Financial Arbitration Rules of Hangzhou Arbitration Commission-Hangzhou International Arbitration Court

Financial Arbitration Rules of Hangzhou Arbitration Commission

Release：2019-06-26 Source： Click：629

Financial Arbitration Rules of Hangzhou Arbitration Commission

(Revised on December 16, 2011)

(Adopted by the First Hangzhou Arbitration Commission on August 26, 1996, revised by the Third Hangzhou Arbitration Commission on July 5, 2003, revised by the Fourth Hangzhou Arbitration Commission on July 26, 2011 for the second time, revised by the Fifth Hangzhou Arbitration Commission on June 3, 2013 for the third time, and coming into effect as of September 1, 2013)

Chapter 1 General Provisions

Article 1 The Rules are formulated in accordance with the Arbitration Law of the People's Republic of China (hereinafter referred to as the "Arbitration Law") and the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Civil Procedure Law") to ensure that economic disputes shall be impartially and promptly arbitrated, to protect the legitimate rights and interests of the relevant parties and to promote the sound development of the society and economy.

Article 2 The Arbitration Commission shall independently and impartially solve the disputes over contracts (including disputes over foreign-related contracts) and disputes over property rights and interests between natural persons, legal persons and other organizations as equal subjects of law (hereinafter referred to as the "parties").

The Arbitration Commission shall not accept the following disputes:

(I) Disputes over marriage, adoption, custody, child support and inheritance;

(II) Administrative disputes falling within the jurisdiction of the relevant administrative organs according to law; and

(III) Labor disputes and disputes over contracts for undertaking agricultural projects within agricultural collective economic organizations.

Article 3 The Arbitration Commission shall be consisted of a chairman, two to four vice-chairmen and seven to eleven members. The chairman shall perform the duties conferred by the Arbitration Law and as provided for in the Rules.

The Arbitration Commission shall have a secretariat responsible for the routine affairs of the Arbitration Commission under the leadership of the Secretary-General of the Arbitration Commission.

Article 4 The Arbitration Commission shall establish a register of arbitrators (including foreign-related arbitrators).

The arbitrators shall be appointed by the Arbitration Commission from the fair and decent personnel with expertise and practical experience in such fields as law, economy, trade and science and technology.

Chapter 2 Arbitration

Article 5 If the parties agree to apply to the Arbitration Commission for arbitration, such parties shall be deemed to agree with the arbitration handling in accordance with the Rules. However, if the parties have otherwise agreed on the arbitration procedure and have obtained the consent of the Arbitration Commission, such agreement shall prevail.

Article 6 If the parties choose to settle a dispute through arbitration, both parties shall voluntarily reach an arbitration agreement.

Article 7 The arbitration agreement shall include the arbitration terms reached by the parties at the time of conclusion of a contract, or a written agreement reached by other means before or after the occurrence of the dispute.

The following contents shall be included in an arbitration agreement:

(I) The expression of the parties' wish to submit to arbitration;

(II) The matters to be arbitrated; and

(III) The expression of the parties' wish to appoint the Arbitration Commission.

Article 8 An arbitration agreement shall exist independently. Any changes to, rescission, termination, invalidity or cancellation of the contract shall not affect the validity of the arbitration agreement. The arbitration tribunal has the right to rule on the validity of an arbitration agreement.

Article 9 If the parties object to the validity of the arbitration agreement, the objection shall be put forward in writing at the latest one day prior to the first hearing of the arbitration tribunal. If any objection is put forward at the first hearing, it shall not affect the hearing of the arbitration tribunal in accordance with the arbitration procedure. For any case not subject to court hearing, any objection shall be put forward in writing during the defense period.

If the parties do not object to the validity of the arbitration agreement in accordance with the foregoing provisions, the parties shall be deemed to recognize the validity of the arbitration agreement.

Article 10 If the parties object to the validity of the arbitration agreement, the Arbitration Commission shall promptly make a written decision and notify the parties. If the objection is tenable, the case shall be cancelled. If the objection is untenable, the arbitration procedure shall continue.

If the parties put forward objections to specific matters of an arbitration case, the arbitration tribunal shall hear such objections and made decisions.

Article 11 If the parties object to the validity of the arbitration agreement, they may apply to the Arbitration Commission for a decision or to a people's court for a ruling. If one of the parties submits to the Arbitration Commission for a decision, but the other party applies to a people's court for a ruling, the people's court shall give the ruling.

If one party requests both the Arbitration Commission for a decision and a people's court for a ruling, and if the Arbitration Commission accepts the objection request before the people's court and has made a decision, the decision shall be valid;

If the Arbitration Commission has not made a decision after accepting the objection request, the people's court has accepted the objection request, and the Arbitration Commission will no longer make a decision.

Chapter 3 Application and Acceptance

Article 12 The parties applying for arbitration shall fulfill the following conditions:

(I) They must have a written expression of an arbitration agreement or other consent to submit the dispute to arbitration;

(II) They must have a specific arbitration claim with facts and causes on which the claim is based; and

(III) The arbitration must be within the jurisdiction of the Arbitration Commission.

Article 13 According to the arbitration agreement or arbitration terms, the Arbitration Commission shall accept the application applied by either party if:

(I) It is agreed in the arbitration agreement or arbitration terms concluded by the parties that the cases shall be accepted by the original arbitration bodies within the jurisdiction of Hangzhou before the implementation of the Arbitration Law; or

(II) The expression of the name of the arbitration body in the arbitration agreement or arbitration terms is not standard, but it can only be presumed as Hangzhou Arbitration Commission in word and logic.

Article 14 The party applying for arbitration shall submit to the Arbitration Commission the arbitration agreement, an arbitration petition and copies thereof, identity certificate of the party and relevant evidence.

The arbitration petition shall state clearly the following:

(I) The name, gender, age, occupation, employer, address and contact information of the party, the name, address and legal representative of the legal person or other organization and the name, position and contact information of its person-in charge;

(II) Arbitration claim with facts and causes on which the claim is based; and

(III) Evidence and the source of evidence, the name and address of the witness.

Article 15 Within three days from the date of receiving the arbitration petition, the Arbitration Commission shall accept the application if it considers the conditions for acceptance have been fulfilled, and notify the claimant to pay the arbitration fees in advance according to the charging standards stipulated in the Arbitration Fee Collection Measures of Arbitration Commissions. The arbitration fees shall include the case acceptance fee and the case handling fee. If the Arbitration Commission considers that the conditions have not been fulfilled, it shall notify the parties in writing of its rejection, stating its causes.

If the claimant does not pay the arbitration fees in advance within the prescribed time limit and does not submit the application for delay of payment, the arbitration petition shall be deemed to be withdrawn.

If, upon receipt of the arbitration petition, the Arbitration Commission considers that the arbitration petition does not comply with Article 14 of the Rules, it may require the parties to make corrections within a specified time limit. If no correction is made within the time limit, the application shall be deemed to be waived. The completion date of correction shall be regarded as the filing date.

Article 16 After accepting the arbitration petition, the Arbitration Commission shall deliver the Notice of Arbitration together with a copy of the Application for Arbitration to the respondent within five days, and deliver the Rules and the List of Arbitrators of the Arbitration Commission to both parties.

Article 17 The respondent shall submit a defense to the Arbitration Commission within fifteen days from the date of receipt of the Notice of Arbitration (thirty days for any party involved in a foreign-related, Hong Kong-related, Macao-related or Taiwan-related case). After receiving the defense, the Arbitration Commission shall deliver a copy of the defense to the claimant within five days. If the respondent fails to submit the defense, the arbitration procedure shall not be affected.

Article 18 The claimant may abandon or alter his/her arbitration claim. The respondent may accept the arbitration claim or object to it. The respondent has a right to make a counterclaim and waive or change the counterclaim.

If the respondent makes a counterclaim, it shall submit it in writing within the defense period stipulated in the Rules, stating the facts and causes on which the claim is based, and attaching relevant evidence. The arbitration tribunal shall decide whether to accept the overdue counterclaim.

After making a counterclaim, the party shall pay the arbitration fees in advance within three days, otherwise the party shall be deemed to waive the counterclaim.

The Arbitration Commission shall, within five days from the date of receipt of the respondent's application for counterclaim, deliver a copy of the application for counterclaim to the claimant.

The claimant shall, within fifteen days from the date of receipt of a copy of the application for counterclaim (thirty days for any party involved in a foreign-related, Hong Kong-related, Macao-related or Taiwan-related case), submit a written reply to the Arbitration Commission, and the failure to submit a written reply shall not affect the proceeding of the arbitration procedure.

Article 19 If a party changes the arbitration claim or counterclaim, the party may submit it before the debate of first arbitration hearing, and the arbitration tribunal shall decide whether to agree or not. After the first hearing, no parties shall put forward an arbitration claim or a counterclaim.

Article 20 If the claimant changes the arbitration claim or the respondent changes the counterclaim, a written application shall be submitted, and the arbitration tribunal shall give the other party a 15-day defense period. If one party puts forward a change in court, and the other party expresses its willingness to reply in court, the arbitration procedure shall continue.

Article 21 Either party may apply for property preservation if, as the result of an act of the other party or for some other reasons, it appears that an award may be impossible or difficult to enforce.

If a party applies for property preservation, the Arbitration Commission shall issue a transfer letter and submit to a people's court of the place where the property is located the application of the party in accordance with the Civil Procedure Law.

Article 22 Either party may entrust an arbitration agent to conduct arbitration activities and handle relevant arbitration matters. The arbitration agent shall submit the power of attorney approved by the principal to the Arbitration Commission.

The power of attorney shall specify the matters entrusted and the authority. The arbitration agent must be specially authorized by the principal to propose, recognize, waive, or change an arbitration claim or a counterclaim, appoint an arbitrator, settle via reconciliation or request for mediation on behalf of the principal.

If the authority to the arbitration agent is changed or cancelled, the principal shall notify the Arbitration Commission in writing.

When a party submits an arbitration petition, a defense, a counterclaim and other relevant materials in accordance with the Rules, it shall submit copies of the corresponding numbers in accordance with the number of arbitrators and the other party.

Chapter 4 Formation of Arbitration Tribunal

Article 23 The arbitration tribunal may be formed by three arbitrators or one arbitrator. A presiding arbitrator shall be appointed if the arbitration tribunal is formed by three arbitrators.

Article 24 The parties shall, within ten days from the date of receipt of the notice of acceptance or the notice of respondence to arbitration (twenty days for any party involved in a foreign-related, Hong Kong-related, Macao-related or Taiwan-related case), agree on the formation of the arbitration tribunal and appoint the arbitrators.

Article 25 If the parties agree to form an arbitration tribunal comprising three arbitrators, each party shall select or authorize the chairmen of the arbitration commission to appoint one arbitrator. The third arbitrator selected jointly by the parties or nominated by the chairman of the Arbitration Commission in accordance with a joint mandate given by the parties shall be the presiding arbitrator.

If the parties agree to have one arbitrator to form an arbitration tribunal, the arbitrator shall be appointed jointly by the parties or be nominated by the chairman of the arbitration commission in accordance with a joint mandate given by the parties.

If the parties fail to agree on the formation of the arbitration tribunal and the selection of the arbitrators within the time limit specified in Article 24 hereof, the chairman of the Arbitration Commission shall decide the formation of the arbitration tribunal and appoint the arbitrators on behalf the parties.

Article 26 Where one party is composed of two or more parties, the selection or appointment of arbitrators shall be conducted by consensus upon consultation and jointly by these parties internally. If no arbitrators are jointly selected within the prescribed period, the chairman of the Arbitration Commission shall decide the formation of the arbitration tribunal and appoint arbitrators on behalf of these parties.

Article 27 After the arbitration tribunal is formed, the Arbitration Commission shall notify the parties in writing of the formation of the arbitration tribunal within three days after the formation of the arbitration tribunal.

Article 28 The case handling secretary of the arbitration tribunal shall, within ten days from the date of formation of the arbitration tribunal, send the relevant materials submitted by the parties to the arbitrators of the arbitration tribunal.

Article 29 Under any of the following circumstances, an arbitrator must withdraw from the arbitration, and the parties shall have the right to apply for his/her withdrawal if:

(I) The arbitrator is a party involved in the case or a close relative of a party or of a party's representative;

(II) The arbitrator has vital personal interests in the case;

(III) The arbitrator has some other relationship with a party involved in the case or with a party's agent which could possibly affect the impartiality of the arbitration; or

(IV) The arbitrator meets a party or his/her agent in private, accepts an invitation for dinner by a party or his/her representative or accepts gifts presented by any of them.

In preceding Paragraph (3), "other relations" means:

1 The arbitrator has provided prior advice on the case to be undertaken;

2 The arbitrator is current party's legal adviser or agent, or has served as the legal adviser of the party and left office for less than two years;

3 The arbitrator works in the same organization as a party or its agent, or has worked in the same organization and left for less than two years;

4 The arbitrator recommends or introduces an agent to a party of the case;

5 The arbitrator has served as a witness, an appraiser, inquest personnel, a defender, and an agent in litigation in this case or in a case related to this case.

Article 30 If the arbitrator is required to withdraw, the application shall be submitted in writing before the first hearing of the case, stating the facts and causes, and providing evidence. If the cause of withdrawal occurs and is known to be after the first hearing, the application for withdrawal shall be submitted at the latest before the next hearing. If both parties agree that the case will not to be heard, the application for withdrawal shall be submitted within ten days from the date of receipt of the notice for establishment of arbitration tribunal at the latest, unless the parties are informed of the cause for withdrawal after the time limit.

Whether an arbitrator is withdrawn or not shall be determined by the chairman of the Arbitration Commission. If the chairman is serving as an arbitrator, the withdrawal or not shall be determined collectively by the Arbitration Commission.

The arbitrator shall continue to perform his/her duties before the Arbitration Commission makes a decision on whether or not to withdraw the arbitrator.

Article 31 After an arbitration tribunal is formed and before the award is made, the arbitrator shall be replaced in case of any of the following circumstances:

(I) The arbitrator is unable to perform his/her duties due to health, removal, dismissal or other reasons;

(II) The arbitrator's delay in performing his/her duties has caused serious delay in the arbitration procedure and fails to close the case within the time limit after the Arbitration Commission issues the Notice of Case Urgency;

(III) The people's court notifies the Arbitration Commission to re-arbitrate the case and a party requests to replace the arbitrator;

(IV) The arbitrator violates the law, the Rules and the Rules for Arbitrators of Hangzhou Arbitration Commission and fails to perform his/her duties justly; and

(V) The Arbitration Commission considers that the arbitrator is unable to perform his/her duties legally or in fact.

If it requires replacing the arbitrator in accordance with the preceding paragraph, whether the arbitrator is replaced or not shall be determined by the chairman of the Arbitration Commission. If the chairman is serving as the arbitrator, the replacement or not shall be determined collectively by the Arbitration Commission.

Article 32 If the arbitrator is unable to perform his/her duties due to withdrawal or other reasons and the arbitrator is selected by the parties, the parties shall re-select an arbitrator within five days (ten days for overseas parties) from the date of receipt of the notice from the Arbitration Commission. If the parties fail to select an arbitrator within the time limit, the chairman of the Arbitration Commission shall appoint an arbitrator. If the arbitrator is appointed by the chairman of the Arbitration Commission on behalf of the parties, the chairman of the Arbitration Commission shall appoint another arbitrator, and notify the parties of the re-appointment of the arbitrator in a timely manner.

After a replaced arbitrator has been selected or appointed, the parties may apply to resume all or part of the arbitration procedure. The arbitration tribunal shall determine whether the resumption of the procedure may be allowed. The arbitration tribunal may determine on its own whether the arbitration procedure shall be resumed completely or partially.

If the arbitration procedure is re-conducted after the replacement of the arbitrator, the arbitration period shall be re-calculated from the date of the replacement of the arbitrator. If arbitration procedure is not resumed, the arbitration period shall be calculated from the date of the formation of the original arbitration tribunal, but the time delayed by the replacement of the arbitrator shall be deducted.

Chapter 5 Evidence

Article 33 The parties shall bear the burden of proof for their claims, unless otherwise provided by law.

The arbitration tribunal may, if it deems it necessary or on the application of the parties concerned, collect evidence on its own. The evidence collected by the arbitration tribunal shall be submitted to both parties for cross-examination. The parties may submit cross-examination opinions on the evidence collected by the arbitration tribunal on its own.

When there is no specific provision in the law and the burden of proof cannot be determined in accordance with the Rules, the arbitration tribunal may determine the burden of proof based on the principle of fairness and the principle of good faith, taking into account the parties' abilities to provide evidence and other factors.

Article 34 Under normal circumstances, the term of adducing evidence of the parties shall be within twenty days from the date when the Respondent receives the notice of respondence to arbitration. However, if the parties have otherwise agreed on the term of adducing evidence and have obtained the consent of the arbitration tribunal, such agreement shall prevail.

If a party fails to submit evidence materials within the term of adducing evidence, it may apply for extension and explain the reasons before the expiration of the term. The arbitration tribunal shall make a decision on approval or disapproval.

Article 35 The arbitration tribunal shall decide whether to accept the overdue evidence. If the arbitration tribunal decides to accept the overdue evidence, it shall give the other party a reasonable period of cross-examination.

Article 36 The types of evidence are as follows:

(I) Documentary evidence;

(II) Physical evidence;

(III) Audio-visual materials;

(IV) Testimonies of witnesses;

(V) Statements of the parties;

(VI) Conclusions of audit, review, evaluation, appraisal and inspection; and

(VII) Records of inquest.

Article 37 The parties shall classify and number the evidence submitted by them, briefly explain the source, object and content of the evidence, indicate the date of submission, and submit a copy in accordance with Article 22 of the Rules.

The parties shall submit the originals in case of documentary evidence and original materials in case of physical evidence. If it is really difficult to submit the originals or original materials, a duplicate, photograph, copy or excerpt may be submitted.

If a party submits evidence materials in a foreign language, a Chinese version shall be attached, but a Chinese version may not be attached with the consent of the arbitration tribunal. The arbitration tribunal shall issue receipts for evidence and materials submitted by the parties.

Article 38 If the arbitration tribunal considers it necessary, the presiding arbitrator may determine the date of exchange of evidence and convene both parties to exchange evidence after the expiration of the defense period and before the court hearing. The points of dispute and the scope of hearing shall be jointly determined and recorded by the case secretary.

Article 39 In case of court hearing, the evidence submitted and exchanged before the hearing shall be presented at the start of the hearing, and the parties may cross-examine the evidence. As agreed by both parties, the evidence supplemented after the hearing may be cross-examined in writing or by other means.

Article 40 If there is evidence to prove that one party holds evidence and refuses to provide it without justifiable reasons, and the other party claims that the content of the evidence is unfavorable to the holder of the evidence, the claim may be presumed to be established.

Article 41 The authenticity, legality and relevance of the evidence shall be judged by the arbitration tribunal. The arbitration tribunal shall decide whether or not to adopt the evidence.

Article 42 Upon the application of the parties and the consent of the arbitration tribunal, the arbitration tribunal may submit the specialized issues involved in the case to the specialized agencies agreed upon by the parties or determined through consultation for audit, review, evaluation, appraisal and inspection. Such specialized agencies shall be appointed by the arbitration tribunal if the parties fail in consultation or fail to consulate. The arbitration tribunal shall also have the right, at its sole discretion, to submit the specialized issues involved in the case to the specialized agencies for audit, review, evaluation, appraisal and inspection.

Article 43 The arbitration tribunal shall send the copies of audit, review, evaluation, appraisal and inspection reports to the parties. The parties may submit written cross-examination opinions on the audit, review, evaluation, appraisal and inspection reports within the prescribed time limit.

Article 44 When applying for audit, review, evaluation, appraisal and inspection, a party shall submit the application within the term of adducing evidence.

If a party that bears the burden of proof for matters requiring audit, review, evaluation, appraisal and inspection does not propose an application for audit, review, evaluation, appraisal and inspection, or pay the expenses for audit, review, evaluation, appraisal and inspection in advance, or refuse to provide relevant materials within the time limit designated by the arbitration tribunal without justifiable reasons, which results that the facts of the case cannot be confirmed through audit, review, evaluation, appraisal and inspection, the party shall bear the legal consequences of failure on burden of proof for such facts.

Article 45 In the process of hearing a case, if it is necessary to conduct an inquest on the physical evidence and the site, the inquest personnel shall make a record of the inquest and the results, which shall be signed by the inquest personnel and the personnel invited.

Article 46 At the request of a party and with the consent of the arbitration tribunal, or at the request of the arbitration tribunal, the audit, review, evaluation, appraisal, inspection and inquest agencies shall send persons to attend the hearing.

With the permission of the arbitration tribunal, the parties may ask questions to the witnesses, auditors, reviewers, values, appraisers, inspectors and inquest personnel at the hearing.

Article 47 Where a parties requests re-conducting audit, review, evaluation, appraisal, inspection and inquest, the arbitration tribunal shall make a decision on approval or disapproval.

Article 48 The arbitration tribunal may consult with the experts on the special issues involved in the case, and the expert opinions may be referred by the arbitration tribunal.

The arbitration tribunal shall give full consideration to the expert opinions, and if it does not adopt them, it shall state the reasons in writing to the Arbitration Commission.

Article 49 Where evidence may be lost or difficult to obtain later, a party may apply for evidence preservation. If a party applies for evidence preservation, the Arbitration Commission shall issue a transfer letter and submit to a people's court the application of the party in accordance with the Civil Procedure Law.

Chapter 6 Hearing and Award

Article 50 The arbitration tribunal shall carry out court hearing. If the parties agree not to hold a hearing, or if the arbitration tribunal deems it unnecessary to hold a hearing and obtains the consent of both parties, the arbitration tribunal may conduct a written hearing and make an award according to the arbitration petition, the defense and other materials submitted by the parties.

Article 51 The court hearing of arbitration shall not be conducted in public. Both parties and their agents, witnesses, arbitrators, appraisers consulted by the arbitration tribunal and appointed appraisers and other relevant personnel shall not disclose to the outside the information of the entities and procedure of the case. If the parties agree to a public hearing, the arbitration may be conducted in public, except those concerning state secrets.

Article 52 The court hearing shall be conducted at the seat of the Arbitration Commission. The court hearing may be conducted in other places at the request of both parties and with the consent of the Arbitration Commission, or after considering the actual situation of the case by the arbitration tribunal and with the approval of the Arbitration Commission.

Article 53 Chinese is the official language and text for arbitration cases. However, unless otherwise agreed by the parties and consented by the Arbitration Commission, the official language and text agreed by the parties shall be applicable.

Article 54 If two or more arbitration cases involve common or related facts, at the request of a party, or if the arbitration tribunal deems it appropriate, the arbitration tribunal may jointly hear the cases after obtaining the consent of all the parties. However, the awards shall be made separately. If the formation of the arbitration tribunal is different, the preceding paragraph shall not apply.

Article 55 The date of hearing of the arbitration case shall be decided by the arbitration tribunal. The arbitration tribunal shall notify the parties of the date of the hearing seven days before the hearing (fifteen days for any party involved in a foreign-related, Hong Kong-related, Macao-related or Taiwan-related case). With the consent of both parties, the arbitration tribunal may decide to hold the hearing in advance. Either party may request to postpone the hearing if there is a genuine reason. However, the request must be presented in writing to the arbitration tribunal five days prior to the hearing. The arbitration tribunal shall decide whether to postpone the hearing. The arbitration tribunal may, at its sole discretion, postpone the hearing if necessary. The notice on the date of re-hearing or deciding to postpone the hearing after the first hearing shall not be restricted by the preceding paragraph.

Article 56 If the claimant was served with a notice in writing but does not appear in the tribunal without due reasons, or leaves the tribunal during a hearing without the permission of the arbitration tribunal, such claimant is deemed as having withdrawn its arbitration petition. If the respondent was served with a notice in writing but does not appear in the tribunal without due reasons or leaves the tribunal during a hearing without the permission of the arbitration tribunal, the arbitration tribunal may make a default award. The preceding paragraph shall apply to counterclaims.

Article 57 The parties may debate during an arbitration hearing. At the end of the debate, the presiding arbitrator or the sole arbitrator shall ask for the final opinion of the parties.

Article 58 The arbitration tribunal shall record the hearing in the written record. If the parties or relevant participants to the arbitration consider that the record has omitted a part of their statements or is incorrect in some other respect, they shall have the right to request correction thereof. If no correction is made by the arbitration tribunal, the request for correction shall be recorded in the written record of hearing. The arbitrators, parties and relevant participants to the arbitration shall sign or affix their seals to the written record of hearing. If the parties and relevant participants to the arbitration refuse to sign or affix their seals, this case shall be recorded in the written record of hearing.

Article 59 After applying for arbitration, the parties may settle the dispute among themselves through reconciliation. If a reconciliation agreement has been reached by the parties, the parties may apply to the arbitration tribunal for an award or a reconciliation statement based on the reconciliation agreement, and may also withdraw the arbitration petition. If the parties fall back on their words after the conclusion of a reconciliation agreement and the withdrawal of the arbitration petition, an application may be made for re-arbitration in accordance with the arbitration agreement.

Article 60 If a party applies to withdraw the arbitration petition or application for counterclaim before or after the formation of the arbitration tribunal, the Arbitration Commission shall make a decision on approval or disapproval. If a party applies to withdraw the arbitration petition or the application for counterclaim before the formation of the arbitration tribunal, the case acceptance fee collected by the arbitration tribunal in advance will be refunded in full to the parties and the case handling fee will not be refunded. If the arbitration tribunal is formed but no hearing is made and a party applies to withdraw the arbitration petition or the application for counterclaim, only half of the case acceptance fee collected by the arbitration tribunal in advance will be refunded to the parties and the case handling fee will not be refunded. If a party applies to withdraw the arbitration petition or the application for counterclaim after hearing, the arbitration fees paid in advance will not be refunded.

Article 61 Before making an award, the arbitration tribunal may, with the consent of the parties, conciliate the parties over the dispute. When a settlement agreement is reached by mediation, the arbitration tribunal shall prepare the mediation statement or the award on the basis of the results of the settlement agreement. A mediation statement shall have the same legal effect as that of an award.　　If the mediation fails, neither party may invoke any statement or opinion of the other party or the arbitration tribunal in the mediation process as the basis for its request, counterclaim or defense in the subsequent arbitration procedure, judicial procedure or any other procedure.

Article 62 The mediation statement shall set forth the arbitration claims and the results of the agreement between the parties. The mediation statement shall be signed by the arbitrators, sealed by the Arbitration Commission, and served to both parties. The mediation statement shall be legally effective once signed and accepted by both parties. If the parties fall back on their words before the mediation statement is signed and accepted by them, an award shall be made by the Arbitration Tribunal promptly.

Article 63 The arbitration award shall be based on the opinion of the majority arbitrators. The opinion of the minority arbitrators shall be recorded in writing. If an opinion of the majority arbitrators cannot be formed at the arbitration tribunal, the arbitration award shall be made according to the opinion of the presiding arbitrator.

Article 64 For major or difficult cases, the arbitration tribunal may request the Arbitration Commission to organize experts for argument. If the arbitration tribunal does not adopt the expert opinions, it shall state the reasons in writing to the Arbitration Commission.

Article 65 As for the case heard by the arbitration tribunal, if a part of the facts has been ascertained, the arbitration tribunal may make a partial award on that part. The part awarded shall not be re-awarded in the final award, and the partial award shall be legally effective on the date it is made.

Article 66 The arbitration tribunal shall make an arbitration award within three months from the date of the formation of the tribunal (six months for any party involved in a foreign-related, Hong Kong-related, Macao-related or Taiwan-related case). In case of special circumstances requiring extension, the presiding arbitrator or the sole arbitrator shall report to the secretary-general of the Arbitration Commission for approval and the time limit may be extended appropriately. The aforementioned three or six months shall not include the period of announcement, the period of decision on the validity of the arbitration agreement and the period of objection to jurisdiction, and the period of audit, review, evaluation, appraisal, inspection and inquest of specialized issues.

Article 67 The arbitration claim, facts determined, applicable law, reasons for award, results of award, burden of arbitration fees and date of award shall be specified in the award. The matters in dispute and the reasons of award may be ignored in the award if the parties agree not to specify them.

Article 68 The arbitration award and mediation statement shall be signed by the arbitrators and sealed by the Arbitration Commission. Any arbitrator who disagrees on the award may or may not sign the award. The effect of the award shall not be affected if any arbitrator who disagrees on the award does not sign the award.

Article 69 The award shall be legally effective on the date it is made.

Article 70 The parties may, within thirty days of the receipt of the award, request the arbitration tribunal to correct any typographical errors, calculation errors or matters which had been awarded but omitted in the award. The correction award forms part of the original award.

Article 71 The parties shall automatically perform the arbitration award or the effective mediation statement. If one party fails to perform the arbitration award or the effective mediation statement, the other party may, in accordance with the Civil Procedure Law, apply to the people's court in the place where the person subject to enforcement resides or where the property is located for enforcement (for a foreign-related arbitration award, it shall be enforced by the intermediate people's court in the place where the respondent resides or in the place where the property is located). If both parties are legal persons or other organizations, the time limit for applying for enforcement shall be six months. If both parties are citizens or one party is a citizen, the time limit for applying for enforcement is one year. The time limit shall be calculated from the day following the last day of the performance period stipulated in the arbitration award.

Article 72 The parties may, within six months from the date of receipt of the arbitration award, apply to the Hangzhou Intermediate People's Court for cancellation of the award if they submit evidence proving that the award involves one of the following circumstances:

(I) There is no arbitration agreement between the parties;

(II) The matters of the award are beyond the scope of the arbitration agreement or not within the jurisdiction of the Arbitration Commission;

(III) The formation of the arbitration tribunal or the arbitration procedure is in contrary to the legal procedure;

(IV) The evidence on which the award is based is falsified;

(V) The other party has concealed evidence which is sufficient to affect the impartiality of the award; or

(VI) The arbitrator(s) has (have) demanded or accepted bribes, committed graft or perverted the law in making the arbitration award. If the arbitration award is canceled by the people's court in accordance with the law, the parties may, in accordance with an arbitration agreement between them, re-apply for arbitration or initiate legal proceedings with the people's court.

Article 73 The case shall be re-arbitrated if the arbitration tribunal considers that re-arbitration shall be conducted after receiving the notice of re-arbitration from the people's court. If the arbitration tribunal considers that the case shall not be re-arbitrated, it shall submit its written opinions to the Arbitration Commission, and the Arbitration Commission shall notify the people's court by correspondence. In case of any of the circumstances specified in Paragraphs 3 and 6 of Article 72, a new arbitration tribunal shall be formed for re-arbitration. If the arbitration tribunal agrees to re-arbitrate the case, no arbitration fees will be charged.

Article 74 In principle, the arbitration fees shall be borne by the losing party. If a party partially loses the case or partially wins the case, the arbitration tribunal shall determine the proportion of the arbitration fees that each party shall bear according to the responsibilities of each party. If the parties settle the case by themselves via reconciliation or through mediation via the arbitration tribunal, the parties may consulate to determine the proportions of arbitration fees they shall bear. If the parties fail in consultation or fail to consulate, the arbitration tribunal shall made an award on such proportions. If the arbitration procedure is delayed and the fees are increased due to the failure of a party to abide by the principle of good faith or due to other reasons of a party, the increased fees shall be borne by the party at fault.

Article 75 The Arbitration Commission may appoint the parties to make advance payments within a limited period of time for the travel expenses, accommodation expenses and other relevant expenses incurred in handling the case due to the reasons such as the residence of the arbitrator selected by the parties is not in Hangzhou, and relevant arbitration fees arising from such reasons as entrust of audit, review, evaluation, appraisal, inspection and inquest, employment of experts, and translation. The arbitration tribunal shall make an award on who shall ultimately bear the above-mentioned expenses paid in advance by the parties. The arbitration tribunal may make an award on the bearing of the relevant expenses specified in the preceding two paragraphs without limitation to the scope of the request of the parties.

Chapter 7 Summary Procedure

Article 76 Unless otherwise agreed by both parties, the summary procedure shall apply if the amount of dispute does not exceed CNY 200,000. For a case applicable to the summary procedure, the Arbitration Commission shall immediately send a notice of acceptance and a notice of defense to both parties respectively. The parties shall, within ten days from the date of receipt of the notice, jointly select or jointly entrust the chairman of the Arbitration Commission to appoint a sole arbitrator to form an arbitration tribunal to hear the case. If the amount of dispute in a case does not exceed CNY 200,000 and a party requires the application of ordinary procedure, the party shall bear the additional arbitration fees.

Article 77 The summary procedure may also be applied if the amount of dispute exceeds CNY 200,000 and both parties agree on the application of summary procedure.

Article 78 The respondent shall, within ten days from the date of receipt of the copy of the arbitration petition, submit the defense and relevant evidence, and the application for counterclaim and relevant evidence to the Arbitration Commission. The arbitration tribunal shall decide whether to accept the overdue submissions.

Article 79 For changing the arbitration claim or the counterclaim, the claimant or the respondent shall submit a written application to the arbitration tribunal, and the arbitration tribunal shall decide whether to accept it or not. If the arbitration tribunal decides to accept the application, the other party shall submit a written defense within ten days from the date of receipt of the application for change of arbitration claim or the application for counterclaim.

Article 80 If a case is decided to be heard, after the arbitration tribunal determines the date of hearing, it shall notify both parties three days prior to the hearing. A case suitable to the summary procedure shall normally be heard only once. If necessary, the arbitration tribunal may decide to hear the case again. The notice of date of second hearing shall not be subject to the time limit of three days.

Article 81 The proceeding of the summary procedure shall not be affected if the amount in dispute in the case exceeds CNY 200,000 due to the change of arbitration claim or proposal of counterclaim. However, if the arbitration tribunal considers that the case shall be transferred to the ordinary procedure for hearing, the secretary-general of the Arbitration Commission shall make a decision. If it is decided to transfer to the ordinary procedure, the formation of an arbitration tribunal and the time limit for selection of arbitrator(s) shall be subject to the ordinary procedure. It shall be decided by the new arbitration tribunal whether to resume the arbitration procedure that has been conducted before the formation of the new arbitration tribunal.

Article 82 The summary procedure is not applicable to foreign-related arbitration cases.

Chapter 8 Time Limit, Duration and Service

Article 83 The provisions on the time limit for arbitration that are stipulated by law shall apply. If the time limit for arbitration is not stipulated by law, the provisions on the time limit for action shall apply. Generally, the time limit for arbitration shall be two years from the time when the party knows or should know that the right has been infringed on. The special provisions on the time limit for arbitration that are prescribed by law shall apply.

Article 84 The period shall be calculated in days, months and years, and the hour and day at which the period starts are not counted in the period. If the last day of the period is a holiday, the first day after the holiday shall be the expiration date of the period. The period does not include the transit time and it is not deemed as expiration if the arbitration documents, materials and notices are mailed or sent before the expiration of the period.

Article 85 If a party delays the period due to an irresistible cause or other justifiable reason, the party may apply for extension of the period within ten days after the obstacle is removed. The Arbitration Commission or the arbitration tribunal shall decide to approval or disapprove the application.

Article 86 The service shall comply with the following provisions:

(I) When applying for arbitration or defense, any party shall provide or confirm the exact service address to the Arbitration Commission or the arbitration tribunal, and fill in the Confirmation of Service Address, and the party that has made the confirmation shall bear the legal consequences arising therefrom in failure of service. If a party changes the service address before the arbitration closing document is served, it shall promptly notify the Arbitration Commission of the change in writing. If a party refuses to provide its service address and still does not provide its mailing address after being notified by the Arbitration Commission or arbitration tribunal, the service address of a natural person shall be the address of its domicile, habitual residence and the address agreed upon in the contract, and the mailing address of a legal person or other organization shall be the address of the domicile and the address agreed upon in the contract in its industrial and commercial registration or other legal registration or filing;

(II) The arbitration documents, notices and other materials sent to the parties or other agents may be served in person or by registered mail, express mail, facsimile, telex, telegraph or other means deemed appropriate by the Arbitration Commission or the arbitration tribunal. Unless otherwise agreed by the parties and consented by the Arbitration Commission, such agreement shall prevail;

(III) The arbitration documents, notices and materials sent to the parties or their agents, if delivered to the addressee in person or mailed to the place of business, habitual residence or other mailing address of the addressee provided by the addressee or the other party, shall be deemed to have been served. If they are directly served to the parties or their agents and the parties or their agents refuse to sign ad receive the arbitration documents and the service can be held in detention;

(IV) If the place of business, habitual residence or other mailing address of the addressee cannot be found upon reasonable inquiry, it shall be deemed that the documents are served if the Arbitration Commission delivers the documents to the last known place of business, habitual residence or other mailing address of the addressee by post, courier service or any other means capable of providing a record of delivery; and

(V) If a party is missing or cannot be served in the manner prescribed in the Rules, upon the application of one party, and the chairman of the Arbitration Commission deems it necessary and may serve the documents, notices and materials concerning arbitration by public notice. However, the public notice shall not describe the content of the dispute between both parties and the conduct of the arbitration procedure. In case of service by public notice, the claimant shall pay the announcement fee in advance. It shall be deemed as served when the announcement expires. The service by public notice is not applicable to international commercial arbitration cases and cases where the addressee is a legal person. The service by public notice is not applicable if the arbitration document is successfully served to the addressee for the first time, but the later documents are not received by signatures or rejected in the later procedure;

(VI) The arbitration petition shall be deemed to be withdrawn if the Arbitration Commission is unable to serve documents normally and the parties refuse to apply for service by public notice or do not pay the public notice fees.

Chapter 9 Supplementary Provisions

Article 87 The Rules shall be interpreted by the Hangzhou Arbitration Commission.

Article 88 The Rules shall become effective as of September 1, 2013. The arbitration rules applicable to the cases accepted before the implementation of the Rules shall still apply to the cases accepted. The Rules may be applicable to said cases with the consent of both parties.

附件

Return