Hangzhou Arbitration Commission Arbitration Rules
(Passed by the First Session of the Hangzhou Arbitration Commission (“HAC”) on Aug.26, 1996, revised by the Third Session of the HAC on July 5, 2003, revised 2nd time by the Fourth Session of the HAC on July 26, 2011, revised 3rd time by the Fifth Session of the HAC on June 3, 2013, revised 4th time by the Fifth Session of the HAC on March 26, 2015. Effective as of January 1, 2016.)
Chapter I General Provisions
Article 1 These Rules are stipulated according to “The Arbitration Law of People’s Republic of China” (hereinafter referred to the Arbitration Law) and other related laws in order to ensure impartial and timely arbitration of the case and protect the parties’ legal rights and interests as well as to promote sound development of the social economy.
Article 2 The HAC independently and impartially resolves contractual disputes (including foreign related contractual disputes) and other disputes over rights and interests in property between natural persons, legal persons and other organizations (hereinafter referred to the parties) .
The HAC does not accept the following disputes:
(1) Marriage , adoption , guardianship , raising , inheritance disputes;
(2) Disputes that have been stipulated by law to be settled by administrative organs;
(3) The labor disputes and disputes over contracts for undertaking agricultural projects within agricultural collective economic organizations.
Article 3 The HAC is constituted by one Chairman, two to four Vice-Chairmen and seven to eleven commission members. The Chairman shall perform the functions and duties vested in him/her by the Arbitration Law and these Rules while a Vice Chairman or Secretary-General may perform the Chairman’s functions and duties with the Chairman’s authorization.
The HAC establishes Secretariat, and the Secretariat of the HAC (the "Secretariat") shall handle the day-to-day affairs of the HAC under leadership of the Secretary-General.
The HAC may establish special arbitral institution or sub-commission as per required, and such arbitral institution or sub-commission is an integral part of the HAC. The HAC may also stipulate special arbitration rules or summary procedure separately, and such rules and procedure have same legal force as the these Rules. Unless otherwise agreed upon by the parties, it’s deemed that the parties agree that the dispute case which is arbitrated in the special arbitral institution or sub-commission established by the HAC applies to the related special arbitration rules of the special arbitration institution or sub-commission. In case the special arbitration institution or sub-commission has no special arbitration rules, the related stipulations by these rules and the HAC shall apply.
Article 4 The HAC establishes Panel of Arbitrators (including foreign arbitrators).
The arbitrators are appointed from fair and impartial people who have professional knowledge and practical experiences in the law, the economy and trade, the science and technology etc..
Article 5 Unless specified otherwise by the law or regulations, the arbitral tribunal, the parties, other relevant participants have confidentiality obligations for any commercial secrete known during the arbitral proceedings and other information which may affect the business reputation of the parties.
Chapter II Arbitration Agreement
Article 6 In case the parties agree to apply for the arbitration to the HAC, it’s deemed that the parties agree to arbitrate in accordance with these Rules. However, in case the parties have another agreement on the arbitration procedure and the HAC consents, the agreement can be applied.
Article 7 The Parties shall voluntarily reach arbitration agreement if both parties would resolve dispute through arbitration.
Article 8 An arbitration agreement is an agreement by parties to submit to arbitration all or certain disputes which have arisen or which may arise in connection with the legal relationship between the parties.
An arbitration agreement includes an arbitration clause in a contract or any other written agreement to arbitrate. An arbitration agreement shall include but not limited to contractual instruments, letters, telegrams, telexes, facsimiles, EDIs and e-mails and any other forms of communication where the contents are visible.
In case the master contract and the accessory contract have same main body, if the master contract has specified the arbitration agreement, and the accessory contract does not specify the dispute resolving way or specify that the lawsuit is dispute resolving way, a party applies for arbitration on related disputes over the master contract and the accessory contract to the arbitration institution, and the other party attends the arbitration and defends, it’s deemed that the other party agrees to submit the disputes over the accessory contract to the arbitration.
Article 9 An arbitration agreement shall be independent of and separate from the principal contract in which it is contained. The validity of an arbitration agreement shall not be affected by the modification, rescission, termination, invalidity or revocation of the principal contract. The arbitral tribunal has the right to confirm the validity of the arbitration agreement.
Article 10 A jurisdictional objection or an objection to the existence or validity of an arbitration agreement shall be raised in writing one day before the first hearing. For a documents-only arbitration, the written objection shall be raised prior to the expiry of the time limit for the defence. If a party has not raised any writing objections pursuant to the provisions of the preceding, it shall be deemed to waive the right for raising the objection, and the HAC has or obtains jurisdiction over the arbitration case.
The HAC will make a decision to the treatment on the objection raised by the party. If necessary, the HAC may also authorize the arbitral tribunal to make decision. The HAC may make a decision based on prima facie evidence that it has jurisdiction over the arbitration case, and such a decision shall not prevent the HAC from making a new decision on jurisdiction based on facts and/or evidence found by the arbitral tribunal during the arbitral proceedings that are inconsistent with the prima facie evidence.
The arbitration shall proceed notwithstanding an objection to the arbitration agreement and/or jurisdiction over the arbitration case is raised by the party to the HAC.
If a party objects to the validity of an arbitration agreement, it may make an application to both the HAC and the competent People's Court for a decision on the issue. If the HAC accepts the objection application before the People’s Court and has made a decision, the decision is valid; if the HAC accepts the objection application but has not made a decision, and the People’s Court has accepted the objection application, the HAC will not make any decision.
Chapter III Application for Arbitration and Acceptance of Case
Article 11 The party shall meet the following requirements when application for arbitration:
{C}(1) {C}The parties have the arbitration agreement and other written statement which shows agreement to submit the dispute to arbitration;
{C}(2) {C}The parties have the claims and the facts and grounds on which the claims are based;
{C}(3) {C}Within jurisdiction of the HAC.
Article 12 In the circumstances set out below, it’s deemed that both parties agree to submit the dispute to the HAC for arbitration:
{C}(1) {C}The parties have agreed to arbitrate in accordance with these Rules, but not appointed the arbitration institution;
{C}(2) {C}The arbitration agreement or the arbitration clause does not state the name of arbitration institution accurately; however, it can be presumed to be the HAC from the text and the logic;
{C}(3) {C}No arbitration agreement. One party applies for arbitration, the HAC sends the notice of arbitration, and the other party agrees to arbitrate and signs in the arbitration agreement or the records, however if the other party gives no reply within ten days after the date of the receipt of the notice of arbitration, it’s deemed to refuse to accept arbitration.
{C}(4) {C}The parties agree to submit the depute for arbitration to the arbitration institution or to the People’s Court, or two or more arbitration institutions, and one party applies for arbitration, the other party raises no objection within the time limit specified in clause 2 in article 20 of the Arbitration Law.
Article 13 The party shall submit the arbitration agreement, Request for Arbitration and its duplicate copy, proof of the party’s identity and related evidence to the HAC when applying for arbitration.
The Request for Arbitration shall contain the following information:
{C}(1) {C}The names, gender, age, occupation, company, addresses, means of contact of the Parties; name and address of the legal person or other organization, the name, position, the means of contact of the legal representative or the person in charge;
{C}(2) {C}The claims and the facts and grounds on which the claims are based;
{C}(3) {C}The evidence and the source of those evidence, and the names and addresses of its witnesses.
Article 14 The HAC shall accept the Application for Arbitration within 5 days of its receipt of Request for Arbitration and its attachments if it finds that the requisite requirements for acceptance are met, and shall send to the Claimant a Notice of Case Acceptance, a set of the Rules and the HAC's Panel of Arbitrators and other related information. The HAC shall notify the claimant of depositing an advance on costs, calculated in accordance with the provisions of the Arbitration Fee Schedule. The arbitration fee includes the case acceptance cost and the case handling cost. In case the Party’s Request does not specify the amount in dispute, the Secretariat of the HAC shall determine the arbitration fee based on the information submitted by the Party. If a party applying for arbitration has neither deposited the advance on costs nor applied for deferment, it shall be deemed to have withdrawn its Application for Arbitration; if the submitted information is considered to be incomplete or not meet what stipulated in these Rules, the claimant may be requested to supplement or correct within a definite time; if the HAC considers the case does not meet the acceptance requirement, it will not be accepted.
Article 15 After the HAC accepts the Request for Arbitration, within five days, the HAC shall serve related Notice of Arbitration together with one duplicate copy of the Request for Arbitration on the Respondent, and serve these Rules and the HAC’s Panel of Arbitrators on the parties.
Article 16 The Respondent shall file a Statement of Defence in writing to the HAC within fifteen (15) days (thirty days if the foreign, Hongkong, Macao or Taiwan party is concerned) from the date of its receipt of the Notice of Arbitration. The HAC shall serve the duplicate copy of Statement of Defence on the Claimant within five (5) days after the receipt of the Statement of Defence. The conduct of the arbitral proceedings shall not be affected by the Respondent's failure to submit its Statement of Defence.
Article 17 The Claimant may waive or amend the Request for Arbitration, and the Respondent may admit or refute the Request for Arbitration, and has the right to file a counterclaim, and waive or amend the counterclaim.
The Respondent shall file a counterclaim, if any, in writing within the time period of defence stipulated in these Rules, containing the facts and grounds the defence is based on, with related evidence attached. If the counterclaim is not submitted within the stipulated period of time, the Arbitral Tribunal shall decide whether to accept the counterclaim.
A party shall deposit an advance on costs within three (3) days after filing a counterclaim, and it’s deemed to waive the counterclaim if the party fails to deposit an advance on costs.
The HAC shall serve the duplicate copy of the Statement of Counterclaim on the Claimant within five (5) days after the receipt of the Statement of Counterclaim filed by the Respondent.
The Claimant shall submit its Statement of Defence in writing within fifteen (15) days (thirty days if foreign, Hongkong, Macao or Taiwan party is concerned) from the date of its receipt of the duplicate copy of the Statement of Counterclaim. The conduct of the arbitral proceedings shall not be affected by the Claimant's failure to submit its written Statement of Defence.
The Arbitral Tribunal will order the consolidation of the claim and the counterclaim.
In case both parties sign more than one economy contract and such contracts are inseparable due to several reasons, such cases can be consolidated to one case, and only one award is made.
Article 18 An application to amend the claim or counterclaim shall be made in writing before first oral hearing ending. The application shall be decided by the Arbitral Tribunal, or if the Arbitral Tribunal has not been constituted, by the HAC.
After the first oral hearing, the parties shall not amend the Request for Arbitration or the Counterclaim.
During arbitration, if the nature of legal relationship or the effectiveness of civil behavior supported by the party is inconsistent with the verification made by the arbitral tribunal based on the fact of case, the arbitral tribunal may expound to the party that the party may select whether to amend the Request for Arbitration or the Statement of Counterclaim at its disposal. The conduct of the arbitral proceedings shall not be affected if the party does not amend.
No matter the Claimant amends the Request for Arbitration or the Respondent amends the Statement of Counterclaim, the Arbitral Tribunal shall give the other party fifteen (15) days as the defence period. If one party applies to amend during the hearing, and the other party agrees to defend during the hearing, the arbitral proceedings will continue.
The amendment referred in this clause includes adding or changing the number, variety or scope of the Request for Arbitration or the Statement of Counterclaim. If the amendment exceeds the target amount of the Request for Arbitration or the Statement of Counterclaim, the party shall make up the arbitration fee as per what stipulated by the HAC.
Before first oral hearing ending, the arbitral tribunal may, on the application of the party, decide whether or not to superadd the arbitration party based on the case condition.
Article 19 A party may apply for an order for the preservation of property if the enforcement of any award that it may obtain subsequently is likely to be impossible or difficult, as a result of the conduct of the other party or other factors.
If a party applies for an order for the preservation of property, the HAC shall issue a letter to submit the application of the party to the competent People’s Court after the Claimant has deposited an advance on costs.
Article 20 A party may be represented by its authorized representative(s) in handling matters relating to the arbitration. In such a case, a Power of Attorney and proof of the authorized representative's identity shall be forwarded to the HAC by the party or its authorized representative(s). The Power of Attorney shall set out the matters specifically entrusted and the scope of the authorized representatives' authority. The authorized representative shall be specially authorized by the party for admitting, waiving and amending the Request for Arbitration or the Statement of Counterclaim, choosing the arbitrator, settlement and requesting conciliation.
The party may authorize one or two lawyers or other representatives for arbitration. If the party considers it necessary, with the consent of the arbitral tribunal, the authorized representatives can be added.
If the matters specifically entrusted and the scope of the authorized representatives' authority are amended or rescinded, the party shall notify the HAC in writing. The prior arbitral proceedings shall not be affected thus.
The party shall also submit the copies of corresponding number as per the number of the arbitrators and the people number of other party when a party submits the Request for Arbitration, the Statement of Defence, the Statement of Counterclaim and other related information in accordance with these Rules.
Chapter IV Composition of Arbitral Tribunal
Article 21 The arbitral tribunal may be composed of three arbitrators or one arbitrator. In case of three arbitrators composition, the presiding arbitrator shall be nominated.
Article 22 The parties shall agree upon the composition of the arbitral tribunal and appoint the arbitrator within ten (10) days (twenty (20) days in case foreign, Hongkong, Macao or Taiwan party is concerned) from the date of the receipt of the Notice of Acceptance or the Notice of Arbitration respectively.
Article 23 In case the parties agree that three arbitrators constitute the arbitral tribunal, the parties shall separately nominate or separately entrust the Chairman of the HAC to appoint an arbitrator, and the 3rd arbitrator who the parties jointly nominate or jointly entrust the Chairman of the HAC to appoint is the presiding arbitrator.
In case the parties agree that one arbitrator composes of the arbitral tribunal, both parties shall jointly nominate or jointly entrust the Chairman of the HAC to appoint an arbitrator.
Where the parties have failed to agree with the arbitral tribunal composition and to appoint the arbitrator within the time limit stipulated by Article 22 in these Rules, the Chairman of the HAC shall decide the composition of the arbitral tribunal and appoint the arbitrator for the parties.
Article 24 Where there are two or more Claimants and/or Respondents in one party, the party shall so agree internally and jointly nominate the arbitrators or entrust to appoint the arbitrators. If the party fails to jointly appoint within the time limit, the Chairman of the HAC shall decide the composition of the arbitral tribunal and appoint the arbitrators for the party.
Article 25 The HAC shall notify the both parties and the arbitrator of the composition of the arbitral tribunal in writing within five (5) days from the date of forming of the arbitral tribunal.
Article 26 The secretary handling the case of the arbitral tribunal shall send the related information submitted by the party to the arbitrator of the arbitral tribunal within ten (10) days from the date of forming of the arbitral tribunal.
Article 27 In the circumstances set out below, the arbitrator shall have an obligation to withdraw from his appointment and the parties shall have a right to challenge the arbitrator:
{C}（1） {C}The arbitrator is a party to the arbitration, or a close relative of any party or any party's authorized representatives;
（2） The arbitrator has personal interests in the dispute；
（3） The arbitrator has any other relationships with any party or its authorized representatives which may affect the arbitrator's impartiality; or
{C}（4） {C}The arbitrator met with any party or its authorized representatives in private, or accepted from any party’s or its authorized representatives’ offers of entertainment or gift.
“Other relationships”in the above (3) mean:
{C}1. {C}Have provided the consultation in advance for the accepted case;
{C}2. {C}The law counsel or the representative of the party, or the former law counsel of the party less than two years ago and now not law counsel;
{C}3. {C}Working in the same company with the party or its representative, or worked in the same company less than two years ago and now not work in the same company;
{C}4. {C}Recommended or introduced the representative for the party to the case;
{C}5. {C}The witnesses, expert witnesses, inspectors, defender or agent ad litem of this case or the case related to this case.
Article 28 A challenge shall be raised before the first oral hearing in writing and accompanied by facts and grounds of the challenge and supporting evidence. A challenge based on circumstances happened and known after the first hearing may be raised prior to the opening of the next hearing at the latest. If the parties agree on documents-only arbitration, a challenge shall be raised within ten (10) days after the receipt of the Notice of Formation of Arbitral Tribunal unless the party becomes aware of a reason for a challenge after such time limit.
The Chairman of the HAC shall make a decision on the challenge. In case the Chairman of the HAC acts as the arbitrator, all the members of the HAC shall make a decision on the challenge collectively.
An arbitrator who has been challenged shall continue to serve on the arbitral tribunal until a final decision on the challenge has been made by the HAC.
Article 29 The arbitrator shall be replaced in the circumstances set out below after the formation of the arbitral tribunal and before an award:
{C}(1) {C}The arbitrator becomes unable to conduct the arbitration as a result of health, removal from HAC’s Panel of Arbitrators, dismissal or other reasons;
{C}(2) {C}Arbitrator is prevented from fulfilling functions as an arbitrator to cause a serious delay in the arbitral proceedings, and fails to settle within the time limit after the HAC sends “Notice of Case Reminder”.
{C}(3) {C}For the case that the People’s Court has notified of re-arbitration, the party requests to replace the arbitrator;
{C}(4) {C}The arbitrator violates the law, or these Rules or “Arbitrator Rules of the Hangzhou Arbitration Commission”, and is unable to fulfill functions impartially;
{C}(5) {C}The HAC decides that the arbitrator is prevented de jure or de facto from fulfilling functions as an arbitrator.
If the arbitrators shall be replaced pursuant to the above stipulations, the Chairman of the HAC shall decide on the replacement; if the Chairman of the HAC acts as the arbitrator, the HAC shall decide on the replacement collectively.
Article 30 In the event that an arbitrator is unable to fulfill his/her functions due to challenge or other reasons, if the arbitrator to be replaced was nominated by a party, that party shall re-nominate another arbitrator within five (5) days (ten days in case of foreign party concerned) of its receipt of the notice of replacement from the HAC. If the arbitrator is not re-nominated within the time limit, the Chairman of the HAC shall appoint; if the arbitrator to be replaced was appointed by the Chairman, the Chairman shall appoint another arbitrator, and notify the parties of the appointment.
After the nomination or appointment of a new arbitrator, the parties may request that prior arbitral proceedings be all or partly repeated, in which case the Arbitral Tribunal shall determine if such repetition is necessary. The Arbitral Tribunal may also on its own accord decide if prior arbitral proceedings shall be all or partly repeated.
In the event that the arbitrator is replaced and the arbitral proceedings shall be repeated, the duration of arbitration shall be re-calculated from the date of arbitration replacement; in the event that the arbitral proceedings are not repeated, the duration of arbitration shall be calculated from the date of formation of the former arbitral tribunal, by deducting the time in which the arbitrator is replaced.
Chapter V Evidence
Article 31 Each party shall bear the burden of proving the facts on which it relies to support its claim, unless specified by the law otherwise.
The Arbitral Tribunal may, if it considers necessary or on application by the party, collect evidence on its own accord. The evidence collected by the arbitral tribunal shall be delivered to both parties for challenging the authenticity, admissibility and relevance. The parties may challenge the authenticity, admissibility and relevance of the evidence collected by the Arbitral Tribunal.
Where there is no stipulation in the law and it can’t be decided who shall bear the burden of proof according to these Rules, the Arbitral Tribunal may decide who shall bear the burden of proof based on fairness and good faith and by considering the parties’ ability of bearing the burden.
Article 32 The time period for adducing evidence of the party is normally twenty (20) days after the receipt of Notice of Arbitration by the Respondent. If the parties have agreed on the time period for adducing evidence separately, and the Arbitral Tribunal consents, such agreement shall be applied.
If a party bearing the burden of proof fails to produce evidence within the specified time period, the party may apply for an extension before the end of the period and provide the grounds. The Arbitral Tribunal shall decide whether or not to extend the time period.
Article 33 The Arbitral Tribunal shall decide whether or not to accept the evidence submitted after the time period. If the Arbitral Tribunal accepts, it shall give the other party a proper period for examination of evidence.
Article 34 The evidence may exist in below forms:
{C}(1) {C}Documentary evidence;
{C}(2) {C}Physical evidence;
{C}(3) {C}Audio-visual materials
{C}(4) {C}Testimony of witnesses
{C}(5) {C}Statement of the parties
{C}(6) {C}Results of audit, review, assessment, appraisal, inspection etc.
{C}(7) {C}Record of investigation;
{C}(8) {C}Electronic data
Article 35 Each party shall properly categorize and number the evidence it produces, state briefly the source and contents of the evidence and what the evidence is sought to prove, and indicate the date on which the evidence is produced, and submit the copies as per article 20 of these Rules.
If the party produces the documentary evidence, the original evidence shall be produced, and the original physical evidence shall be produced. If a party experiences difficulties in producing original documentary evidence or physical evidence, the party may produce reproduction, photograph, duplicate copy, abridged version of a document or thing.
If the party produces the evidence and documentation in a foreign language, such evidence and documentation should be accompanied by a Chinese translation. With the consent of the arbitral tribunal, a Chinese translation may not be attached. The Arbitral Tribunal shall handle related formality of receipt of the evidence submitted by the party.
Article 36 If the Arbitral Tribunal considers it necessary, after the expiry of the time limit for the submission of the defence and before the hearing, the presiding arbitrator shall decide the evidence exchanging date, summon the parties to exchange their evidence, and jointly draw up a list of the disputed issues and define the scope of the hearing, and the secretary handling the case shall keep record and put in the file.
Article 37 In the event of a hearing, evidence submitted and exchanged between the parties prior to the hearing shall be presented for examination by the parties during the hearing. The evidence supplemented after the hearing, with the consent of both parties, may be examined in writing or in other forms.
Article 38 If a party can prove that the other party possesses evidence that it refuses to disclose without any justifiable reason, and that such evidence would have had an adverse impact on the case of the party possessing the evidence, adverse inferences may be drawn from such refusal to disclose.
Article 39 The authenticity, legality and correlation of the evidence shall be judged by the arbitral tribunal. And the Arbitral Tribunal shall decide whether or not to adopt the evidence.
Article 40 In case of the arbitration case concerned professional problems, if the Arbitral Tribunal considers it necessary to audit, review, assess, appraise or examine, or the party applies for audit, review, assessment, appraisal or examination, and the arbitral tribunal consents, it may notify the parties of jointly appointing to a professional institution from the Panel of Professional Institutions designated by the HAC within the time limit specified by the arbitral tribunal. If the both parties fail to agree upon it, the Arbitral Tribunal shall appoint to a professional institution in accordance with related stipulation by the HAC.
If the parties agree to nominate a professional institution to appraise outside of the Panel of Professional Institutions designated by the HAC, the Arbitral Tribunal shall respect the parties’ will; however, the parties shall provide the supporting documents in writing to the arbitral tribunal.
The Arbitral Tribunal has the power to request the parties, and the parties are also obliged, to deliver or produce to the professional institution any relevant materials, documents, property, or physical objects for appraisal. Where there is any disagreement between the parties and the professional institution on whether the materials, documents, property, or physical objects required by appraisal are relevant to the case, the scope of appraisal, appraisal issues etc., the Arbitral Tribunal shall decide.
The period for appraisal is not included within the time period of case examination stipulated in these Rules.
Article 41 The Arbitral Tribunal shall send the duplicate copy of the audit report, review report, assessment report, appraiser's report and inspection report to the parties, and the parties may submit their written comments on the audit report, review report, assessment report, appraiser's report and inspection report within the time limit.
Article 42 An application for audit, review, assessment, appraisal and inspection by the parties shall be conducted during the time period of producing evidence.
If the party who bears the burden of proof for audit, review, assessment, appraisal and inspection fails to apply for such issues or deposit an advance on costs for audit, review, assessment, appraiser or inspection or refuses to submit the relevant information within the time limit specified by the Arbitral Tribunal without justifiable reasons, and the fact of dispute cannot be verified by the conclusion of audit, review, assessment, appraisal or inspection attributable to this party, this party shall bear the legal consequences on the fact that this party fails to produce evidence.
Article 43 In the course of case examination, if the physical evidence or the scene shall be examined/inspected, the examiner/inspector shall make records on the examination and results, and affix their signatures and take the invitees’ signatures on the records.
Article 44 Based on the request by the parties, with the consent of the arbitral tribunal, or according to the request by the arbitral tribunal, the institution for audit, review, assessment, appraisal, inspection and examination may dispatch personnel to attend the hearing.
With permission of the arbitral tribunal, the parties may question the witnesses, auditors, reviewers, assessors, appraisers, inspectors and examiners during the hearing.
Article 45 If the parties request to audit, review, assess, appraise, inspect or examine again, the Arbitral Tribunal shall decide on the request.
Article 46 The Arbitral Tribunal may consult the experts on the professional problems or issues related to the case, and the opinions of the experts are for reference by the arbitral tribunal.
The Arbitral Tribunal shall sufficiently consider the opinions of the experts. The Arbitral Tribunal shall state the reasons in writing if it does not adopt such opinions.
Article 47 A party may apply for an order for the preservation of evidence after the party deposits an advance on costs for arbitration if the evidence may be destroyed or lost, or may subsequently be inaccessible.
If a party applies for an order for the preservation of evidence, the HAC shall issue a transmitting letter and submit the application to the competent People's Court.
Chapter VI Examination and Arbitral Award
Article 48 The Arbitral Tribunal shall examine a case by way of an oral hearing. For a documents-only case agreed upon by both parties, or the Arbitral Tribunal considers it unnecessary for the oral hearing, with the consent of both parties, the Arbitral Tribunal may examine on the basis of documents only and render the award based on the Request for Arbitration, the Statement of Defence and other materials or information.
The presiding arbitrator shall be responsible for organization of the arbitration procedure. With the consent of the HAC, the presiding arbitrator may independently proceed with part of the arbitration procedure.
Article 49 For cases heard in camera, the parties and their representatives, the arbitrators, the witnesses, the experts consulted by the arbitral tribunal, the appointed appraisers and other relevant persons shall not disclose to any outsider any substantive or procedural matters relating to the case. Where both parties agree upon an open hearing，an open arbitration hearing may be conducted. Arbitrations involving state secrets shall be conducted in private in any event.
Article 50 The arbitration hearing is conducted where the HAC is located. The arbitration hearing may be conducted in other places if both parties apply and the HAC agrees, or the Arbitral Tribunal considers it necessary based on actual situation of the case and with the approval of the HAC.
Article 51 The official language of arbitration to be used in the proceedings shall be Chinese and Chinese character. Where the parties have agreed on the language and writing character of arbitration, with the consent of the HAC, the agreed language and writing character may be applied.
Article 52 The Arbitral Tribunal may, on the application of any party or the Arbitral Tribunal considers it proper, and with the approval of all other parties concerned, order the consolidation of two or more related arbitrations involving a common or related subject matter, but render the award respectively.
The provisions of the preceding paragraph shall not apply if the compositions of the Arbitral Tribunals are different.
Article 53 The date of the arbitration hearing shall be decided by the arbitral tribunal. The Arbitral Tribunal shall notify the parties of the date of the first hearing at least seven (7) days (fifteen days if the foreign, Hongkong, Macao, or Taiwan party is concerned) before the hearing. The date may be brought forward with the agreement of the parties. A party may request a postponement of the date of the first hearing, at least 5 days in written application before the hearing, if there are grounds justifying a postponement. The Arbitral Tribunal shall decide on the request. If the Arbitral Tribunal considers it necessary, the Arbitral Tribunal may decide to postpone the hearing on its own accord.
Notification of the date of any hearing subsequent to the first one or the date of the hearing after postponement is not subject to the above clause requirement.
Article 54 If the Claimant, having been duly notified in writing of the hearing, fails to appear at the hearing without any justifiable reason or withdraws from an ongoing hearing without the permission of the Arbitral Tribunal, the Claimant shall be deemed to have withdrawn its Application for Arbitration. If the Respondent, having been duly notified in writing of the hearing, fails to appear at the hearing without any justifiable reason or withdraws from an ongoing hearing without the permission of the Arbitral Tribunal, the Arbitral Tribunal may proceed with the hearing.
The counterclaim applies the above clause.
Article 55 The parties have a right to debate during the hearing. At the close of the hearing, the presiding arbitrator or the sole arbitrator shall solicit final comments from the parties.
Article 56 The Arbitral Tribunal shall keep minutes of the hearing, except in relation to conciliation proceedings.
The arbitrators, the secretary handling the case, the parties, and other participants in the arbitration shall sign or affix their seals on the minutes. If the parties or other participants in the arbitration refuse to sign or affix their seals, such thing shall be kept records in the minutes.
The parties and other participants in the arbitration shall have a right to request a rectification of omission or any error in the minutes of their testimony, and the Arbitral Tribunal shall decide on the request. The request shall be recorded in the minutes if the Arbitral Tribunal does not allow the rectification.
The HAC may make an audio or video record of the hearing. The minutes of hearing and the audio and video record are for use and reference by the arbitral tribunal. The parties and other participants in the arbitration shall not make an audio or video record of the hearing.
Article 57 The parties may enter into private conciliation after the Application for Arbitration has been submitted. If the parties reach a settlement after submission of the Application for Arbitration, they may request the Arbitral Tribunal to make an award or issue Statement of Conciliation or withdraw the Application for Arbitration in accordance with the settlement agreement.
If the parties have reached the agreement of conciliation, but go back on their word after withdrawing the Application for Arbitration, the party can apply for arbitration again according to the Agreement of Arbitration.
Article 58 The parties can apply for withdrawing the claim or the counterclaim at any stage of the arbitral proceedings after an application for claim or counterclaim. The HAC shall decide on the withdrawal application, make a written decision and serve on both parties before the formation of arbitral tribunal; the Arbitral Tribunal shall decide on the withdrawal application, make a written decision and serve on both parties after the formation of arbitral tribunal.
If the Claimant withdraws all the claims, the Arbitral Tribunal shall not be affected to examine the counterclaim of the respondent and make an award. If the Respondent withdraws all the counterclaims, the Arbitral Tribunal shall not be affected to examine the claim of the claimant and make an award.
The HAC shall, depending on the circumstances of the case, charge a portion or all of the case acceptance fees and the case handling fees paid in advance if the party withdraws the claim or the counterclaim.
Article 59 At any stage of the arbitral proceedings, the Arbitral Tribunal shall urge both parties to solve all or part of dispute through negotiation.
Before the hearing, during the hearing or before making an award, the Arbitral Tribunal may, at the request of both parties or upon obtaining the consent of both parties, conciliate the case in a manner it considers appropriate. The conciliation shall be based on the parties’ will. The written records may not be kept during conciliation.
After reaching an agreement on the conciliation, the both parties may request the Arbitral Tribunal to issue a Statement of Conciliation or make an award in accordance with the agreement of the conciliation. The statement of conciliation shall state the claims and the settlement agreement reached by the parties. It shall be signed by the arbitrator and affixed with the seal of the HAC, and served on both parties, and will be binding once both parties have acknowledged receipt of it unless both parties have agreed upon the effective time.
The agreement of conciliation shall not violate the law and the mandatory provisions of the administrative laws and regulations. And it shall not impair the interests of the country/state, the collective or the third party. If the terms of the agreement of conciliation are out of the scope of the claim, it shall be permitted. If the amount in dispute is increased, the arbitration fee shall be made up.
If the arbitration conciliation is not reached an agreement or the party goes back on his word before acknowledging the receipt of the statement of conciliation, the Arbitral Tribunal shall timely make an award. The Arbitral Tribunal shall not take the opinions of the parties during conciliation as the basis of awarding. Neither party shall invoke any of the statements, opinions, views or proposals expressed by the other party or the arbitrator during the conciliation in the subsequent arbitral proceedings, other judicial proceedings or any other proceedings.
The Arbitral Tribunal shall correct any error in computation, typographical error or similar errors in its effective statement of conciliation. The party may request correction by the Arbitral Tribunal within thirty (30) days after effectiveness of the statement of conciliation. Any rectification or supplementary statement shall be an integral part of the statement of conciliation, and become effective after serving on the parties.
After effectiveness of the statement of conciliation, the parties may apply for arbitration again if the parties reach a new agreement related to the dispute.
Article 60 The award shall be rendered by a majority of the arbitrators. A written dissenting opinion may be kept with the file. If the Arbitral Tribunal can not form a majority opinion, the award shall be rendered as per the presiding arbitrator’s opinion.
Article 61 For the major or difficult cases, the Arbitral Tribunal may propose to the HAC to request the HAC to organize the experts to demonstrate or argue. The Arbitral Tribunal shall state the written reasons if it does not adopt the consultation or demonstration opinions of the experts.
Article 62 The Arbitral Tribunal may make an interim or partial award on the verified fact if the part of the fact is verified. The awarded part will not be repeated in the final award, and the partial award is binding upon both parties from the issuing date.
Article 63 The arbitral proceeding may be suspended upon the joint request of the parties or if special circumstances occur during the proceeding that makes suspension of proceeding necessary.
The arbitral proceedings shall resume as soon as the reason for the suspension disappears.
The suspension or resumption shall be decided by the Arbitral Tribunal, or if the Arbitral Tribunal has not been constituted, by the HAC. The suspension period is not calculated in the time period of case examination specified by these Rules.
Article 64 If the arbitration case is a criminal case, and officially placed on file by the investigation organ, the arbitration proceedings may not be suspended inevitably, and the Arbitral Tribunal may make a decision on the verified fact; the Arbitral Tribunal may expound to the parties and suggest the party to withdraw the claim if it considers unable to make a decision. If the party refuses to withdraw the claim, the Arbitral Tribunal may rebut the claim by the decision letter.
Article 65 In the circumstances set out below, the arbitral proceedings terminate:
(1) The claimant died or terminates, has no successor, or the successor waives the right of arbitration;
(2) The respondent died or terminates, has no heritage or property, or no obliger;
(3) Other circumstances where the arbitration shall be terminated.
If the reason for the arbitration termination appears before the formation of arbitral tribunal, the HAC shall decide on it; if the reason for the arbitration termination appears after the formation of arbitral tribunal, the Arbitral Tribunal shall decide on it. The decision on arbitration termination shall be issued in a decision letter, and the decision letter shall be served on the parties.
Article 66 The Arbitral Tribunal shall render its award within three (3) months (six months if the foreign, Hongkong, Macao or Taiwan party is concerned) after its constitution. If there are special circumstances justifying an extension, the Secretary-General may, at the request of the presiding arbitrator or the sole arbitrator, approve a suitable extension of the time limit.
The three months or the six months referred to in the preceding paragraph excludes the notice period, the period of deciding the validity of the arbitration agreement and objections of jurisdiction, and the period of audit, review, assessment, appraisal, inspection and examination of the professional problems or issues.
Article 67 The Arbitral Tribunal shall state in the award the claims, the verified facts, the applicable law, the reasons on which the award is based, the result of the award, the allocation of the arbitration costs, and the date on which the award is made.
The facts of the dispute and the reasons on which the award is based may not be stated in the award if the parties have so agreed.
Article 68 The signature of the arbitrators and the seal of the HAC shall be affixed to the arbitral award and the statement of conciliation.
An arbitrator who has a dissenting opinion may or may not sign his/her name on the award. No signature of the arbitrator, who has a dissenting opinion, in the award will not affect the validity of the arbitral award.
Article 69 The date on which the award is made shall be the date on which the award comes into legal effect.
Article 70 The Arbitral Tribunal shall correct in its award any error in computation, any clerical or typographical error, and supplement any omission from its decision of claims on which it has made a judgment in its reasoning. Any party may request in writing within 30 days from the date of its receipt of the award that the Arbitral Tribunal rectify the award or make a supplementary award. Any rectification by or supplementary award of the Arbitral Tribunal shall be an integral part of the original arbitral award.
Article 71 The parties shall perform the arbitral award or the effective statement of conciliation.
Where one party fails to perform the award or the effective statement of conciliation, the other party may apply to a competent People’s Court for enforcement of the award in accordance with the law.
The period of applied enforcement is two years. The period is calculated from the last date of the performance period specified by the award or the statement of conciliation; in case of specified installment, it is calculated from the last date of specified each performance period; in case of the performance period not specified, it is calculated from the effective date of the award or the statement of conciliation.
Article 72 If the party produces the evidence which proves one of the circumstances setting out below related to the award, the party may apply for withdrawing the award to Hangzhou Intermediate People's Court within six months from the date of its receipt of the arbitral award.
{C}(1) {C}Without the arbitration agreement;
{C}(2) {C}The awarded matters are out of the scope of the arbitration agreement or the HAC has no right to arbitrate;
{C}(3) {C}The constitution of the Arbitral Tribunal or the arbitral proceedings violate the legal procedure;
{C}(4) {C}The evidence on which the award is based is forged;
{C}(5) {C}The other party wihholds the evidence which fully affects the impartial award;
{C}(6) {C}The arbitrator solicits bribes, malpractices for personal gain or misuses of law in adjudication during the case arbitration.
If the arbitral award is withdrawn after arbitration by the People’s Court, both parties may apply for arbitration again in accordance with the written arbitration agreement by both parties or bring a lawsuit before the People’s Court.
Article 73 The Arbitral Tribunal may re-arbitrate after the receipt of the notice of re-arbitration by the People’s Court if the Arbitral Tribunal considers it necessary. The Arbitral Tribunal shall submit its written opinion to the HAC if the Arbitral Tribunal considers it unnecessary, and the HAC shall write to inform the People’s Court. In case of clause 3 or clause 6 in the article 72, a new Arbitral Tribunal shall be formed for re-arbitration.
If the Arbitral Tribunal agrees to re-arbitrate, the arbitration costs shall not be charged again.
Arbitral 74 The costs of the arbitration shall in principle be borne by the losing party. If the parties are only partially successful in their respective cases, the Arbitral Tribunal shall decide on the proportion of each party's share of the costs based on each party's responsibilities. If the parties reach a settlement, whether or not as a result of the Arbitral Tribunal's conciliation, they may determine the proportion of their respective share of the costs through consultation. In case of no agreement or failing to reach agreement on the proportion of the share of the costs, the Arbitral Tribunal shall decide.
If the arbitration costs increase due to the delay of the arbitral proceedings resulting from the party failing to behave in good faith or other reasons of the party, the increased costs concerned shall be borne by the fault party.
Article 75 Where the parties have agreed to nominate the arbitrators whose domicile is not in Hangzhou, for the related subsequent costs like travel and accommodation incurred thereby for handling the case as well as the related arbitration costs by entrusting audit, review, assessment, appraisal, inspection, examination and employing experts and interpreters or translators, the HAC may appoint to a party to deposit an advance on such costs within specified time limit, and the Arbitral Tribunal shall decide on which party shall finally bear the above advance deposit by the party.
The Arbitral Tribunal may decide on which party shall bear related costs specified in the preceding two articles without limitation by the request scope of the party.
Chapter VII Summary Procedure
Article 76 Unless otherwise agreed by the parties, the summary procedure shall apply if the amount in dispute does not exceed RMB ￥600,000.
For the case which the summary procedure applies, the HAC shall immediately send the notice of acceptance and the notice of defence to both parties.
The parties shall jointly nominate or jointly authorize the Chairman of the HAC to designate a sole arbitrator to form the Arbitral Tribunal to examine the case within ten (10) days after the date of the receipt of the notices.
For a case in which the amount in dispute does not exceed RMB ￥600,000, if one party requests to apply the general procedure, this party shall bear the increased arbitration costs thereby.
Article 77 Where the amount in dispute exceeds RMB 600,000, and both parties have agreed to apply the summary procedure, the summary procedure may apply.
Article 78 The Respondent shall submit its Statement of Defence, evidence and other supporting documents, the Statement of Counterclaim and related evidence to the HAC within ten (10) days after the receipt of the duplicate copy of the Request for Arbitration. If the Respondent submits the above after the time limit, the Arbitral Tribunal shall decide on whether to accept or not.
Article 79 If the Claimant or the Respondent amends the claim and the counterclaim, they may submit the written application to the Arbitral Tribunal. The Arbitral Tribunal shall decide on whether to accept or not. If the Arbitral Tribunal decides to accept, the other party shall submit the Statement of Defence in writing within ten (10) days after the receipt of the application of amendment of claim or counterclaim.
Article 80 Where a case is to be examined by way of an oral hearing, the parties shall be notified of the date of the first oral hearing three (3) days in advance of the oral hearing after the Arbitral Tribunal determines the date of the hearing.
Where a case applies the summary procedure, generally only one hearing is conducted. If necessary indeed, the Arbitral Tribunal may decide subsequent hearing. The notice of the date of a subsequent hearing shall not be subject to the three days.
Article 81 Where the amount in dispute exceeds RMB 600,000 due to the amendment of claim or the application of the counterclaim, the summary procedure shall continue to apply. But if the Arbitral Tribunal decides that a change to the general procedure is necessary, the Secretary-General of the HAC shall decide.
In case the summary procedure is changed to the general procedure, the constitution of the Arbitral Tribunal and the time limit of arbitrator appointment shall apply the general procedure.
The Arbitral Tribunal shall decide on whether the prior arbitral proceedings are repeated before the formation of a new arbitral tribunal.
Article 82 The foreign arbitration cases do not apply the summary procedure.
Chapter VIII Prescription, Periods of Time and Service
Article 83 The arbitration shall apply the prescription specified in the law. Where there is no prescription in the law, the Provisions of prescribed period for litigation shall apply. The arbitration prescription is generally two years from the day the parties have known or shall know that their rights have been infringed.
The arbitration shall apply the special prescription for arbitration specified in the law.
Article 84 Where the periods of time are counted as date, month and year, the starting time and the starting date shall not be counted in the periods of time.
Where the last day of periods of time is holiday, the first day after the holiday shall be deemed as the last day of the periods of time.
Time for delivery shall not be included in the period of time. Any arbitral document, notice or material that has been mailed or dispatched prior to expiry of the period of time shall not be regarded as overdue.
Article 85 If a party breaches a time limit because of force majeure events or other justifiable reasons, it may apply for an extension of time within 10 days of the removal of the obstacle. The HAC or the Arbitral Tribunal shall decide on the request.
Article 86 Service shall comply with the following regulations:
(1) When the party claims or defenses, it shall provide or confirm the accurate service address to the HAC or the Arbitral Tribunal and fill in the confirmation order of service address, and it shall bear the legal consequence of failure to service.
Where the party changes the service address before the arbitral award is sent, it shall inform the HAC in written form in time.
If the party refuses to provide the service address after the HAC or the Arbitral Tribunal informs it to provide the service address, the natural person’s registered permanent residence address, habitual residence address and the address in the contract shall be deemed as the correspondence address; the legal person’s or other organization’s registered business address, habitual address on the record or in the file or address in the contract shall be deemed as the correspondence address.
(2) All relevant arbitral documents, notices and other materials may be served on the parties or their authorized representatives in person or by registered mail, courier, fax, telex, telegram or any other means that the HAC or the Arbitral Tribunal considers appropriate. Unless agreed otherwise by the parties, with the consent of the HAC, the agreement of the parties shall be followed.
(3) An arbitral document, notice and material shall be deemed to have been served on the parties or their authorized representatives if it has been delivered to the addressee in person or by mail to the addressee's place of business, place of habitual residence or other mailing address provided by the addressee or the counterparty.
If the arbitral documents are delivered to the parties or their authorized representatives, and the parties or their authorized representatives refuse to sign on the arbitral documents, it may be served by retention.
{C}(4) {C}If despite reasonable inquiries, the addressee's place of business, place of habitual residence or other mailing address cannot be found, service shall be deemed to have been effected if the document, notice or material is delivered to the addressee's last known place of business, place of habitual residence or other mailing address by mail, courier or by any other means of delivery with proof of attempt to deliver by the HAC.
{C}(5) {C}If party's present whereabouts is unknown or the service can not be achieved by the service way specified in these Rules, upon the request by the other party, and the Chairman of the HAC considers it necessary, the relevant arbitration documents, notices and materials may be served by announcement, but the announcement shall not state the dispute content of both parties and the arbitral proceedings.
In case of service by announcement, the other party shall deposit an advance on costs for the announcement. It shall be deemed to have been served at the expiry of the period of announcement.
The service by announcement is not applicable to the international commercial arbitration cases and the cases where the addressee is the legal person. If the arbitration documents are effectively served on the addressee at the first time, but the subsequent mails at the same mailing address are not signed or refused to sign, the service by announcement does not apply;
(6) If the HAC fails to serve by a normal way, and the party refuses to apply for service by announcement or deposit costs for the announcement, it is deemed to withdraw the Request for Arbitration.
Chapter IX Supplementary Provisions
Article 87 The power to interpret these Rules is vested in the HAC.
Article 88 These Rules are effective as of January 1, 2016. For cases accepted by the HAC before these Rules came into effect, the Arbitration Rules effective at the time of such acceptance shall apply. In such a case, these Rules may apply if the parties so agree.
Add: 3F, 6F, 7F and 8F, Jinxiu Mansion, 356 Hushu South Road, Gongshu District, Hangzhou 310005, P.R.China