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Labor Arbitration in China

Time:2020-02-04 Hit:202

Labor Arbitration in China


Arbitration procedure is mandatory

Arbitration is a mandatory dispute resolution for labor cases. A case must first be heard by the Labor Arbitration tribunal designated by the local Labor Arbitration Commission before it can be filed to a people’s court. There are only very few situations where the arbitration process can be skipped (such as payment of delayed salary with a promissory note issued by employer).


Most cases are arbitrated by a sole arbitrator

Simple cases may be arbitrated by a sole arbitrator. Arbitrators are representatives from the labor administrative authority, or labor union members, experts, academics and lawyers as full or part-time arbitrators.


Venue:

The place of performance of the labor contract;

The place where the employer is located;


Both the place where the labor contract is performed and the place where is employer is located have the jurisdiction. The place where the labor contract is performed shall prevail if the parties file to both the arbitration commission at the same time.


Application:

Written application must be filed to the arbitration commission to start the process which shall cover the following;

Both parties’ information including contact information;

The claims;

The facts based on which the claims are made;

Evidence related and witnesses’ information;


The arbitration commission shall review and make decision on whether the case is accepted or not within 5 working days. A written notice must be produced if the arbitration commission decides not to accept the case.

Statute limitation: 1 year

Generally, the related party must file the case for arbitration within one year since the date that the party knows or should have known the infringement of its rights.

Burden of proof

Each Party bears the burden of proof of its allegation, and the employer shall bear the burden of proof to provide evidence under its management or control. For example, if it’s a wrongful termination case, it’s understandable that the employer shall have the evidence on which it based the termination of the labor contract. Therefore, the arbitrator may require the employer to produce such evidence to prove rightful termination.

Time limitation of the proceeding: 45 days;

The arbitration award must be produced within 45 days from the date the case is accepted, the arbitrator may extend 15 days if the case is complicated though.


Arbitration award can be challenged if “appealed” to people’s court within 15 days of its receipt.


The arbitration award can be challenged before the people’s court if a party files the case to people’s court within 15 days after the receipt of the arbitration award.


Arbitration award can be challenged if “appealed” to people’s court within 15 days of its receipt. However, there are also few things can not be heard by court such as small claim for unpaid salary, work injury medical costs, severance and compensation which amount does not exceed 12 months of the local minimum wages in value, and dispute about enforcement of labor standards relating to work hours, rest time, leave and social insurance.

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