreement or
the Tribunal's jurisdiction over the case for arbitration. If a
party challenges the validity of an Arbitration Agreement or the
Tribunal's jurisdiction over a case for arbitration, it shall submit
such challenge in writing prior to the first hearing of the Tribunal.
If
the parties agree not to have hearings, the request shall be made
in writing before the first submission of the Statement of Defense.
If
a party has not submitted a challenge to the validity of the Arbitration
Agreement or to the Tribunal's jurisdiction over the case for arbitration
in accordance with the previous paragraphs, it shall be deemed to
have acknowledged the validity of the Arbitration Agreement and
the Tribunal's jurisdiction over the case for arbitration.
Article
10
If
a party challenges the validity of an Arbitration Agreement, it
may request the Commission to make a decision or apply to a people's
court for a ruling. If one of the parties requests the Commission
to make a decision and the other party applies to the people's court
for a ruling, the ruling shall be made by the people's court.
If
the parties challenge the Tribunal's jurisdiction over the case
for arbitration, the Commission may render a decision or authorize
the Tribunal to render a decision.
Chapter
III Application and Acceptance
Article
11
In
order to apply for arbitration, the following requirements must
be satisfied, namely that:
(1)
there must be an Arbitration Agreement;
(2)
there must be a specific Statement of Claim, as well as facts and
reasons upon which the claim is based; and
(3)
the dispute must fall within the jurisdiction of the Commission.
Article
12
In
order to apply for arbitration, a Claimant shall submit the following
documents to the Commission, namely:
(1)
the Arbitration Agreement;
(2)
an Application for Arbitration and copies thereof, which shall specify:
A
the names, gender, ages, occupations, work units and addresses of
the Claimant, Respondent and their designated representatives and,
where a party is a legal person or other organization, the name,
address, postal code, and telephone number of the organization and
the name of its legal representative or name and position of the
chief responsible person;
B
the Statement of Claim, as well as the facts and reasons upon which
it is based; and
C
the evidence, its source and the name and address of the witnesses.
The
Application for Arbitration shall be signed by, or bear the seal
of, the Claimant or the representative authorized by the Claimant;
and
(3)
documentary evidence upon which the Statement of Claim is based.
Article
13
At
the time of submission of the Application for Arbitration, the Claimant
shall pay in advance the application fee and the administration
fee in accordance with the rates set by the Commission.
If
the Claimant has difficulty in paying the arbitration fees in advance,
the Claimant may apply to the Commission for a delay of payment,
which is subject to the approval of the Commission. If the Claimant
neither pays the arbitration fee in advance nor applies for a delay
of payment of the same, the Claimant shall be deemed to have withdrawn
the Application for Arbitration.
Article
14
Within
five days after the receipt of an Application for Arbitration, if
the Commission determines that the it satisfies the conditions for
acceptance, it shall accept the Application for Arbitration and
notify the Claimant of the same. If the Commission determines that
the application does not comply with the conditions for acceptance,
it shall inform the Claimant in writing of its rejection and provide
an explanation for the same.
If
after receiving an Application for Arbitration, the Commission determines
that it does not satisfy the requirements stipulated in Article
12 of these Rules, it may require the Claimant to amend the Application
for Arbitration. The date on which the amended Application for Arbitration
is filed shall be deemed to be the date of filing of the Application
for Arbitration.
Article
15
Within
10 days after accepting an Application for Arbitration, the Commission
shall deliver to the Claimant a copy of these Rules and the registry
of arbitrators, and to the Respondent a copy of the Application
for Arbitration together with these Rules and the registry of arbitrators.
Within
15 days after receiving the copy of the Application for Arbitration,
the Respondent shall submit a written Statement of Defense to the
Commission. The Commission shall deliver to the Claimant a copy
of the written Statement of Defense within five days following the
receipt thereof. The failure of the Respondent to file a Statement
of Defense shall in no way affect the arbitral procedures.
Article
16
The
Claimant may reject or amend the Statement of Claim. The Respondent
may accept or reject the Statement of Claim. Any counterclaims made
by the Respondent shall be submitted to the Commission in writing
no later than 15 days from the date of receipt of the copy of the
Application for Arbitration. The Tribunal may decide whether to
accept a counterclaim that is submitted after the expiration of
the stipulated time limit. All other requirements for counterclaims
shall be subject to the same provisions as for those for the Application
for Arbitration in these Rules.
The
Commission shall deliver to the Claimant a copy of the counterclaim
application within five days after the date of receipt of the counterclaim
application.
The
Claimant shall submit a written Statement of Defense to the Commission
within 15 days from the date of receipt of the copy of the counterclaim
application. The arbitral procedures shall not be affected if the
Claimant fails to submit a written Statement of Defense to the Commission.
Article
17
Any
request by the Claimant to amend its claims or by the Respondent
to amend its counterclaims shall be made in written form. The Tribunal
shall decide whether to accept a request for amendment.
Where
the Tribunal decides to accept a request of one party for amendment,
the other party shall submit in writing a Statement of Defense with
regard to the amended matters within 15 days of receipt of the application
for amendment of a claim or counterclaim.
Article
18
Any
Application for Arbitration, Statement of Defense, application for
counterclaims and relevant documentary evidence shall be supplied
in five copies. If there are more than two parties involved, additional
copies shall be provided accordingly. If the Tribunal is composed
of only one arbitrator, the number of copies can be reduced by two.
Article
19
A
party may apply for preservation of property if it becomes impossible
or difficult to enforce an award due to actions of the other party
or for other reasons. If a party applies for preservation of property,
the Commission shall submit the application to the people's court
of the Respondent's domicile or of the location of the property
in question.
If
the application for preservation of property is made in error, the
applicant for the preservation of property shall compensate the
other party for any losses incurred due to the preservation of property.
Article
20
Where
evidence may be lost or be difficult to obtain at a later time,
the relevant party may apply for preservation of evidence. Where
a party applies for preservation of evidence, the Commission shall
submit the application for a ruling to the lower people's court
of the location of the evidence.
Article
21
A
party may authorize a lawyer or other representatives to represent
it in arbitral procedures. Generally, the number of arbitration
representatives designated by a party shall not exceed three. If
a party has a good cause to increase the number of its arbitration
representatives, it may do so as appropriate upon the approval of
the Tribunal.
If
a party authorizes a representative to represent it for arbitration
purposes, it shall submit a power of attorney to the Commission.
The power of attorney shall set forth the matters entrusted and
the scope of authority.
Chapter
IV Composition of the Tribunal
Article
22
The
parties shall each appoint one arbitrator from the Commission's
registry of arbitrators or entrust the Chairman of the Commission
to designate one. The parties shall jointly appoint or jointly entrust
the Chairman of the Commission to designate a third arbitrator,
who will serve as the chief arbitrator.
Article
23
If,
within 15 days after the date on which the Respondent receives the
Notice Requesting Defense, the parties fail to appoint arbitrators
from the Commission's registry of arbitrators or to entrust the
Chairman of the Commission to designate arbitrators, and fail to
appoint jointly the third arbitrator or to entrust jointly the Chairman
of the Commission to designate the third arbitrator, the Chairman
of the Commission shall designate the arbitrators.
Article
24
When
one of the parties is composed of multiple individuals and/or entities,
the individuals and/or entities shall, through consultations, jointly
appoint or jointly entrust the Chairman of the Commission to designate
an arbitrator. Where the individuals and/or entities have not reached
an agreement to appoint or entrust the Chairman of the Commission
to designate an arbitrator within 15 days from the date of receipt
of notice of the arbitration, the arbitrator shall be designated
by the Chairman of the Commission.
Article
25
The
Commission shall, within five days of the date of formation of the
Tribunal, notify the parties in writing of the composition of the
Tribunal.
Article
26
Once
appointed by the parties or designated by the Chairman, the arbitrators
shall ensure that they have sufficient time to arbitrate the dispute,
guarantee an impartial review of the case in question, and shall
sign a statement of declaration certifying the same. The statement
of declaration shall be delivered to each party.
Article
27
Where
an arbitrator is unable to perform his/her duty due to any one of
the following circumstances, and if such arbitrator was appointed
by one of the parties, the relevant party shall, within five days
of the date of receipt of a notice from the Commission, appoint
another arbitrator in accordance with the procedures stipulated
in Articles 22, 23, 24 of these Rules; if such arbitrator was designated
by the Chairman, the Chairman shall designate another arbitrator
and notify the parties of the new arbitrator within five days thereafter,
namely, where:
(1)
he/she is on a business trip or abroad and not available to handle
the case;
(2)
he/she is unable to serve due to illness;
(3)
he/she has been required to withdraw from the Tribunal pursuant
to law;
(4)
he/she has been dismissed by the Commission, unless the parties
have agreed to have him/her to continue with the arbitration; or
(5)
he/she has other circumstances which may prevent him/her from fulfilling
his/her duty.
After
the appointment of a new arbitrator, the parties may request that
the arbitral procedures previously carried out be repeated. The
Tribunal shall decide whether such a request is admissible. The
Tribunal may also decide on its own discretion whether the previous
arbitral procedures should be repeated.
Article
28
In
any of the following circumstances, an arbitrator shall, on his/her
own initiative, make disclosure to the Commission and request to
withdraw, and the parties shall also have the right to challenge
the arbitrator and request his/her withdrawal, namely, where:
(1)
the arbitrator is a close relative of one of the parties or of the
party's representative;
(2)
the arbitrator has an interest in the case;
(3)
the arbitrator has any other relationship with one of the parties
involved or its representative such that the impartiality of the
arbitration may be affected; or
(4)
the arbitrator has met privately with a party involved or its representative
or has accepted entertainment or gifts from a party involved or
its representative.
The
phrase "other relationship" mentioned in paragraph (3)
above of this Article shall include any of the following situations,
namely, where:
A
the arbitrator has previously advised on the case;
B
the arbitrator is the legal counsel or representative of one of
the parties, or acted as the legal counsel of one of the parties
within the previous two years;
C
the arbitrator works, or has worked within the previous two years,
in the same work unit with one of the parties or its representative;
D
the arbitrator has recommended or introduced a representative to
a party involved in the arbitration;
E
the arbitrator has acted as a witness, appraiser, inspector, representative
or agent ad litem of the same case or any related cases;
F
there exist other matters that may affect the impartiality of the
arbitration.
Article
29
If
the party has good cause to doubt the impartiality and independence
of the appointed or designated arbitrator, it may request the withdrawal
of such arbitrator by submitting a written request to the Commission,
provided that the party shall provide the facts and reasons for
the withdrawal request, and supported by evidence.
The
challenge of an arbitrator and request for his/her withdrawal shall
be submitted in writing prior to the first hearing. If the grounds
for the challenge are discovered after the first hearing, the challenge
may be submitted before the closing of the final hearing.
Article
30
The
Chairman of the Commission shall decide whether an arbitrator should
withdraw from the Tribunal. Where the Chairman serves as an arbitrator,
his/her withdrawal shall be decided by a plenary session of the
Commission.
Article
31
If,
subsequent to being notified of the composition of the Tribunal,
a party engages a representative whose participation results in
an arbitrator meeting the conditions for withdrawal set forth in
Article 28 hereof, the party shall be deemed to have waived its
right to challenge the arbitrator on the grounds thereof. However,
the said engagement shall not constitute a waiver of the other party's
right to challenge the arbitrator.
If
the hearing of the case is postponed due to the aforementioned reasons,
the party responsible for the withdrawal of the arbitrator shall
bear the corresponding costs.
Article
32
Upon
accepting the parties' appointment or the Chairman's designation,
the arbitrator shall perform his/her duty impartially, diligently,
and efficiently. If, during the course of the arbitration, an arbitrator
is unable to continue the arbitration due to reasons other than
those stated in items (1) to (4) of the first paragraph of Article
27, he/she may apply to the Commission for leave. The Chairman shall
determine whether the leave application is admissible. The arbitrator
shall continue to take part in the hearings until the application
is approved by the Chairman.
Article
33
If
an arbitrator has met privately with one of the parties or its representative,
or has accepted entertainment or gifts from one of the parties or
its representative with serious consequences, or while arbitrating
a case has sought or accepted a bribe, engaged in malpractice for
his/her own benefit or made an award in disregard of the law, he/she
shall assume legal liabilities according to law. In this case, the
Commission shall have the authority to terminate the arbitrator's
duty.
Chapter
V Hearings and Awards
Article
34
Arbitration
shall be conducted by hearings. If the parties have agreed to or
applied for arbitration without hearings, or if the Tribunal deems
it unnecessary to conduct hearings and obtains the consent of both
parties, the Tribunal may render an award based on the written Application
for Arbitration, the Statement of Defense and other materials.
Article
35
Arbitration
shall be conducted in private. The arbitration may not be conducted
in private if so agreed to by the parties, except for cases that
involve state secrets.
Article
36
Hearings
shall be conducted at the Commission's place of business, or at
other locations at the consent of the Secretary General of the Commission.
Article
37
Where
a case is heard in private, the parties and their representatives,
witnesses, arbitrators, experts consulted by the Tribunal, appraisers
appointed by the Tribunal, and the relevant personnel of the Commission
shall not disclose to outsiders information relating to the substance
or proceedings of the case.
Article
38
If
two or more arbitration cases have common or related subject matter,
upon request by one party and agreement by the other parties, the
cases may be heard in consolidation. The Tribunal shall decide whether
the cases will be heard in consolidation.
If
the Tribunal is composed of different members, the foregoing provision
does not apply.
Article
39
The
Commission shall notify the parties of the date of the hearing at
least 10 days in advance. If agreed to by the parties and the Tribunal
after consultations, the hearing date may be advanced. If there
is good cause, a party may request a postponement of the hearing
date at least seven days prior to the scheduled date of the hearing.
The Tribunal shall decide whether to postpone the hearing.
After
the first hearing, notifications of the date of any subsequent hearings
are not subject to the 10-day requirement.
Article
40
If
the Claimant fails to appear before the Tribunal without good cause
after having been duly notified in writing or leaves the hearing
prior to its conclusion without the permission of the Tribunal,
the Claimant shall be deemed to have withdrawn its Application for
Arbitration. If the Respondent fails to appear before the Tribunal
without good cause after having been duly notified in writing or
leaves the hearing prior to its conclusion without the permission
of the Tribunal, the Tribunal may proceed with the hearing of the
case and make the award in the Respondent's absence.
Article
41
The
parties shall provide evidence in support of their claims.
If
a party fails to provide evidence within a stipulated time limit
or the evidence provided cannot support its claims, the party shall
assume liabilities arising from such failure to provide evidence.
Article
42
The
parties shall categorize, label and bind the evidence, briefly indicate
the sources, object of proof and contents of the evidence, and state
in writing the date of submission.
Article
43
Documentary
evidence shall be submitted in original copies; physical evidence
shall be submitted in original articles. If it is genuinely difficult
to submit an original copy or original article, a reproduced article,
photograph, duplicate copy or abridged version of a document may
be submitted.
Chinese
translations shall be attached to foreign language documents submitted
as evidence.
Article
44
Where
the Tribunal deems it necessary, it may conduct investigation of
the facts and collect evidence on its own initiative. If the Tribunal
deems it necessary to require the presence of the parties during
investigation and collection of evidence, the Tribunal shall notify
the parties accordingly in a timely manner. If, after being notified,
the party/parties fail(s) to appear, the Tribunal may proceed with
the investigation of facts and collection of evidence notwithstanding
such failure.
The
Tribunal shall deliver to the parties the evidence collected on
its own initiative. The parties may provide cross-examination opinions
in connection with the evidence collected by the Tribunal.
Article
45
If
the Tribunal deems it necessary to conduct an appraisal, it may
refer the appraisal to an appraisal agency or individual expert
agreed upon by the parties or designated by the Tribunal.
The
Tribunal shall have the right to request the parties, and the parties
shall have the obligation, to provide or present to the experts
or appraisers any documents, written materials, properties or other
articles needed for the appraisal.
Copies
of the expert and appraiser reports shall be sent to the parties.
The parties may comment on the expert and appraiser reports.
If
the Tribunal deems it necessary, or if the parties so request, the
Tribunal shall request the appraiser to attend the hearing. With
the permission of the Tribunal, the parties may question the appraiser.
Article
46
Evidence
shall be admitted by the Tribunal. The Tribunal shall determine
whether to accept an expert report or appraiser report.
Article
47
The
Tribunal has the power to request the parties to submit the evidence
within a stipulated time period prior to the hearing. The party
with the obligation of providing evidence shall provide said evidence
within the time period required by the Tribunal.
Article
48
Where
the Tribunal deems it necessary, it may authorize the chief arbitrator
to summon the parties to exchange evidence prior to a formal hearing,
so as to confirm jointly the issues in dispute and the scope of
hearing. The meeting shall be recorded by the secretary in writing.
Article
49
If
there is a hearing of the case, the evidence that has been exchanged
between the parties before the hearing shall also be presented at
the time of the hearing for cross-examination by the parties.
The
Tribunal has the power to decide whether to accept evidence that
is submitted after the required time or at the time of the hearing.
If the Tribunal decides to accept such evidence, it shall allow
the other party a reasonable time period of time to examine and
challenge the evidence. Unless explicitly agreed to by the other
party, such evidence shall not be examined at any hearing held before
the expiration of the cross-examination period. Where the Tribunal
decides not to have a hearing, the cross-examination period shall
be the time interval during which the parties submit written cross-examination
opinions.
Where
the arbitral procedures are postponed due to the aforementioned
reasons, the party that submits evidence after the required time
period or at the time of hearing shall bear the corresponding costs.
Article
50
Parties
shall have the right to conduct arguments during the course of arbitration.
At the end of their arguments, the chief or sole arbitrator shall
solicit final opinions from the parties.
Article
51
Before
the closing of the arbitral procedures, the Tribunal may permit
the parties to submit additional evidence within a reasonable time
period if so requested by the parties or if the Tribunal deems it
necessary. If submission of the additional evidence is not made
within such time limit, the Tribunal may decide the facts and make
an award based on the existing evidence.
Where
the Tribunal decides not to continue the hearing, it shall allow
exchange of the additional evidence between the parties, and allow
the parties a reasonable time period for written cross-examination.
Article
52
The
Tribunal shall make a written record of the hearing. The parties
and other participants in the arbitration shall have the right to
apply for corrections or additions to the record of their own statements
if they believe that the record contains errors or omissions. If
the Tribunal does not allow corrections or additions, the application
for the same shall be recorded.
The
record shall be signed by the arbitrator, the recorder, the parties
and other participants in the arbitration or affixed with their
seals.
Article
53
If,
after an Application for Arbitration has been filed, the parties
reach a settlement of the dispute on their own outside the Tribunal,
they may request the Tribunal to make an award based upon their
settlement agreement or they may withdraw the Application for Arbitration.
If the request is made before the formation of the Tribunal, the
Commission shall decide whether or not to dismiss the case. If the
request is made after the formation of the Tribunal, the decision
to dismiss the case shall be made by the Tribunal .
Article
54
If
after a settlement agreement is reached and the Application for
Arbitration has been withdrawn, the party/parties repudiate the
settlement, it/they may file an Application for Arbitration in accordance
with the Arbitration Agreement. The Commission shall decide whether
to accept the Application for Arbitration.
Article
55
If
a party knows, or should reasonably have known, of a non-compliance
with any terms or conditions of these Rules or the Arbitration Agreement
and nonetheless participates in, or continues to participate in,
the arbitration process without raising an explicit written objection
to such non-compliance in a timely manner, the party shall be deemed
to have waived its right to object.
Article
56
The
Tribunal may, at the parties' request or with the parties' consent,
conduct mediation of the dispute in question. If the dispute cannot
be resolved through mediation, the Tribunal shall promptly render
an award. However, no statement, comment, opinion or proposal which
was raised by either party or the Tribunal during the process of
mediation shall be cited as grounds for any claim, defense and/or
counterclaim in subsequent arbitration, judicial procedure or other
proceedings.
If
mediation results in an agreement between the parties, the Tribunal
shall produce a written mediation statement or an award in accordance
with the terms of the agreement. A written mediation statement and
a written award shall have equal legal effect.
Article
57
If,
during the course of mediation by the Tribunal, the parties reach
a settlement outside the Tribunal, the parties shall be deemed to
have reached a settlement through mediation by the Tribunal.
Where
the parties reach a settlement through mediation by the Tribunal,
the parties shall sign a written settlement agreement; the Tribunal
shall produce a written mediation statement or award based on the
settlement agreement.
Article
58
The
written mediation statement shall specify the Statement of Claim
and the results of the agreement reached by the parties. The written
mediation statement shall be signed by the arbitrators, affixed
with the Commission's seal and delivered to both parties.
The
written mediation statement shall become legally effective immediately
after both parties have signed for receipt thereof.
If
the written mediation statement is repudiated by a party before
such party signs for receipt thereof, the Tribunal shall promptly
render an award.
Article
59
The
award shall be rendered in accordance with the majority opinion
of the Tribunal. Any disagreement by the minority may be noted in
the record. If the Tribunal cannot obtain a majority judgement,
the award shall be rendered in accordance with the decision of the
chief arbitrator.
Article
60
If
the Tribunal deems it necessary, or pursuant to a party's request
and the Tribunal's approval, the Tribunal may render an interim
or partial award on any issue in dispute prior to making a final
award. Any party's failure to perform the interlocutory award shall
not affect the continuation of the arbitral procedures and the making
of the final award by the Tribunal.
Article
61
The
Tribunal shall render an award within four months of the formation
of the Tribunal (excluding the time required for conducting appraisal
or making a public announcement). If there is a special reason to
extend the time limit, the chief arbitrator may submit a request
to the Secretary General of the Commission, based upon whose approval
the time limit may be extended.
Article
62
The
award shall specify the Statement of Claim, the facts of the dispute,
the reasons for the award, the actual award, the sharing of arbitration
fees and the date of the award.
If
the parties so agree, the facts of the dispute and the reasons for
the decision may be omitted from the award.
The
award shall be signed by the arbitrators. An arbitrator who disagrees
with the award may elect not to sign the award, provided, however,
that he/she shall provide his/her decision and reasons therefore
to the Tribunal in writing.
Article
63
The
Commission shall affix its seal to the award after the arbitrators
have signed it.
Article
64 The award shall be legally effective as of the date it is made.
The award is final and shall be binding on the parties.
Article
65
The
Tribunal shall rectify any typographical or computational errors
in the award, and shall make additions or corrections in respect
of any items which have been decided by the Tribunal but omitted
from the award. If the Tribunal fails to render a decision on any
item in the Application for Arbitration, it shall issue a supplementary
award.
If
the parties discover that any of the above-mentioned circumstances
exist, they may, within 30 days from the date of receipt of the
award, request in writing that the Tribunal make corrections or
additions to the award or issue a supplementary award.
Any
corrections, additions or supplementary awards shall be integral
parts of the original award.
Article
66
A
party may apply to the intermediate people's court in the place
where the Commission is located for cancellation of an award within
six months from the date of receipt of the award, provided the party
can produce evidence to prove that:
(1)
there was no Arbitration Agreement;
(2)
the matters referred to arbitration did not fall within the scope
of the Arbitration Agreement, or were those which the Commission
had no right to arbitrate;
(3)
the formation of the Tribunal or the proceedings of arbitration
violated legal procedures;
(4)
the evidence on which the award was based was forged;
(5)
the other party concealed evidence to the extent that the impartiality
of the award was affected; or
(6)
during the course of arbitrating the case, an arbitrator sought
or accepted bribes, engaged in malpractice for his/her own benefit
or rendered an award in disregard of the law.
Article
67
The
parties are required to implement the award within the time limit
specified in the award. If no time limit is specified in the award,
the parties shall implement the award immediately.
If
one party fails to implement the award, the other party may apply
to the people's court for enforcement of the award pursuant to the
relevant provisions of the Civil Procedure Law.
Article
68
The
arbitration fees shall be borne in principle by the losing party.
If a party wins part of the case and loses part of the case, the
Tribunal shall decide on the proportion of each party's share of
fees based on each party's respective liabilities. If the parties
reach an amicable settlement on their own or through the Tribunal's
mediation, thus bringing an end to the case, the parties may determine
the proportion of their respective share of fees through consultation.
The
Tribunal may decide in the award that the losing party compensate
the winning party for reasonable costs and expenses in dealing with
the case.
In
the event that the arbitration fees are increased because one party
employs overseas arbitrator(s), or the arbitral procedures are delayed
due to other reasons of one party, such party shall be responsible
for the additional fees.
Article
69
In
accordance with the provisions of Article 61 of the Arbitration
Law, if the Tribunal agrees to re-arbitrate the case, the Commission
shall not charge application fees.
If
the Tribunal makes corrections or additions or makes a supplementary
award in accordance with Article 65 of these Rules, the Commission
shall not charge any additional fees.
Article
70
If
the Claimant withdraws the Application for Arbitration after the
Commission has accepted the Application for Arbitration but before
the formation of the Tribunal, or if the Application for Arbitration
is withdrawn after the parties have reached an amicable settlement
between themselves, the Commission shall refund the prepaid acceptance
fees. However, depending on circumstances, the Commission may assess
partial fees for the handling of the case.
If,
after the formation of the Tribunal, the Claimant withdraws the
Application for Arbitration, or the parties reach an amicable settlement
between themselves and withdraw the Application for Arbitration,
the Commission shall refund part of the prepaid acceptance fees
and fees for handling the case, depending on circumstances.
Chapter
VI Simplified Proceedings
Article
71
Unless
otherwise agreed to by the parties, these simplified procedures
shall apply to disputes involving an amount not exceeding RMB 500,000.
After
the Claimant submits an Application for Arbitration to the Commission,
if the Application for Arbitration is accepted after examination
by the Commission and these simplified procedures shall apply, the
Commission shall promptly send to the parties a Notice of Acceptance
and a Notice Requesting Defense, respectively.
The
parties shall, within 10 days of the Respondent's receipt of the
Notice Requesting Defense, jointly appoint a sole arbitrator or
jointly authorize the Chairman of the Commission to designate a
sole arbitrator from the registry of arbitrators. For cases involving
foreign matters, the arbitrator will be selected from the registry
of arbitrators dealing with foreign-related cases. In the event
that the parties fail to choose or authorize the Chairman of the
Commission to designate an arbitrator within the stipulated time,
the Chairman of the Commission shall promptly designate a sole arbitrator
to form the Tribunal to hear the dispute.
If
the parties agree to apply the normal arbitral procedures to a dispute
involving an amount not exceeding RMB 500,000, the resulting additional
arbitration fees shall be borne by the parties.
Article
72
These
simplified procedures may also apply to disputes involving an amount
exceeding RMB 500,000 if so agreed by the parties.
The
parties may agree to jointly select a sole arbitrator or jointly
authorize the Chairman of the Commission to designate a sole arbitrator
from the registry of arbitrators, who shall form the Tribunal to
handle the dispute pursuant to these simplified procedures.
In
the event that the parties fail to appoint a sole arbitrator or
authorize the Chairman to designate a sole arbitrator within 15
days (20 days for cases involving foreign matters) of the Respondent's
receipt of the Notice Requesting Defense, the Chairman shall promptly
designate the sole arbitrator to form the Tribunal to hear the dispute.
Article
73
The
Respondent shall submit its Statements of Defense and relevant evidentiary
documents and materials to the Commission within 10 days (30 days
for cases involving foreign matters) of receiving the copy of Application
for Arbitration. The Respondent may also submit its counterclaim,
if any, and the relevant evidentiary documents and materials within
such a stipulated time period. The Tribunal shall decide whether
or not to accept counterclaims and evidentiary materials submitted
beyond the stipulated time period.
Article
74
Requests
by the Claimant to amend its claims or by the Respondent to amend
its counterclaims shall be made in writing, and the Tribunal shall
determine whether or not to accept such requests.
If
the Tribunal accepts such a request from one party, the other party
shall submit in writing its Statement of Defense regarding the claims
or counterclaims under amendment and submit such to the Commission
within 10 days of receipt of the request for amendment.
Article
75
The
parties shall submit the necessary written materials and evidence
as required by the arbitration in accordance with the requirements
and time limits set by the Tribunal.
Article
76
For
a case requiring hearings, after the Tribunal has fixed a date for
the hearing, the Commission shall notify the parties of said date
three days (10 days for cases involving foreign matters) prior to
the same.
If
the Tribunal decides to hold hearings, the case shall be conducted
in one session. If absolutely necessary, the Tribunal may decide
to hold a second session. Subsequent to the first session, any notices
of hearing date are not subject to the three-day advance notification
time limit (or 10-day time limit for disputes involving foreign
matters).
Article
77
During
the process of these simplified procedures, the failure of any party
to observe the proceedings shall not affect the carrying out of
the procedures or the giving of an award by the Tribunal.
Article
78
Amendments
to claims or submissions of counterclaims which result in the amount
involved exceeding RMB 500,000 shall not affect the implementation
of the simplified procedures. However, if the Tribunal deems it
necessary, it may apply to the Chairman of the Commission for the
formation of a three-arbitrator Tribunal to handle the dispute according
to the normal procedures.
If
the Chairman of the Commission determines that the dispute should
be handled in accordance with the normal procedures, the parties
shall be requested to appoint respectively an arbitrator or authorize
the Chairman to designate one within five days thereof, according
to the provisions of these Rules. Except when otherwise agreed by
the parties, the sole arbitrator appointed for the simplified procedures
shall become the chief arbitrator for the normal procedures.
The
new Tribunal shall decide whether or not to repeat the arbitral
procedures carried out prior to its formation. The simplified procedures
shall no longer be applicable to those arbitral procedures carried
out after the formation of the new Tribunal.
Article
79
The
Tribunal shall make an award within 75 days of the formation of
the Tribunal. For foreign-related arbitration cases, if hearings
are held, the award shall be made within 30 days of the hearing
or, if there are two hearings, of the second hearing. If the dispute
is handled in writing, the award shall be made within 90 days of
the formation of the Tribunal.
If
special circumstances require an extension of these time periods,
the sole arbitrator shall submit a request to the Chairman of the
Commission and, upon the approval thereof, the time period may be
appropriately extended.
Article
80
For
matters not covered in this chapter, the relevant provisions of
other chapters of these Rules shall apply.
Chapter
VII Special Provisions for Foreign-Related Arbitral Procedures
Article
81
The
provisions of this chapter shall apply to the arbitration of disputes
involving foreign economic, trade, transportation and maritime matters.
Where such matters are not provided for in this chapter, the other
relevant provisions of these Rules shall apply.
Article
82
If
the parties disagree as to whether the dispute in question involves
foreign matters, the Tribunal shall make the final decision.
Article
83
After
accepting an Application for Arbitration, the Commission shall promptly
send to the Claimant these Rules and the registry of arbitrators
handling foreign-related cases, and shall also send to the Respondent
a copy of the Application for Arbitration, as well as these Rules
and the registry of arbitrators dealing with foreign-related cases.
The
Respondent shall submit to the Commission its Statement of Defense
and relevant evidentiary documents and materials in writing within
45 days of its receipt of the Notice Requesting Defense. After receiving
such, the Commission shall promptly deliver a duplicate of the same
to the Claimant. Should the Respondent fail to submit the Statement
of Defense, the implementation of the arbitration procedures shall
not be affected.
Article
84
If
the Respondent has counterclaims, they shall be submitted in writing
to the Commission within 45 days of the Respondent's receipt of
the Notice Requesting Defense. If such counterclaims are submitted
beyond the aforementioned time period, the Tribunal shall decide
whether or not to accept them.
After
the Commission receives the application for counterclaims from the
Respondent, it shall deliver the same promptly to the Claimant.
The Claimant shall submit its Statement of Defense in writing to
the Commission within 45 days of its receipt of the counterclaim
application. Should the Claimant fail to submit such statements,
the arbitral proceedings shall not be affected.
Article
85
Applications
made by the Claimant for amendments to claims or by the Respondent
for amendments to counterclaims shall be submitted in writing; the
Tribunal shall decide whether or not to accept such applications.
If
the Tribunal decides to accept such an application from one party,
the other party shall submit to the Commission in writing Statement
of Defense with respect to the amended claims or counterclaims within
45 days of its receipt of the application for amendments thereto.
Article
86
If
a party applies for preservation of the other party's property,
the Commission shall submit the application for a ruling to the
intermediate people's court where the residence of the other party
or the property in question is located.
If
a party applies for preservation of evidence, the Commission shall
submit the application for a ruling to the intermediate people's
court at the place where the evidence in question is located.
Article
87
If
both parties fail to appoint or authorize the Chairman of the Commission
to designate an arbitrator, or fail to appoint jointly or authorize
the Chairman of the Commission to designate the third arbitrator
within 20 days of the Respondent's receipt of the Notice Requesting
Defense, arbitrators shall be designated by the Chairman of the
Commission.
Article
88
After
the Tribunal is formed, the Commission shall immediately notify
the parties in writing of its composition.
If
an arbitrator cannot perform his/her duties due to a withdrawal
or any other reasons, a new arbitrator shall be selected by the
relevant party/parties in accordance with the procedures stipulated
in Articles 27 of these Rules within 20 days of the receipt of a
notice from the Commission.
Article
89
The
Commission shall notify the parties 30 days in advance of the date
of hearing . The hearing may be held on an earlier date, if the
parties so request and the Tribunal so approves after consultations.
If a party has good cause for postponement of the hearing, it may
make a written request for a postponement 12 days prior to the date
of the said hearing. The Tribunal shall decide whether or not to
allow the postponement.
Notices
for hearings subsequent to the first hearing are not subject to
the aforementioned 30-day advance notification requirement.
Article
90
The
Tribunal shall make an award within eight months of the formation
of the Tribunal. If special circumstances require this time period
to be extended, the chief arbitrator or the sole arbitrator shall
report such to the Secretary General of the Commission for approval
and, upon approval thereof, the time period may be appropriately
extended.
Article
91
The
simplified procedures shall apply to cases covered by the provisions
of Articles 71 and 72 of these Rules.
Article
92
The
Tribunal shall make an award independently and impartially on the
basis of facts, according to the provisions of law and contract,
with reference to international practices and in accordance with
the principles of fairness and reasonableness.
Article
93
If
one party fails to implement a legally effective award, the other
party may, in accordance with the provisions of Chinese law, apply
to the competent Chinese court with jurisdiction for enforcement
of the award or, in accordance with the 1958 Convention on the Recognition
and Enforcement of Foreign Arbitral Awards or other international
treaties to which China is a signatory or a party, apply to a competent
foreign court with jurisdiction for enforcement of the award.
Chapter
VIII Suspension and Termination of Arbitral Procedures
Article
94
Arbitral
procedures shall be suspended under any of the following circumstances,
namely, where:
(1)
one party is unable to participate in the arbitration due to events
or reasons beyond its control;
(2)
the dispute in question must be heard based on the findings of another
case which has not yet been concluded;
(3)
one party is dead or terminated, and a successor to its rights and
obligations has yet to be determined; or
(4)
there exist other circumstances which require the suspension of
arbitral procedures.
Article
95
Upon
removal of the reasons for suspension, the arbitral procedures shall
be resumed.
Article
96
Arbitral
procedures shall be terminated under any of the following circumstances,
namely, where:
(1)
one party is dead or terminated, and no successor to its rights
and obligations has been determined;
(2)
one party is dead and the successor to his/her rights and obligations
has indicated unwillingness to participate in the arbitration; or
(3)
there exist other circumstances which require the termination of
arbitral procedures.
Article
97
Any
suspension or termination of arbitral procedures prior to the formation
of the Tribunal shall be decided by the Commission. Any suspension
or termination of arbitral procedures after the formation of the
Tribunal shall be decided by the Tribunal.
Chapter
IX Term and Delivery
Article
98
The
time period shall be counted in units of days, months and years.
The hour and the day when the time period commences shall not be
counted as being within the time period.
If
the last day of a time period falls on a holiday, the expiry date
of such a period shall be the first day following the holiday.
The
time during which materials are in transit shall not be counted
as being within the time period itself. The arbitration documents,
materials and notices shall be deemed as properly delivered if they
have been delivered for mailing or dispatched before the expiration
of the time period.
Article
99
If
any party must extend the time period due to events beyond its control
or due to any other good cause, it may apply for extension of the
time period accordingly within 10 days of the resolution of such
events or causes. The Commission or the Tribunal shall decide whether
or not to approve such an extension.
Article
100
The
documents, notices and materials related to the arbitration may
be delivered to the parties or their representatives in person,
or by mail, telegraph, facsimile, as well as by leaving the documents
at the place of abode or by public announcements.
Article
101
If
the arbitration documents, notices or materials are handed over
to the receiving party in person or are delivered by post to its
place of business, usual place of residence or mailing address,
the said documents shall be deemed as having been properly delivered.
If
delivery cannot be carried out by the aforementioned means, the
delivering party may invite a notary to be present and leave the
written materials to be delivered at the last known place of business,
usual place of residence or mailing address of the receiving party
after such materials are jointly signed by or affixed with the seals
of the delivering party and the notary. After recording the circumstances
and date of delivery on the acknowledgement receipt, such materials
shall be deemed as having been properly delivered.
If
delivery is conducted by means of public announcement, the materials
shall be deemed as having properly delivered after 60 days of the
announcement.
Article
102
If
delivery is conducted in person, the arbitration documents, notices
and materials shall be accompanied by an acknowledgement receipt
on which the receiving party shall write the date of delivery and
provide its signature or affix its seal. The date written on the
receipt by the receiving party shall be deemed as the delivery date.
If
such materials are delivered by mail, the date of receipt indicated
on the acknowledgement receipt shall be deemed as the delivery date.
If
such materials are delivered by being left at the last known place
of business, usual place of residence or mailing address, the date
of the signing and execution by the notary on the acknowledgement
receipt shall be deemed as the delivery date.
Chapter
X Supplementary Provisions
Article
103
The
Chinese language shall be the official language of the Commission,
unless the parties have agreed otherwise, in which case such agreement
shall prevail.
During
the arbitration hearings, if any party involved or its representatives
or witnesses are in need of translation, the office of the Commission
may provide translators for them, or such a party may provide its
own translators, in which case the fees for such translators shall
be borne by the said party.
Article
104
If
the law stipulates time periods for arbitration, such stipulations
shall apply. If the law has no such stipulations, the provisions
used for time periods for litigation procedures shall apply.
Article
105
If
the Arbitration Agreement provides that arbitration shall be conducted
by the Commission or the arbitration commission of Beijing Municipality,
it shall be deemed that both parties have agreed that arbitration
shall be conducted by the Commission.
If
parties to domestic disputes expressly indicate in their Arbitration
Agreement that arbitration shall be conducted by an arbitration
agency or organization in Beijing Municipality, or if there are
other unambiguous statements from which it can be inferred that
the Commission is to conduct the arbitration, the parties shall
be deemed to have agreed that arbitration shall be conducted by
the Commission.
Article
106
The
Commission shall have the right to interpret these Rules.
Article
107
These
Rules shall be implemented as of 1 August 2001. For those cases
that have already been accepted by the Commission before the implementation
of these Rules, the arbitration rules in effect at the time of their
acceptance shall apply; however, these Rules may be applied if the
parties so agree.
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