Chapter II. Arbitration
Proceedings
Section 3. Hearing
Article 32. The arbitration tribunal shall hold oral hearings
when examining cases. At the request of the parties or with
their consent, oral hearings may be omitted if the arbitration
tribunal also deems that oral hearings are unnecessary and
then the arbitration tribunal may examine the case and make
an award on the basis of documents only.
Article 33. The date of the first oral hearing shall be fixed
by the arbitration manual in consultation with the secretariat
of the Arbitration Commission. The notice of the date of the
hearing shall be communicated to the parties 30 days before
the date of the hearing. A party having justified reasons
may request a postponement of the date of the hearing. His
request must be communicated to the secretariat of the Arbitration
Commission 12 days before the date of the hearing and the
arbitration tribunal shall decide whether to postpone the
hearing or not.
Article 34. The notice of the date of the hearing subsequent
to the first hearing is not subject to the 30-day time limit
provided for in the foregoing article.
Article 35. The cases taken place of by the Arbitration Commission
shall be heard in Beijing, or in other places with the approval
of the chairman of the Arbitration Commission. The cases taken
cognizance of by a Sub-Commission of the Arbitration Commission
shall be heard in the place where the Sub-Commission is located,
or in other places with the approval of the chairman of the
Sub-Commission.
Article 36. The arbitration tribunal shall not hear cases
in open session. If both parties request a heating to be held
in open session, the arbitration tribunal shall deride whether
to hold the hearing in open session or not.
Article 37. When a case is heard in closed session, the parties,
their attorneys, witnesses, arbitrators, experts consulted
by the arbitration tribunal and appraisers appointed by the
arbitration tribunal, the staff members of the Arbitration
Commission and its secretariat shall not disclose to outsiders
the substantive or procedural matters of the case heard and
examined in closed session.
Article 38. The parties shall produce evidence for the facts
on which their claim, defense and counterclaims are based.
The arbitration tribunal may undertake investigations and
collect evidence on its own initiative, if it deems it necessary.
If the arbitration tribunal investigates and collects evidence
on its own initiative, it shall accordingly timely inform
the parties to be present at the place where the arbitration
tribunal deems it necessary. Should one party or both parties
fall to appear at the place directed, the investigation and
collection of evidence shall by no means be affected.
Article 39. The arbitration tribunal may consult an expert
or appoint an appraiser for the clarification of special questions
relating to the case. Such an expert and appraiser can be
an organization or a citizen, Chinese or foreign.
The arbitration tribunal has the power to order the parties
and the parties are also obliged to submit or produce to the
expert or appraiser any materials, documents, properties or
goods related to the case for check-up, inspection and/or
appraisal.
Article 40. The expert's report and the appraiser's report
shall be copied to the parties so that they may have the opportunity
to give their opinions thereon. At the request of any party
to the case and with the approval of the arbitration tribunal,
the expert and appraiser may be present at the hearing and
give explanations of their reports when the arbitration tribunal
deems it necessary and appropriate.
Article 41. The evidence submitted by the parties shall be
examined and decided by the arbitration tribunal. The arbitration
tribunal shall determine whether or not to adopt the experts
report and the appraiser's report.
Article 42. Should one of the parties fail to appear at the
hearing, the arbitration tribunal may proceed with the hearing
and make an award by default.
Article 43. During the hearing, the secretariat of the Arbitration
Commission may make a record in writing and/ or by tape-recording.
The arbitration tribunal may, when it deems necessary, make
minutes stating the main points of the hearing and ask the
parties and/or their attorneys, witnesses and/or other persons
involved to sign their names on it.
The records or tape-recording taken or made by the secretariat
are only for the use and reference of the arbitration tribunal.
Article 44. If the parties to an arbitration case reach an
amicable settlement agreement by themselves, they may either
request the arbitration tribunal to make an award in accordance
with the contents of their amicable settlement agreement to
end the case or request a dismissal of the case. The chairman
of the Arbitration Commission shall decide on the request
for a dismissal of the case if the request is made before
the formation of the arbitration tribunal and the arbitration
tribunal shall decide if the request is put forward after
the formation of the arbitration tribunal.
If the party or the parties refer the dismissed case again
to the Arbitration Commission for arbitration, the chairman
of the Arbitration Commission shall deride whether to accept
the reference or not.
Article 45. A party who knows or should have known that any
provision or requirement of these Rules has not been complied
with and yet proceeds with the arbitration proceedings without
explicitly raising in writing his objection to noncompliance
in a timely manner shall be deemed to have waived his right
to object.
Article 46. If both parties have a desire for conciliation
or one party so desires and the other party agrees to it when
consulted by the arbitration tribunal, the arbitration tribunal
may conciliate the case under its cognizance in the process
of arbitration.
Article 47. The arbitration tribunal may conciliate cases
in the manner it deems appropriate.
Article 48. The arbitration tribunal shall terminate conciliation
and continue the arbitration proceedings when one of the parties
requests a termination of conciliation or when the arbitration
tribunal believes that further efforts to conciliate will
be futile.
Article 49. If the parties have reached an amicable settlement
outside the arbitration tribunal in the course of conciliation
conducted by the arbitration tribunal, such settlement shall
be deemed as one which has been reached through the arbitration
tribunal's conciliation.
Article 50. The parties shall sign a settlement agreement
in writing when an amicable settlement is reached through
conciliation conducted by the arbitration tribunal, and the
arbitration thermal shall end the case by making an award
in accordance with the contents of the settlement agreement
unless otherwise agreed by the parties.
Article 51. Should conciliation fail, any statement, opinion,
view and proposal which has been made, raised, put forward,
acknowledged, accepted or rejected by either party or by the
arbitration tribunal in the process of conciliation shall
not be invoked as grounds for any claim, defense and/or counterclaim
in subsequent arbitration proceedings, judicial proceedings
or any other proceedings.
Section 4. Award
Article 52. The arbitration tribunal shall render an arbitral
award within 9 months after the arbitration tribunal is formed.
The Arbitration Commission may postpone this time limit at
the request of the arbitration tribunal if the Arbitration
Commission considers it really necessary and the reasons for
postponement are truly justified.
Article 53. The arbitration tribunal shall independently
and impartially make its arbitral award in accordance with
the facts of the case, the law and the terms of the contracts,
international practices and the principle of fairness and
reasonableness.
Article 54. The arbitration tribunal shall state the reasons
upon which the arbitral award is based unless the arbitral
award is made in accordance with the contents of a settlement
agreement reached by both parties. The arbitral award shall
be signed by all or a majority of the arbitrators sitting
on the arbitration tribunal and shall contain the Arbitration
Commission's stamp and the date on and place in which the
arbitral award is made.
The date on which the arbitral award is made is the date
on which the arbitral award comes into effect.
Article 55. Where a case is heard by an arbitration tribunal
composed of three arbitrators, the arbitral award shall be
decided by the majority of the arbitrators and the minority
opinion can be written in the record and docketed into the
file. An arbitrator who has a dissenting opinion may sign
or not sign his name on the arbitral award.
Article 56. When the arbitration tribunal cannot attain a
majority opinion, the arbitral award shall be decided in accordance
with the presiding arbitrator's opinion.
Article 57. The arbitration tribunal may, if it deems it
necessary or the parties so request and it agrees, make an
interlocutory award or partial award on any issue in the case
at any time in the course of arbitration. Either party's failure
to perform the interlocutory award does not affect the continuation
of the arbitration proceedings and the making of the final
award by the arbitration tribunal.
Article 58. The arbitration tribunal has the power to determine
in the arbitral award the arbitration fee and other expenses
to be ultimately paid by the party or parties to the Arbitration
Commission.
Article 59. The arbitration tribunal has the power to rule
in the arbitral award that the losing party shall pay the
winning party as compensation a portion of the expenses reasonably
incurred by the winning party in dealing with the case. The
amount of such compensation shall not in any case exceed 10%
of the total amount awarded to the winning party.
Article 60. The arbitral award is final and binding upon
both disputing parties. Neither party may bring a suit before
a law court or make a request to any other organization for
revising the arbitral award.
Article 61. Either party may request in writing that a correction
by made to the writing, typing, calculating and similar errors
contained in the arbitral award within 30 days from the date
of receipt of the arbitral award; if there is really an error
in the arbitral award, the arbitration tribunal shall make
a correction in writing within 30 days from the date of receipt
of the written request for correction, and the arbitration
tribunal may by itself make a correction in writing within
30 days from the date on which the arbitral award is issued.
The correction in writing forms a part of the arbitral award.
Article 62. If anything that should be awarded has been omitted
in the arbitral award, either of the parties may make a request
in writing to the arbitration tribunal for an additional award
within 30 days from the date on which the arbitral award is
received.
The arbitration tribunal shall make an additional award within
30 days from the date of receipt of the request in writing
for an additional award. The arbitration tribunal may by itself
make an additional award within 30 days from the date on which
the arbitral award is issued. The additional award forms a
part of the arbitral award which has been previously issued.
Article 63. The parties must automatically execute the arbitral
award within the time limit specified in the arbitral award.
If no time limit is specified in the arbitral award, the parties
shall carry out the arbitral award immediately.
In case one party fails to execute the arbitral award, the
other party may apply to the Chinese court for the enforcement
of the arbitral award pursuant to Chinese law or apply to
the competent foreign court for enforcement of the arbitral
award according to the 1958 Convention on the Recognition
and Enforcement of Foreign Arbitral Awards or other international
treaties that China has concluded or participated in.
Chapter III. Summary Procedure
Article 64. Unless otherwise agreed by the parties, this
Summary Procedure shall apply to any case in dispute where
the amount of the claim totals not more than RMB 500,000 yuan
and to any case in dispute where the amount of the claim totals
more than RMB 500,000 yuan provided that one party applies
for arbitration under this Summary Procedure and the other
party agrees in writing.
Article 65. When an application for arbitration is submitted
to the Arbitration Commission by one of the parties and the
application is accepted after examination, the chairman of
the Arbitration Commission shall immediately appoint a sole
arbitrator from among the Panel of Arbitrators of the Arbitration
Commission to form an arbitration tribunal to hear the case,
unless such an appointment has been jointly made by the two
disputing parties. Accordingly, the secretariat of the Arbitration
Commission shall immediately serve a notice of arbitration
on the other party.
Article 66. The other party shall, within 30 days from the
date of receipt of the notice of arbitration, submit his defense
and relevant documentary evidence to the secretariat of the
Arbitration Commission; a counterclaim, if any, shall be filed
together with documentary evidence within the said time limit.
Article 67. The arbitration tribunal may hear the case in
the way it deems appropriate. The arbitration tribunal has
the discretion to hear the case only on the basis of the written
materials and evidence submitted by the parties or to hold
an oral hearing as well.
Article 68. The parties must hand in written materials and
evidence needed for the arbitration in compliance with the
requirements of the arbitration tribunal within the time limit
given by the arbitration tribunal.
Article 69. For a case which needs an oral hearing, the secretariate
of the Arbitration Commission shall, after the arbitration
tribunal has fixed a date for hearing, inform the parties
of the date of the hearing 10 days before the date of the
hearing,
Article 70. If the arbitration tribunal decides to hear the
case orally, only one oral hearing shall be held. Two oral
hearings are not permitted unless necessary.
Article 71. Should any one of the parties fail to act in
compliance with this Summary Procedure during summary proceedings,
such failure shall not affect the arbitration tribunal's conduct
of the proceedings and the arbitration tribunal's power to
render an arbitral award.
Article 72. The conduct of the proceedings shall not be affected
by any amendment of the claim or by the lodging of a counterclaim,
except where there is a conflict with Article 64 of these
Rules.
Article 73. Where a case is heard orally, the Arbitration
Tribunal shall make an arbitral award within 30 days from
the date of the oral hearing. When a case is examined on the
basis of documents, the arbitration tribunal shall render
an arbitral award within 90 days from the date on which the
arbitration tribunal is formed. The Arbitration Commission
may extend the said time limit if such extension is necessary.
Article 74. For matters not covered in this Chapter, the
relevant provisions in the other Chapters of these Rules shall
apply.
Chapter IV. Supplementary Provisions
Article 75. The Chinese language is the official language
of the Arbitration Commission. If the parties have agreed
otherwise, their agreement shall prevail.
At the hearing, if the parties or their attorneys or witnesses
request language interpretation, the secretariat of the Arbitration
Commission may provide an interpreter for them or the parties
may bring with them their own interprets.
The secretariat of the Arbitration Commission may, if it
deems it necessary, request the parties to hand in corresponding
translation copies in the Chinese language or other languages
of the various documents and evidentiary materials submitted
by the parties.
Article 76. Unless otherwise agreed by the parties or otherwise
decided by the arbitration tribunal, all the arbitration documents,
notices and materials may be sent to the parties and/or their
attorneys in person, or by registered letter or express air
mail, telefax, telex, cable or by any other means which are
deemed proper by the secretariat of the Arbitration Commission.
Article 77. Any written communication to the parties is deemed
to have been served if it is delivered to the addressee personally
or if it is delivered at his place of business, habitual residence
or mailing address; or if none of these can be found after
making a reasonable inquiry, a written communication is deemed
to have been served if it is sent to the addressee's last
known place of business, habitual residence or mailing address
by registered letter or by any other means which provides
a record of the attempt to deliver it.
Article 78. Apart from changing arbitration fees to the parties
according to the Arbitration Fee Schedule of the Arbitration
Commission, the Arbitration Commission may collect from the
parties other extra, reasonable and actual expenses including
arbitrators' special remuneration and their travel and boarding
expenses for dealing with the case and the fees and expenses
for experts, appraisers and interpreters appointed by the
arbitration tribunal, etc.
If a case is withdrawn after the parties have reached among
themselves an amicable settlement, the Arbitration Commission
may charge a certain amount of fees to the parties in consideration
of the quantity of work and the amount of the actual expenses
incurred by the Arbitration Commission.
Article 79. Where the arbitration agreement or the arbitration
clause contained in the contract provides for the arbitration
to be conducted by the Arbitration Commission or its Sub-Commissions
or by the Foreign Trade Arbitration Commission or the Foreign
Economic and Trade Arbitration Commission of the China Council
for the Promotion of International Trade (former names of
the Arbitration Commission), it shall be deemed that the parties
have unanimously agreed that the arbitration shall be conducted
by the Arbitration Commission or by its Sub-Commissions.
Article 80. These Rules shall come into force as from June
1, 1994, For cases taken cognizance of by the Arbitration
Commission or its Sub-Commissions before the date on which
these Rules become effective, the Rules of the Arbitration
Commission which came into force as from January 1, 1989 shall
still apply, However, these Rules shall be applied ff the
parties so agree.
Article 81. The power to interpret these Rules is vested
in the Arbitration Commission.
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