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TABLE OF CONTENTS CHAPTER I GENERAL PRINCIPLES CHAPTER II ARBITRAL PROCEDURE CHAPTER III SUPPLEMENTARY PRINCIPLES CHAPTER I GENERAL PRINCIPLES Article 1. The China Maritime Arbitration Commission (hereinafter referred to the Arbitration Commission) shall use arbitration as a means of independently and impartially resolving maritime disputes, in order to safeguard the legal rights and interests of the parties concerned and to accelerate the development of international economics and trade. Article 2. Upon the written application of one of the disputing parties and in accordance with such arbitration agreement concluded between the parties, which stipulates the submission of disputes to the Arbitration Commission for settlement, the Arbitration Commission shall accept for hearing, either before or after a dispute arises, the following maritime dispute cases: (1) disputes over remuneration for salvage services rendered by sea-going vessels to each other or by a sea-going vessel to a river craft and vice versa; (2) disputes arising from collisions between sea-going vessels or between sea-going vessels and river craft or from damage caused by sea-going vessels to harbour structures or installations; (3) disputes involving sea-going vessels, arising from areas of business such as chartering, agency, towage, salvage, trading, maintenance and construction, as well as disputes over ocean transportation undertaken in accordance with contracts of delivery, bills of lading and other shipping documents, and disputes over marine insurance; (4) disputes involving pollution damage to the marine environment; (5) other maritime disputes which both of the disputing parties agree require arbitration. An arbitration agreement shall refer to the arbitration clause stipulated in the contract concluded between the two parties or to any other form of written arbitration agreement concluded between them. The Arbitration Commission shall have the right to rule on the validity of an arbitration agreement and on jurisdiction over an arbitration case. Article 3. The Arbitration Commission shall comprise one chairman, several deputy-chairmen and several committee members. The chairman shall exercise the powers and functions prescribed by these Arbitration Provisions. The deputy-chairmen may also exercise the powers and functions of the chairman if so entrusted by the chairman. The Arbitration Commission shall establish a secretariat which shall be responsible for handling its everyday affairs. Article 4. The Arbitration Commission shall establish a list of names of arbitrators appointed by the China Council for the Promotion of International Trade, who shall be Chinese and foreign persons with professional knowledge and actual experience in fields such as international economics and trade, science and technology and law. Article 5, The Arbitration Commission shall be based in Beijing. It may establish branch offices in other places within Chinese territory in accordance with the future requirements of arbitration service development. CHAPTER II ARBITRAL PROCEDURE Article 6. A plaintiff shall submit an arbitration application to the Arbitration Commission in accordance with the following requirements: (1) The plaintiff shall submit to the Arbitration Commission an arbitration application form which clearly states: 1. the name and address of both the plaintiff and the defendant; 2. the arbitration agreement on which the action of the plaintiff is based; and 3. the claim of the plaintiff and the facts and evidence on which the claim is based. The arbitration application form shall be signed by the plaintiff and/or the plaintiff's authorized agent; (2) When submitting an arbitration application form to the Arbitration Commission, documentation of the facts on which the plaintiff's claim is based shall also be attached; (3) An arbitrator shall be nominated from the list of arbitrators kept by the Arbitration Commission or the chairman of the Arbitration Commission shall be entrusted to appoint an arbitrator; and (4) Arbitration fees shall be paid in advance in accordance with the amount prescribed in the fee table attached to these Arbitration Provisions. Article 7. Upon receipt of an arbitration application form and attached documents and after determining through examination that the plaintiff has completed all application procedures, the Arbitration Commission shall promptly send the defendant one copy each of the plaintiff's application form and attached documents, together with the Arbitration Commission's arbitration provisions and a list of names of arbitrators. Article 8. The defendant shall, within 20 days of receiving the arbitration application form, nominate one arbitrator from the list provided or shall entrust the chairman of the Arbitration Commission to appoint an arbitrator on its behalf. The defendant shall also be required to submit to the Arbitration Commission a statement in its defense and other relevant documents within 45 days of receiving the arbitration application form. Article 9. Any counterclaim that a defendant may have against a case which has already been accepted for hearing by the Arbitration Commission shall be filed within the time limit for submission of defense statements prescribed in the provisions of Article 8. The defendant shall state clearly in the counterclaim its own claim and the facts and evidence on which the claim is based and shall attach any relevant documentation. When filing a counterclaim a defendant shall pay the arbitration fee in advance in accordance with the amount prescribed in the fee table attached to these Arbitration Provisions. Article 10. If deemed necessary, the Arbitration Commission may request the defendant to pay a portion of the arbitration fee in advance. Article 11. Arbitration application forms, defense statements, counterclaims and relevant documentation and other articles submitted to the Arbitration Commission by the parties to a case shall be accompanied by a particular number of copies, which is the number of the other party and the members of the Arbitration Tribunal. Article 12. A disputing party may engage an agent to undertake the various arbitral procedures required by the Arbitration Commission. An agent may be either a Chinese citizen or a citizen of another country. A commissioned agent shall submit a letter of authorization to the Arbitration Commission. Article 13. The Arbitration commission may, in accordance with an application by the disputing parties and the provisions of Chinese law, request a Chinese court in the district where the defendant has property or where the arbitral body is located to make a ruling on preservation measures. Article 14. After the two parties to a case have each nominated or requested the chairman of the Arbitration Commission to appoint an arbitrator, the chairman shall promptly select a third name from the Arbitration Commission's list of arbitrators to act as the presiding arbitrator. The three persons shall form an Arbitration Tribunal and shall jointly hear the case. Article 15. The two parties to a case may nominate or may request the chairman of the Arbitration Commission to appoint a sole arbitrator who shall form a Tribunal by himself and hear the case alone. If the two parties agree to have a sole arbitrator hear the case, but are unable, within 20 days of the defendant receiving the arbitration application form or their agreeing to nominate a sole arbitrator to hear the case, to reach a unanimous decision on the selection, the chairman of the Arbitration Commission shall make the appointment. Article 16. If a defendant fails to nominate an arbitrator in accordance with Article 8 of these Arbitration Provisions or to request the chairman of the Arbitration Commission to appoint an arbitrator on its behalf, the chairman shall have the right to appoint an arbitrator for the defendant. Article 17. If an arbitration case involves two or more plaintiffs and/ or defendants, the plaintiffs and/or defendants shall, after discussion, jointly select one arbitrator for each of the two parties. If, the plaintiffs are unable to reach a decision by the time of their submission of the arbitration application form and/or if the defendants are unable to reach a decision within 20 days of receiving the arbitration application form, the chairman of the Arbitration Commission shall appoint an arbitrator on their behalves. Article 18. If the arbitrator appointed is an interested party in a case, the arbitrator shall voluntarily notify the Arbitration Commission to that effect and shall ask to be excused from the case. The parties to a case shall have the right to submit a written application to the Arbitration Commission requesting that such an arbitrator be withdrawn from the ease. Article 19. A party to a case which wishes to request the withdrawal of an arbitrator shall do so before the opening of the hearing of the case. If a reason for requesting the withdrawal of an arbitrator is discovered or if information is received after the opening of a case hearing, the request may still be made any time after the opening of the court session until before the conclusion of the hearing. Article 20. The decision to withdraw an arbitrator from a case shall be made by the chairman of the Arbitration Commission. Article 21. If an arbitrator is unable to perform the arbitrator's duties, because of a need to avoid a case or other reasons, another arbitrator shall be chosen in accordance with the procedure by which the original arbitrator was selected. Article 22. The Arbitration Tribunal shall open a court session to hear a case. If, however, both parties to a case submit an application or the approval of both parties is obtained, a court hearing need not be held. Instead, an award may be rendered after a hearing based on written documents is held. Article 23. The date on which an Arbitration Tribunal commences the hearing of a case shall be decided by the Tribunal in consultation with the Arbitration Commission secretariat and the two parties to the case shall be given 30 days' notice. Either party to a case may request an extension of the period before a hearing if there is a genuine reason, but except in the event of unforeseen circumstances, the request must be submitted to the Arbitration Commission secretariat 12 days before the commencement of the hearing. The Arbitration Commission secretariat shall inform the Arbitration Tribunal of any extension request and a decision shall be made by the Tribunal in consultation with the secretariat. Article 24. Hearings of cases accepted by the Arbitration Commission shall be held at the seat of the Arbitration Commission. Hearings may be held at other places, subject to approval by the chairman of the Arbitration Commission. Article 25. An Arbitration Tribunal shall not hear cases in open session, but if both parties to a case request that an open session hearing be held, the Tribunal may decide to do so. Article 26. The parties to a case shall produce evidence in support of the facts on which their complaint or defense is based. The Arbitration Tribunal may undertake its own investigations and collect evidence if it deems this to be necessary. Article 27. Evidence shall be examined and appraised by the Arbitration Tribunal. Article 28. An Arbitration Tribunal may consult experts over any technical or other special matter concerning a case or may have an appraisal made by a qualified person. Such experts and appraisers may be either Chinese of foreign organizations or citizens. Article 29. If one of the disputing parties or its agent fails to appear at the Arbitration Tribunal hearing, the Tribunal may conduct the hearing and render an award in their absence. Article 30. When an Arbitration Tribunal hearing is held, the Arbitration Commission secretariat shall record the details of the hearing in writing and/or on tape. If deemed necessary, the Arbitration Tribunal may order the parties to a case and/or their agents, witnesses and/or any other relevant persons to sign the written records of the hearing. Article 31. In the event of a case already accepted for hearing by the Arbitration Commission being settled through conciliation between the two disputing parties, the plaintiff shall immediately apply for the case to be withdrawn. Before an Arbitration Tribunal is formed a decision on the withdrawal application shall be made by the chairman of the Arbitration Commission and after an Arbitration Tribunal is formed such a decision shall be made by the Tribunal itself. The Arbitration Commission chairman shall rule on whether or not to reaccept a case if an arbitration application is resubmitted by the disputing parties after a case has been withdrawn. Article 32. An arbitration Tribunal shall render an adjudication on a case within 45 days of the conclusion of the hearing. Article 33. If a case is heard by an Arbitration Tribunal comprising three arbitrators, the award shall be based on the majority opinion of the arbitrators. The minority opinion may be recorded and attached to the case file. Article 34. Except where an adjudication is give in accordance with the provisions of Article 37, an Arbitration Tribunal shall explain the grounds on which an adjudication is based. An arbitration adjudication shall be signed by all or the majority of the arbitrators and shall clearly state the date and place where it was issued. Article 35. An intermediary award or partial award may be made on any aspect of a case at any time during the arbitration process if the Arbitration Tribunal deems it to be necessary or if the parties to the case put forward such a proposal and the Tribunal approves. Article 36. An arbitration award shall be considered final and neither of the disputing parties shall be permitted to take legal action or to appeal to any other organization for revision of an award. Article 37. The Arbitration Commission and Arbitration Tribunals may undertake mediation with regard to any case under their jurisdiction. If a case is resolved through conciliation, the Arbitration Tribunal shall render an award based on the content of the conciliation agreement between the two parties. Article 38. An award shall be executed by the parties themselves within the time limit prescribed in the award provisions. If a time limit is not stipulated in an award, it shall be executed immediately. If one party fails to execute an award, the other party may appeal to a Chinese court for enforcement, pursuant to Chinese law, or may appeal to a court under foreign jurisdiction for enforcement of the award in accordance with the 1985 Convention on the Recognition and Enforcement of Foreign Arbitration Awards or any other international treaty which China has concluded or participated in. CHAPTER III SUPPLEMENTARY PRINCIPLES Article 39. The Chinese language shall be the official language of the Arbitration Commission. If at an Arbitration Tribunal hearing any of the parties to the case, their agents or witnesses does not understand the Chinese language, the Arbitration Commission secretariat may provide an interpreter or the party concerned may provide one itself. If the Arbitration Commission secretariat deems it to be necessary, it may require the party concerned to provide a corresponding Chinese or other language translation of any of the various documents and other certified material submitted by the parties to a case. Article 40. All correspondence of the Arbitration Commission to the parties to a case shall be regarded as having been delivered if it is personally handed over to the addressee or delivered to the addressee's place of business, customary place of abode or mailing address, or if, after reasonable inquiries are unable to locate any of the aforesaid addresses, the article is sent by registered mail or any other method used in previously recorded delivery attempts to the addressee's last known place of business, customary place of abode or mailing address. Article 41. In addition to the Arbitration Commission collecting arbitration fees in accordance with the arbitration fee table attached to these Arbitration Provisions, it may also collect from the parties to a case other actual costs, including the expense of remuneration for, and the travel costs and board and lodging expenses of the arbitrators, as well as the cost of experts, appraisers, interpreters, etc., engaged by the Arbitration Tribunal. In the event of the disputing parties themselves concluding a reconciliation agreement and applying for the case to be withdrawn, the Arbitration Commission may also collect the specified fee and amount of the actual costs incurred. Article 42. These Arbitration Provisions shall apply to dispute cases heard by branch offices of the Arbitration Commission. The powers and functions of the chairman of the Arbitration Commission and the Arbitration Commission secretariat, prescribed in these Arbitration Provisions, shall be exercised by the chairman and secretariat of an Arbitration Commission branch office when it conducts an arbitration hearing. Article 43. These Arbitration Provisions shall take effect from January 1, 1989. ARBITRATION FEE TABLE (1) Amount in dispute (RMB): less than 100,000 Arbitration fee (RMB): 4% of the amount in dispute, subject to the minimum of 20,000; (2) Amount in dispute (RMB): 100,000-500,000 Arbitration fee (RMB): 4,000+ 3% of the amount in dispute less 100,000; (3) Amount in dispute (RMB): 500,000-1,000,000 Arbitration fee (RMB): 16,000+2% of the amount in dispute less 500,000; (4) Amount in dispute (RMB): 1,000,000-5,000,000 Arbitration fee (RMB): 26,000+1% of the amount in dispute less 1,000,000; (5) Amount in dispute (RMB): more than 5,000,000 Arbitration fee (RMB): 66,000+0.5% of the amount in dispute less 5,000,000. If the amount in dispute has not been determined at the time of submission of the arbitration application, the Arbitration Commission secretariat shall decide on the amount of the arbitration fee payable. If the arbitration fee is collected in foreign currency, it shall be in accordance with the equivalent value of the renminbi amount stipulated in the arbitration fee table above. |
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