The Beijing Arbitration Commission Arbitration Rules
(Discussed and Adopted by the First Session of the Beijing Arbitration Commission)
Chapter I General Provisions
Article 1
For the purpose of guaranteeing tjat arbitrations of economic disputes are carried out fairly and in a timely fashion and for the purpose of protecting the parties¡¯ legal rights and interests, the Rules are formulated by the Beijing Arbitration Commission (hereinafter referred to as the ¡°Commission¡±) pursuant to 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
Contractual disputes and other disputes related to property rights and interests that arise between citizens, legal persons and other organizations who share equal standing may be submitted to the Commission to arbitrate pursuant to the laws.
The Commission does not accept the applications for arbitration involving the following disputes:
1) Disputes involving marriage, adoption, guardianship, support or inheritance;
2) Administrative disputes which shall be handled by administrative organizations according to the laws; and
3) Labor disputes and internal contractual disputes within agricultural collective economic organizations.
Article 3
When parties choose arbitration as the method of settling disputes, they must voluntarily enter into an Arbitration Agreement. If such an Arbitration Agreement is absent, then an application for arbitration submitted by any of the parties shall not be accepted by the Commission.
The circumstances under which the parties make an agreement for an arbitration application shall be deemed met when they agree to settle their disputes by arbitration according to the Rules.
Article 4
An Arbitration Agreement shall involve arbitration clauses which are contained in contracts and/or other written or supplemental agreements, and for the purpose of requesting arbitration. Such agreements may be reached either before or after the dispute arises.
An Arbitration Agreement shall cover the following provisions:
(1) A declaration of will for applying arbitration;
(2) Matters for arbitration; and
(3) A declaration of will choosing the Commission as the arbitration organization.
Article 5
An arbitration agreement shall exist independently. The validity of an arbitration agreement shall not be affected by any amendment, cancellation, termination or invalidity of a contract.
The Arbitral Tribunal has the power to affirm the validity of a contract.
Article 6
A party objecting to the validity of an arbitration agreement shall apply to the Commission to make a decision or submit to the People¡¯s Court to make a ruling. If one party applies to the Commission to make a decision and the other party applies to the People¡¯s court to make a ruling, the ruling made by the People¡¯s Court shall prevail.
A party¡¯s objection to the validity of an arbitration agreement shall be raised before the initial hearing is conducted by the Arbitral Tribunal. If the parties agree not to have hearings, the objection shall be raised before the initial Statement of Defense is submitted.
Chapter II Application and Acceptance
Article 7
The parties applying for arbitration shall be in accordance with the following conditions:
(1) there must be an arbitration agreement;
(2) there must be a specific arbitration claim accompanied by the facts and reasons on which it is based; and
(3) the dispute must fall within the jurisdiction of the Commission.
Article 8
The Claimant applying for arbitration shall submit the arbitration agreement, the Application for Arbitration to the Commission. The number of copies of these materials shall be in accordance with the number of parties that constitute the Respondent. If the Claimant raises more than two different claims, the Application and its copies may be submitted respectively.
Article 9
The Application for Arbitration shall specify the following items:
(1) the names, gender, ages, occupations, work units and addresses of the Claimant, the Respondent or/and their designated representatives and, where a party is a legal person or other organization, the name, address of the organization and the name and position of its legal representative or the chief responsible person;
(2) the arbitration claim and the facts and reasons on which the claim is based; and
(3) the evidence and the source of the evidence, the names and addresses of witnesses.
The Application shall be signed or sealed by the Claimant or the representative designated by the Claimant.
Article 10
The Commission shall accept the Application and give notice of acceptance to the parties promptly or within 5 days from the date of receipt of the Application for Arbitration, so long as acceptance conditions have been satisfied. If an Application for Arbitration does not accord with the conditions of acceptance, the Commission shall notify the party of its refusal of the Application and give reasons to the party in written form.
If an Application for Arbitration does not fulfill the above conditions in Article 9, the Commission shall ask the Claimant to make rectification. It shall be deemed as a non-application if rectification is not made within the given time.
Article 11
The Commission shall deliver the Rules and the arbitrators list to the Claimant within 10 days after accepting an Application for Arbitration and deliver a copy of the Application, the Rules and the arbitrators list to the Respondent.
The Respondent shall submit a Statement of Defense within 15 days after receiving the copy of the Application for Arbitration. The Commission shall deliver a copy of the Statement of Defense to the Claimant within 5 days after receiving the Statement of Defense. If the Respondent has not submitted the Statement of Defense, the arbitral proceedings shall not be affected.
Article 12
The Claimant shall pay both the case acceptance fee and part of the case handling fee in advance, while applying for arbitration, according to the Arbitration Fee Standard set up by the Commission.
The Claimant may apply for delay of the payment upon the approval of the Commission, in cases where he/she has difficulty in paying the arbitration fee in advance. If the Claimant neither pays the fees in advance nor applies for a delay of payment, it shall be deemed that the Claimant has withdrawn the Application for Arbitration.
The requirements for counterclaims shall be in accordance with the provisions for the application for arbitration of these Rules.
Article 13
The Claimant may waive or amend the claims. The Respondent may admit or contradict the claims. The Respondent shall submit a written counterclaim to the Commission, if any, within 45 days after receiving the Notice of Arbitration. Where the Tribunal deems that there is a just reason, the time-limit may be extended.
The Commission shall deliver a copy of the application for counterclaim to the Claimant within 5 days after receiving the counterclaim.
The Claimant shall submit a Statement of Defense in written form to the Commission within 15 days after receiving the copy of counterclaimant. The arbitral proceedings shall not be affected if the Claimant fails to submit a Statement of Defense.
Article 14
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 pursuant to the relevant provisions of the Civil Procedures Law.
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 15
The parties and the legal agents of the parties may designate no more than two representatives to carry out activities during the arbitral proceedings. In designating representatives to carry out activities in arbitral proceedings, the parties shall submit to the Commission for authorization.
Chapter III the Formation of the Arbitral Tribunal
Article 16
The Tribunal shall be composed of one or three arbitrators. A Tribunal consisting of three arbitrators shall set a chief arbitrator.
For cases where the total sum of dispute does not exceed RMB 300,000, and in which the facts and the relationship between the rights and obligations are clear, the case may be heard by a sole arbitrator if the parties so agree. The sole arbitrator shall hear the case pursuant to the principles of simplificity and promptness, and the period and form of hearing shall not be limited by the provisions of Chapter 2, 3 and 4 of the Rules.
Article 17
If the parties agree to form a tribunal with three arbitrators, they shall respectively appoint or entrust the Chairman of Arbitration to designate an arbitrator, and mutually appoint or entrust the Chairman of the Commission to designate a third arbitrator. The third arbitrator is the chief arbitrator.
If the parties agree to form a tribunal with one arbitrator, they shall mutually appoint or entrust the Chairman of the Commission to designate a sole arbitrator.
Article 18
If, within 15 days from the date of receiving the Notice of Arbitration, the parties fail to make an agreement on the formation of the Tribunal or to appoint arbitrators, the arbitrators shall be chosen by the Chairman of the Commission.
Article 19
The Commission shall give written notice to the parties of the formation of Tribunal within 5 days after the Arbitral Tribunal is formed.
In any of the following circumstances, the parties shall re-appoint an arbitrator within 5 days after receiving the Notice of Arbitration, according to the stipulations in Article 17 and 18 of this chapter:
(1) The arbitrtaor is not available to handle the dispute due to on-business trip or going abroad;
(2) he/she cannot conduct arbitration activities resulting from illness;
(3) he/she must withdraw according to laws; or
(4) other situations, in which the arbitrator can not perform his/her duties.
Article 20
Under any of the following circumstances, an arbitrator must withdraw from the Tribunal, and the parties also have the right to challenge the arbitrator, where:
(1) the arbitrator is a close relative of one of the parties or of the party's representatives;
(2) the arbitrator has an interest in the case;
(3) the arbitrator has any other relationship with one of the parties or their representatives such that the fairness of the arbitration may be affected; or
(4) the arbitrator has met with a party involved or its representative in private or has accepted entertainment or gifts from a party involved or its representative.
The above phrase "other relationship" in paragraph (3) of this Article shall include any of the following situations:
(a) the arbitrator has previously advised on the case;
(b) the arbitrator serves in the same unit as one of the parties or their representatives;
(c) the arbitrator has served or is serving as a legal consultant or representative for any of the present parties;
(d) the arbitrator has furthered his/her own interests by introducing an advisor or representative to a party involved in the arbitration; and
(e) there are other matters that may affect the impartiality of the arbitration.
Article 21
The parties have the right to submit an application to challenge an arbitrator(s) before the first hearing, but shall specify the reasons for such application. If the party gets the information for the challenge after the first hearing, the challenge may be submitted before the closing of the last hearing.
Article 22
The Chairman of the Commission shall decide whether an arbitrator shall withdraw from the Tribunal or not. Where the Chairman serves as an arbitrator, his/her withdrawal shall be decided by a session of the Committee of the Commission.
Article 23
After appointing 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 consideration whether the previous arbitral procedures shall be repeated.
Article 24
If an arbitrator has met privately with any of the parties or their representative, or has accepted entertainment or gifts from any of the parties or their 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. In such cases, the Commission shall have the power to terminate the arbitrator's duty.
Chapter IV Hearings and Drafting Arbitral Awards
Article 25
Arbitration shall be conducted by hearings. If the parties have agreed on having no hearings, the Tribunal may render an award based on the Application for Arbitration, the Statement of Defense and other materials.
Article 26
Arbitration shall be conducted in private. The arbitration may be conducted in public if the parties agree to do so, except for cases that concern state secrets.
Article 27
The Commission shall notify the parties of the date of the hearing at least 10 days in advance. If so agreed by the parties and approved by the Tribunal, the hearing date may be set ahead of the schedule. A party may request a postponement of the hearing date for just reason at least 7 days prior to the scheduled date of the hearing. The Tribunal shall decide whether to postpone the hearing.
Article 28
If the Claimant fails to appear before the Tribunal and is without a just reason after receiving the written notice or leaves the hearing prior to its conclusion without the permission of the Tribunal, the Claimant shall be deemed to have withdrawn his/her Application for Arbitration. If the Respondent fails to appear before the Tribunal and is without a just reason after receiving the written notice or leaves the hearing prior to its conclusion without the permission of the Tribunal, the Tribunal may render the award in the Respondent's absence.
Article 29
The parties shall provide evidence in support of their claims. If the parties provide no evidence, the Tribunal shall affirm the facts of cases and render awards in accordance with the evidence presently possessed.
Where the Tribunal deems it necessary, it may collect evidence on its own initiative.
Article 30
Documentary evidence shall be submitted in the form of the original documents. Physical evidence shall be submitted in the form of the original articles. If it is proven difficult to submit an original document or original article, a reproduced article, photograph, copy or abridged version of a document may be submitted.
Foreign language documentary evidence which is submitted shall be attached to Chinese translations.
Article 31
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.
If the parties so request or the Tribunal deems it necessary, the Tribunal shall request the appraiser to attend the hearing. The parties may question the appraiser.
Article 32
Evidence shall be presented at the hearings and cross-examined by the parties.
Article 33
When 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 Grassroots People¡¯s Court of the location of the evidence.
Article 34
The parties shall have the right to present arguments during the course of arbitration. At the closing of the arguments, the chief arbitrator or sole arbitrator shall request the final opinions from the parties.
Article 35
The Tribunal shall make a written record of a hearing. The parties and other participants in arbitration have the right to apply to correct the written record, if the parties deem that there exist omissions or errors in the record of his/her statements. The application for dealing with omissions or errors shall be noted in the record, if the Tribunal does not allow correcting the record.
The written record shall be signed or sealed by arbitrators, recorder, parties, and other arbitral participants.
Article 36
If, after an Application for Arbitration has been submitted, the parties reach a settlement of the dispute on their own outside the Tribunal, they may request the Tribunal to render an award based on their settlement or the Application for Arbitration may be withdrawn.
Article 37
If, after a settlement agreement is reached and the Application for Arbitration has been withdrawn, the party/parties pull back from the settlement, it/they may re-file an Application for Arbitration according to the Arbitration Agreement.
Article 38
The Tribunal may conduct mediation of the dispute before the arbitral award is rendered. If the parties volunteer to conciliate, the Tribunal shall mediate. If the dispute cannot be settled through mediation, the Tribunal shall promptly render an award.
The Tribunal shall draft the mediation statement or an arbitral award according to the conciliation settlement, if the parties reach a conciliation settlement through mediation. The mediation statement has the same legal binding effect as the arbitral award.
Article 39
The written mediation statement shall specify the claim statement(s) and the results of the conciliation agreement reached by the parties. The written mediation statement shall be signed by the arbitrator(s), affixed with the Commission¡¯s seal and delivered to both parties.
The written mediation statement shall become legally effective after both parties have signed upon receipt.
If a party pulls back from the written mediation statement before such party has signed upon receipt, the Tribunal shall promptly render an award.
Article 40
The chief arbitrator or sole arbitrator shall request the final opinions of the parties before rendering the arbitral award.
The award shall be rendered according to the majority opinion of the Tribunal. Any disagreement by the minority may be recorded in writing. If the Tribunal cannot reach a majority opinion, the award shall be rendered in accordance with the decision of the chief arbitrator.
Article 41
The Tribunal may render an interim or partial award while arbitrating a dispute, if the facts related to the part of the dispute are clear.
A party's failure to perform the interim or partial award shall not affect the arbitral procedures and the Tribunal¡¯s rendering the arbitral award.
Article 42
The Tribunal shall render an award within four months after the formation of the Tribunal. If an extension of the time limit is required due to special circumstances, the chief arbitrator or sole arbitrator shall submit an application to the Chairman of the Commission and, upon the approval thereof, the time limit may be extended appropriately.
Article 43
The award shall specify the Claim Statement, the facts of the dispute, the grounds for the award, results of the award, the sharing of arbitration fees and the date of the award.
If the parties so agree, the facts of the dispute and the grounds for the decision may be omitted from the award.
The award shall be signed by the arbitrators. An arbitrator holding dissenting opinions may choose to sign or not sign the award.
Article 44
The Commission shall affix its seal to the award after the arbitrators have signed it.
Article 45
The award shall be legally effective as of the date it is made.
Article 46
The Tribunal shall rectify any typographical or computational errors in the award, and shall make additions or corrections in respect to any items which have been decided by the Tribunal but omitted from the award. If the Tribunal omits any claim in the Application for Arbitration in rendering the award, it shall issue a supplementary award including the omitted item(s).
If the parties discover that any of the above circumstances exists, they may, within 30 days from the date of receiving 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 47
A party may apply to the Intermediate People's Court of Beijing for revoking an award within six months after receiving the award, if the party can present evidence to prove any of the following circumstances:
(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 power 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 48
The parties are required to enforce the award within the time limit specified in the award. If no time limit is specified in the award, the parties shall enforce the award immediately.
If one party fails to enforce 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 Procedures Law.
Article 49
Pursuant to the judgment of the disputes, the Commission shall charge the case handling fee, including:
(1) travel and accommodation costs and other reasonable costs for the arbitrator to hear the case;
(2) travel and accommodation costs, subsidy for the loss of working time and other reasonable costs for the witness, appraiser and translator to attend the hearings;
(3) advising, appraising, investigating and translating costs;
(4) the costs related to delivering and duplicating the materials and documents;
(5) other reasonable charges burdened by the parties.
The costs related to paragraphs (2) and (3) in this article shall be paid in advance by the applicant.
Article 50
The arbitration fees shall be borne by the losing party in principle. If a party wins part of the case and loses part of the case, the Tribunal shall determine the proportion of each party's share of fees based on each party's respective liabilities. If the parties reach a conciliation 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.
Article 51
If the Tribunal agrees to repeat the procedure of a case pursuant to Article 61 of the Arbitration Law, the Commission shall not charge application fees.
Where the Tribunal makes corrections or additions or makes a supplementary award according to Article 46 of the Rules, the Commission shall not charge any additional fees.
Article 52
If the Claimant withdraws the Application for Arbitration or the parties reach a settlement agreement after the Application for Arbitration has been accepted by the Commission but before the Tribunal has been formed, the Commission shall refund the arbitration fees paid in advance.
If the Claimant withdraws the Application for Arbitration or the parties reach a settlement agreement after the Tribunal has been formed, the Commission may refund part of acceptance and case handling fees that were paid in advance depending on circumstances.
Chapter V Supplementary Provisions
Article 53
If the law stipulates time periods for arbitration, such stipulations shall be applied. If the law has no such stipulations, the provisions used for time periods for litigation procedures shall be applied.
Article 54
Unless the parties have other agreements or the Tribunal has other requirements, the documents, notifications and materials which are relevant to arbitration procedures may be delivered to the parties or their representatives directly in person, or by mail, telegraph, and fax.
Article 55
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.
Article 56
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 57
If any party must extend the time period due to events beyond its control or due to any other just reason, it may apply for extension of the time period accordingly within 10 days of the resolution of such events or causes. The Tribunal shall decide whether or not to approve such an extension.
Article 58
The parties may submit disputes to the BAC pursuant to the Arbitration Law and these Rules. Arbitration and these Rules will also apply where the parties reached an arbitration agreement before the validity of these Rules and made the supplementary agreement upon the selection of the BAC; or else the original arbitration agreement will be invalid.
Article 59
The Beijing Arbitration Commission has the power to interpret the Rules.
Article 60
The Rules shall come into effect as of the day in which it is adopted by the Beijing Arbitration Commission.
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