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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS SECTION 1 JURISDICTION SECTION 2 ORGANIZATION CHAPTER II ARBITRATION PROCEEDINGS SECTION 1 ARBITRATION APPLICATION, DEFENCES AND COUNTERCLAIM SECTION 2 COMPOSITION OF ARBITRATION TRIBUNAL SECTION 3 HEARING CHAPTER III SIMPLIFIED PROCEEDINGS CHAPTER IV SUPPLEMENTARY PROVISION CHAPTER I GENERAL PROVISIONS SECTION 1 JURISDICTION Article 1. The arbitration rules have been formulated in accordance with the "Arbitration Law of the People's Republic of China" and relevant laws as well as "Decisions" of the former Administrative Council of the Central People's Government and "Circulars" and "Official Replies" of the State Council concerning the renaming of the Foreign Economic and Trade Arbitration Committee as the China International Economic and Trade Arbitration Committee and the amendment of its "Arbitrating Rules". Article 2. The China International Economic and Trade Arbitration Committee (formerly the Foreign Trade Arbitration Committee of the China Council for the Promotion of International Trade, which was later renamed as the Foreign Economic Relations and Trade Arbitration Committee of the China Council for the Promotion of International Trade and the "China International Economic and Trade Arbitration Committee as it is currently called, (hereinafter referred to as "arbitration committee") shall, by means of arbitration, settle independently and fairly disputes concerning international or foreign economic relations and trade bounded or not bounded by contracts as arising between foreign legal persons and/or natural persons and Chinese legal persons and/or natural persons, among foreign legal persons and/or natural persons or among Chinese legal persons and/or natural persons in order to protect the legitimate rights and interests of the parties concerned and promote the development of domestic and foreign economic relations and trade. Article 3. The arbitration committee shall accept a case upon a written application by one party concerned for the arbitration of a dispute in pursuant to an arbitration agreement reached between the parties concerned before or after the dispute arises. An arbitration agreement refers to the arbitration clause specified in a contract between parties concerned or an agreement on arbitration reached in other forms. Article 4. The arbitration committee has the right to decide on the existence, validity and jurisdiction of the case put to arbitration. When the parties concerned have any objections against the validity of ¬¬the arbitration agreement, if one side decides to turn to the arbitration committee for settlement while the other side chooses to go before the people's court, the dispute will then be ruled by the people's court. Article 5. Arbitration clauses of a contract shall be deemed as independent of other clauses in the same contract; an arbitration agreement attached to a contract shall also be deemed as a separate part of the contract independent of other clauses. The validity of arbitration clauses of a contract or an arbitration agreement shall not be affected by the alternation, dissolution, termination, nullification or invalidity of the contract. Article 6. A counterclaim against the arbitration agreement and/or the jurisdiction over the case put to arbitration shall be put forward before the opening of the first court session; a counterclaim against the jurisdiction over the case examined on the basis of documents only shall be put forward before the first substantive defence by the respondent. Article 7. If the parties concerned agree to put their disputes to arbitration by an arbitration committee, it shall be regarded as having agreed to have the case arbitrated according to this set of arbitration rules. SECTION 2 ORGANIZATION Article 8. The arbitration committee shall have an honorary chairman and a number of advisors. Article 9. The arbitration committee shall be composed of a chairman, a number of vice-chairman and a number of members. The chairman shall perform the duties endowed by this set of rules and the vice-chairman may perform the duties and responsibilities of the chairman if they are so entrusted by the chairman. The arbitration shall have secretarial bureau to handle the routine affairs of the committee, under the leadership of the secretary-general. Article 10. The arbitration committee shall maintain a panel of arbitrators, who shall be appointed by the arbitration committee from among Chinese and foreigners who have the special knowledge and practical experience in law, economic relations and trade and science and technology. Article 11. The arbitration committee shall be headquartered in Beijing but also with a sub-committee in the Shenzhen Special Economic Zone and another subcommittee in Shanghai. The sub-committees are integral parts of the arbitration committee. The sub-committees of the arbitration committee each shall have a secretarial section to handle the routine affairs of the branch under the leadership of the secretary-general of the subcommittee. This set arbitration rules applies to the arbitration committee and its sub-committees alike. If a case is handled by a subcommittee, the duties and functions prescribed to be performed by the chairman of the arbitration committee and the secretary-general or the secretarial bureau of the arbitration committee shall be performed by the chairman and the secretary-general or the secretarial bureau of the sub-committee. Article 12. The parties concerned may reach an agreement to have their disputes arbitrated by the arbitration committee in Beijing or by the sub-committees of the arbitration committee in Shenzhen or Shanghai. In the absence of an agreement, the claimant shall decide where the case should be arbitrated, in Beijing, Shenzhen or Shanghai. The first choice of the site shall be the final. Should any dispute arise in regard to places of arbitration, the arbitration committee shall make the decision. CHAPTER II ARBITRATION PROCEEDINGS SECTION 1 ARBITRATION APPLICATION, DEFENCES AND COUNTERCLAIM Article 13. The arbitration proceedings start from the date when the arbitration notice of the arbitration committee is received by the respondent. Article 14. In applying for arbitration, the claimant shall: (1) Submit an application which should specify: 1. the names and addresses (postal code, telephone number, telex number, facsimile number or cable code, if any) of the claimant and the respondent(s); 2. the arbitration agreement on which the claimant bases himself; 3. the situation of the case and points in dispute; and 4. claims of the claimant and the facts and evidence on which the claims are based. The application for arbitration shall be affixed with the signature and/or seal of the claimant and/or the attorney authorized by the claimant; (2) Attach to the application the documents substantiating the facts on which the claims of the claimant are based; and (3) Pay the arbitration fee in advance to the arbitration committee according to the arbitration fee table formulated by the arbitration committee. Article 15. After the arbitration application of the claimant and the documents attached are received the arbitration committee shall examine them and if it deems that the procedures are not complete, it may ask the claimant to complete the procedures, and if it deems that the procedures are complete, it shall issue immediately an arbitration notice to the respondent(s), along with a copy of the arbitration application of the claimant and the documents attached and the arbitration rules and list of the panel of arbitrators and the arbitration fee table. It shall also issue an arbitration notice, along with a copy of the arbitration rules and list of the panel of arbitrators and the arbitration fee table to the claimant. The arbitration committee, after the issuance of an arbitration notice to the claimant and the respondent(s), shall assign a member of the secretarial bureau to take care of the procedural administration of the arbitration case. Article 16. The claimant and the respondent(s) shall each select an arbitrator from the list of the panel of arbitrators provided for or entrust the appointment to the chairman of the arbitration committee within 20 days after the arbitration notice is received. Article 17. The respondent(s) shall, within 45 days after the receipt of the arbitration notice, submit to the secretarial bureau of the arbitration committee the related defence and relevant documents of evidence. Article 18. The respondent(s) shall file a counterclaim, if any, with the arbitration committee within 60 days starting from the date of the receipt of the arbitration notice. The deadline may be extended if the arbitration committee rules that there are valid reasons. In the counterclaim which should be in written form, the respondent(s) shall specify the claims and the reasons of the counterclaim and the facts and evidence on which the claims is based, with the relevant documents of evidence attached. In filing a counterclaim, the respondent(s) shall pay the prescribed amount of arbitration fee in advance according to the arbitration fee table. Article 19. A claimant may revise his claims and a respondent may also revise his counterclaims. However, the arbitration tribunal may refuse to accept such revision requests if it deems the revisions in question are too late and thus have affected the normal progress of the arbitration proceedings. Article 20. In submitting an application for arbitration, defence, counterclaim and relevant documentary evidence and other documents, the parties concerned shall prepare five copies. If the number of concerned parties is more than two, the number of copies submitted shall increase accordingly; if the arbitration tribunal has only one arbitrator, the number of copies submitted may be decreased accordingly. Article 21. The failure to provide a written defences by a respondent and/or the failure to provide a written defences against the counterclaims of the respondent by a claimant does not affect the progress of the arbitration proceedings. Article 22. The parties concerned may authorize arbitration attorneys to handle affairs about arbitration and the arbitration attorneys accepting the authorization shall produce the power of attorney with the arbitration committee. Either Chinese of foreigners can accept such authorization to act as attorneys. Article 23. If a party concerned applies for measures to secure property against risks, the arbitration committee shall submit the application of the party concerned to the intermediate people's court in the place where the respondent resides or the property of the respondent is located for a ruling. SECTION 2 COMPOSITION OF ARBITRATION TRIBUNAL Article 24. The two parties shall each choose one arbitrator from the list of the panel of arbitrators of the arbitration committee or entrust the appointment to the chairman of the arbitration committee. A third arbitrator shall be chosen jointly by the two sides or appointed by the chairman of the arbitration committee with two sides' joint entrustment. If the two sides fail to jointly choose a third arbitrator of fail to jointly entrust the chairman of the arbitration committee to appoint a third arbitrator, the chairman of the arbitration committee can assign a third arbitrator. The third arbitrator shall act as the first arbitrator. The first arbitrator and the other two chosen or appointed arbitrators form an arbitration tribunal and jointly hear the case. Article 25. The two parties concerned may jointly appoint or entrust the chairman of the arbitration committee to appoint an arbitrator as the sole arbitrator to form a tribunal to hear the case alone. If the two parties have agreed on the joint appointment of a sole arbitrator to hear their case alone, but failed to agree on the choice of such a sole arbitrator within 20 days starting from the date when the respondent receive the application for arbitration, the chairman of the arbitration committee shall make the decision. Article 26. If a claimant or respondent fails to appoint or entrust the chairman of the arbitration committee to appoint an arbitrator according to the provisions of Article 16 of this set of rules, the chairman of the arbitration committee shall designate an arbitrator for them. Article 27. If there are two or more claimants and/or respondents in a case for arbitration, the claimants side and/or respondents side shall each appoint one arbitrator from the list of the panel of arbitrators of the arbitration committee through consultation or entrust the chairman of the arbitration committee to appoint one arbitrator. If the claimants and/or respondents side(s) fail(s) to make such appointment within 20 days from the date when the arbitration notice is received, the chairman of the arbitration committee shall do so for them. Article 28. If an arbitrator appointed or chosen has personal interests in a case, the arbitrator shall reveal it to the arbitration committee and ask for withdrawal. Article 29. If a party concerned doubts with good reasons the fairness and independence of an arbitrator appointed or chosen, the party may file a written application with the arbitration committee, requesting the withdrawal of the arbitrator by stating the facts and reasons on which the doubt is based and giving proofs. The request for withdrawal of the arbitrator shall be raised before the first hearing. If the occurrence and knowledge of the reasons for requesting withdrawal happen after the first hearing, the request shall be raised before the end of the last hearing. Article 30. The chairman of the arbitration committee shall decide on whether the arbitrator in question should be withdrawn or not. Article 31. If an arbitrator is unable to perform his duty due to withdrawal or death, or discharge or other reasons, a substitute shall be made according to the original arbitrator appointment or selection procedures. After a substitute is made, the arbitration tribunal shall decide whether or not the hearing held should be repeated completely or in part. SECTION 3 HEARING Article 32. The arbitration tribunal shall hold oral hearings. However, when the parties concerned request or agree not to hold such a hearing and the arbitration tribunal also deems the hearing unnecessary, oral hearings may be omitted and the arbitration tribunal may examine the case and pass an award on the basis of documents only. Article 33. The date of oral hearing shall be decided upon by the arbitration tribunal after consultation with the secretarial bureau of the arbitration committee and the secretarial bureau shall notify the two parties concerned 30 days before the date of hearing. With justified reasons, a party concerned may request for postponement of the hearing and the request shall be raised with the secretarial bureau 12 days before the date of hearing. The decision on the postponement of a hearing shall be made by the arbitration tribunal. Article 34. The notice for the date of the hearings following the first one shall not be restricted by the 30 day limit. Article 35. Cases accepted by the arbitration committee shall be heard in Beijing and they may also be heard in places other than Beijing with approval of the secretary-general of the arbitration committee. Cases accepted by sub-committees of the arbitration committee shall be heard in the location of the subcommittees and they may also be heard elsewhere with the approval of the secretary-general of the sub-committees. Article 36. The arbitration tribunal shall not hear cases in open sessions. If the parties concerned request the case be heard in open sessions, the decision shall be made by the arbitration tribunal. Article 37. For cases heard not in open sessions, the parties concerned or their arbitration agents, witnesses, arbitrators, consulting experts of the tribunal, appraisers designated and related members of the arbitration committee's secretarial bureau shall not reveal to outsiders the substance of the case and the goings-on of the proceedings. Article 38. The parties concerned shall provide evidence for the facts on which their claims or defence are based. The arbitration tribunal may, if it deems it necessary, make investigations and collect evidence on its own initiative. In carrying out investigations or collecting evidence, the arbitration tribunal should request the presence of the parties concerned if it deems it necessary. The absence of a party or two parties concerned shall not affect the action of the arbitration tribunal to carry out the investigations or collect evidence. Article 39. The arbitration tribunal shall consult experts or appoint appraisers on some special problems involved in a case. Such experts or appraisers may be Chinese or foreign organizations or citizens. The arbitration tribunal has the right to request the parties concerned and the latters are obliged to provide or produce to experts/appraisers any related materials, documents or property and goods for inspection, examination and/or appraisal. Article 40. Copies of the expert report and the appraisal report should be sent to the two parties concerned for their respective comments. If any party requests the experts/appraisers to be present at the hearing, the latter may be present upon the approval of the arbitration tribunal for their explanations of the reports when circumstances arise. Article 41. The arbitration tribunal shall examine the evidence provided by the parties concerned to decide upon whether or not to adopt the expert reports and appraisal reports. Article 42. If a party concerned fails to be present at the hearing, the arbitration tribunal shall proceed with the hearing and make an award by default. Article 43. During hearings, the arbitration tribunal may take minutes and/or make tape-recordings. The arbitration tribunal may, if it deems it necessary, order the parties and/or their attorneys, witnesses and/or other persons involved to sign or seal on the minutes about the main points of the hearing. Article 44. If the two parties concerned have reached a settlement by themselves outside the arbitration tribunal, they may ask the arbitration tribunal to make an award and dismiss the case according to the agreement they have reached or may ask for cancellation of the case. If the application for dismissal of the case is filed before the arbitration tribunal is formed, the secretary-general shall make the decision; if the application for dismissal of the case is filed after the arbitration tribunal is formed, the arbitration tribunal shall make the decision. If the party or parties concerned refer again the case dismissed to the arbitration committee for arbitration, the chairman of the arbitration committee shall make the decision on whether or not to accept the case. Article 45. If a party concerned knows or should have known that this set of arbitration rules or any clauses, or details of the arbitration agreement are not observed, but still participates the arbitration proceedings or continue the arbitration proceedings without taking exceptions in writing timely and explicitly the non-observance, it shall be regarded as having given up the right to taking exceptions. Article 46. If the two parties concerned have the desire for mediation or one party concerned has the desire for mediation and with the consent of the other party, the arbitration tribunal may conduct mediation in the process of the arbitration proceedings. Article 47. The arbitration tribunal may conduct mediations by the way it deems fit. Article 48. If any party requests, in the process of mediation, the termination of mediation or the arbitration tribunal deems that there is no possibility of a success in the mediation, the mediation shall be terminated. Article 49. If the two parties concerned have reached reconciliation outside the arbitration tribunal in the process of mediation, the reconciliation shall be regarded as having reached under the mediation of the arbitration tribunal. Article 50. Having reached reconciliation under the mediation of the arbitration tribunal, the parties concerned shall sign a written reconciliation agreement. The arbitration tribunal shall pass the award and dismiss the cases in accordance with the contents of the reconciliation agreement reached by the two parties, except otherwise agreed upon by the parties concerned. Article 51. Should mediation fail, any party shall not, in the subsequent arbitration proceedings, judicial proceedings or other proceedings, quote as the basis for charges, defence and/or counterclaims, any statements, opinions, views or suggestions or facts that have been mentioned by the other party or that have been said, proposed, admitted, ready to accept or negated by the arbitration tribunal in the process of mediation. SECTION 4 RULING Article 52. The arbitration tribunal shall render an arbitration award within nine months after the tribunal is formed. Upon the request of the tribunal, the period may be postponed if the arbitration committee's secretary-general deems it indeed necessary and there are really justifiable reasons. Article 53. The arbitration tribunal shall make the ruling independently and fairly according to facts, the provisions of laws and contracts, in reference to international practices and in observance of the principle of fairness and reasonableness. Article 54. When a case is heard by an arbitration tribunal of three arbitrators, the ruling shall be made by all or the majority of the arbitrators. The opinions of the minority may be attached to the award. Should an arbitration tribunal fail to make a ruling by the majority, the ruling shall be made by the first arbitrator. Article 55. The arbitration award given by the arbitration tribunal shall clearly state arbitration request, facts of disputes, reasons on which the ruling is based, result of the ruling, payment of the arbitration fee as well as the date and place where the arbitration award is given. If the parties concerned, after reaching agreement, do not wish to clearly state the facts of disputes and reasons on which the ruling is based, or if the ruling is made in accordance with the contents of the conciliation agreement reached between the two parties, the award may not contain the facts of disputes and reasons on which the ruling is based. Article 56. An award shall be signed by the majority of the arbitrators unless the ruling is made by the first arbitrator or by a sole arbitrator. The arbitrator with differences of opinion may sign or may not sign the arbitration award. The arbitration shall submit the draft of the arbitration award to the arbitration committee before signing. With the condition of not affecting the independence of the arbitrators, the arbitration committee may call the arbitration awards' format questions to the attention of the arbitrators. The arbitration award shall have the official seal of the arbitration committee. The legal effective date of the arbitration award shall be the date when the arbitration award is given. Article 57. The arbitration tribunal may, if it deems it necessary or the parties concerned so request and it agrees, make an interlocutory or partial ruling on any issue of the case and at any time in the process of arbitration before making the final ruling. The failure of any party to perform the interlocutory ruling shall not affect the continuation of the arbitration proceedings nor prevent the arbitration tribunal from making the final ruling. Article 58. The arbitration tribunal has the right to decide, in the arbitration award, on the arbitration fees and other expenses the two parties should pay the arbitration committee. Article 59. The arbitration tribunal has the right to decide, in the arbitration award, on part of the justifiable expenses to be compensated by the losing party to the winning party for the expenses paid for handling the case. But the amount of compensation shall not exceed 10% of the amount involved in the case won by the winning party. Article 60. The arbitration award is final, binding to both parties. No party shall bring a suit before a law court or make a request to any other organization for altering the arbitration award. Article 61. Any party concerned may request in writing the arbitration tribunal to correct any errors in writing, topography or computation or other errors found in the arbitration award within 30 days after the arbitration award is received. If there are indeed errors, the arbitration tribunal shall make written corrections within 30 days after the request is received. The arbitration tribunal may also make written corrections of any errors it has found within 30 days after the request is received. The arbitration tribunal may also make written corrections of any errors it has found within 30 days after the arbitration award is issued and such corrections shall become part of the arbitration award. Article 62. If any matter is found to have been left out in the ruling, any party may request in writing the tribunal to make supplementary rulings on the matter left out within 30 days after the arbitration award is received. If any matter has been proved to have been left out in the ruling, the arbitration tribunal shall make supplementary rulings within 30 days after the request in question is received. The arbitration tribunal may also make supplementary rulings on its own initiative when it has found any matter left out within 30 days after the arbitration award is issued and the supplementary ruling shall be part of the original arbitration award. Article 63. The parties concerned shall automatically abide by the arbitration award within the time limit specified in the award. If no time limit is specified in the award, the parties shall perform the award immediately. If one party fails to perform the award, the other party may, pursuant to the Chinese law, apply for the enforcement of the award with a Chinese court or according to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitration Awards or other international treaties that China has concluded acceded to, apply for enforcement of the award with a foreign court that has the jurisdiction. CHAPTER III SIMPLIFIED PROCEEDINGS Article 64. Unless otherwise agreed upon by the parties concerned, any case in dispute involving less than RMB500,000 or a case in dispute involving more than RMB500,000 in which one party files a written application and has the consent of the other party, is applicable to these simplified proceedings. Article 65. When a party concerned has filed an application for arbitration with the arbitration committee and the case is deemed acceptable and applicable to simplified proceedings, the secretarial bureau of the arbitration committee shall immediately issue a notice to parties concerned. Unless the parties concerned have already chosen a sole arbitrator from the panel of arbitrators of the arbitration committee, they shall, within 15 days after the receipt of the notice by the applicant, jointly select, or entrust the chairman of the arbitration committee to appoint, a sole arbitrator from the panel of arbitrators of the arbitration committee. If the two parties concerned fail to make the selection or entrustment to appoint within the time limit, the chairman of the arbitration committee shall immediately appoint a sole arbitrator to form an arbitration tribunal to handle the case. Article 66. The respondent shall submit, within 30 days of the receipt of the arbitration notice, his defence and relevant documents of evidence to the arbitration committee. The counterclaim, if any, shall also be submitted together with relevant documents of the evidence within the period. Article 67. The arbitration tribunal shall handle the case by the way it deems fit. It may determine whether to handle the case according to the written materials and evidence or hold oral hearings. Article 68. The parties concerned shall submit to the arbitration tribunal written materials and evidence needed in arbitration according to the requirements and time limit set by the arbitration tribunal. Article 69. In holding oral hearings, after the date of hearing is fixed, the secretarial bureau of the arbitration committee shall notify the parties concerned 15 days ahead of the date of hearing. Article 70. If the arbitration tribunal has decided to hold oral hearings, it shall hold one hearing only. It may hold a second if there is really the necessity. Article 71. In the process of conducting the simplified proceedings, the failure of any party to observe the simplified proceedings shall not affect the going-on of the proceedings or prevent the arbitration tribunal from making the final ruling. Article 72. The alteration of the arbitration claims or the raising of counterclaims shall hot affect the proceedings. Article 73. For oral hearings, the arbitration tribunal shall pass the arbitration award writing 30 days starting from the date of the opening of the hearing or the second of the hearing. For cases handled according to written materials, the arbitration tribunal shall pass the award within 90 days starting from the date of the formation of the tribunal. If it is deemed by the secretary-general of arbitration committee and there are justifiable reasons, such time limits may be postponed. Article 74. The provisions of the chapter are applicable to the relevant provisions of the other chapters of this set of rules. CHAPTER IV SUPPLEMENTARY PROVISION Article 75. The Chinese language shall be the official language of the arbitration committee. If the parties concerned have agreement concerning the language to be used in arbitration, the agreement shall be followed. At hearings, if parties concerned or their attorneys or witnesses need interpreters, the secretarial bureau shall provide interpreting services for them or the parties concerned may bring their own interpreters. The arbitration tribunal and/or the secretarial bureau of the arbitration committee shall, if they/it deem(s) necessary, ask the parties concerned to translate the documents and evidence they have provided for into Chinese or other languages. Article 76. All the arbitration documents, notices and materials may be delivered to the parties concerned and/or their attorneys by messengers or by registered mails or by air express mail service, fax, telex, telegraph or any other means the secretarial bureau of the arbitration committee deems fit. Article 77. Any written communication from the arbitration committee to the parties concerned and/or their attorneys is deemed to have been received if it is delivered to the receiver personally or to the addresses of business operations or habitual residence or mailing addresses; or if none of these can be found after making a reasonable inquiry. A written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by an other means which provides a record of the attempt to deliver it. Article 78. The arbitration committee may collect from the parties concerned, in addition to the arbitration fees according to the arbitration fee table, reasonable fees as actually spent, including arbitrators' remuneration and their travel and boarding expenses in dealing with the case and fees and expenses for experts, appraisers and interpreters appointed by the arbitration tribunal. The arbitration committee may also collect certain amount of fees according to the amount of work done or actual expenses incurred if a case is dismissed after the parties have reached a settlement agreement by themselves. Article 79. If the arbitration agreement or arbitration clause in a contract specifies that the arbitration shall be conducted by the China International Economic and Trade Arbitration Committee or its sub- committees or by the former Foreign Trade Arbitration Committee of the China Council for the Promotion of International Trade or the Foreign Economic and Trade Arbitration Committee, the case shall be deemed that the two parties concerned have agreed to have the cases arbitrated by the China International Economic and Trade Arbitration Committee or its sub-committees. Article 80. This set of arbitration rules shall come into force as of October 1, 1995. For cases accepted by the arbitration committee or its sub-committees before the implementation of this set of arbitration rules, the arbitration rules in force at the time of the cases' acceptance shall apply or this set of arbitration rules can be applied if the parties concerned so agree. Article 81. The power of interpretation of this set of arbitration rules rests with the arbitration committee. |
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