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China arbitration law :arbitration agreement

Time:2014-03-13 Hit:898

China arbitration law :arbitration agreement

   Article 16 An arbitration agreement includes an arbitration clause in the contract and the arbitration agreement in writing concluded before or after the dispute.

The arbitration agreement shall contain the following:

(A) A request for arbitration intention

(B) The arbitration matters

(C) The selected arbitration committee

Article 17 the arbitration agreement is invalid under the following circumstances:

(A) Arbitration matters agreed is beyond the scope of the law of arbitration ;

(B) An arbitration agreement entered by people with no civil capacity or with limited capacity for civil conduct;

(C) The arbitration agreement is signed by force.

   Article18 whereas an arbitration matter in an agreement or the arbitration committee for arbitration is not agreed or clear, the parties may conclude a supplement agreement; unless the supplement agreement is not concluded, the arbitration agreement is invalid.

   Article 19 An arbitration agreement stands independently. The change, rescission, termination or invalidity of the contract does not affect the validity of the arbitration agreement.

   The arbitral tribunal has the right to confirm the validity of the contract.

   Article 20 Whereas a parties doubt the validity of the arbitration agreement, a request may be made to the arbitration commission or to the people’s court, if one party request to the arbitration and the other party request to the people’s court, the people’s court shall make the final decision.

   The doubt of the validity of an arbitration agreement shall be raised before the first hearing of the arbitration tribunal.

   Chapter IV arbitration procedure

   Section Application and Acceptance

   Article 21 The application for arbitration the parties shall comply with the following conditions:

(A) There is an arbitration agreement ;

(B) There is a specific claim along with the facts and reasons ;

(C) Within the jurisdiction of the Arbitration Commission.

   Article 22 If the party applying for arbitration, the arbitration agreement shall be submitted to an arbitration committee, along with a copy of the application and arbitration.

   Article 23 The application for arbitration shall contain the following :

(A) Name of the parties, gender, age, occupation, place of work and residence, name of a legal person or other organization, address and legal representative or name of a legal representative or name and position of the leading members;

(B) The arbitration request and facts based;

(C) Evidence and its source, the name and address of the witness.

   Article 24: Arbitration Commission shall accept the application within 5 days after the receipt of the arbitration application, if the application meets the conditions of admissibility, notify the parties; if it does not comply with the conditions of admissibility, the arbitration commission shall notify the parties in writing and explain the reasons.

   Article 25: After accepting the application for arbitration, the Arbitration Commission, shall, within the time limit specified in the arbitration rules of Arbitrators Arbitration Rules and served on the applicant with a copy of the application for arbitration and the arbitration rules of Arbitrators to the respondent.

   Upon receipt of a copy of the arbitration application, the respondent shall submit a statement of defence Arbitration Commission Arbitration Rules within the time limit prescribed. After receipt of the defence, the Arbitration Commission shall, within the time limit arbitration rules serve a copy of the reply to the applicant. If the respondent did not submit a statement of defence, it does not affect the arbitration proceedings.

   Article 26: if parties have agreed on an arbitration agreement, but the plaintiff does not notify the people's court when bringing a lawsuit, after the people’s court accepted the case, the other party submits the agreement for arbitration before the opening of the first hearing, the court shall dismiss the lawsuit unless the arbitration agreement is invalid; if the other party fails to raise the objection before the first hearing, it shall be regarded as a waiver of the arbitration agreement, the court shall continue the hearing .

   Article 27: the applicant may abandon or change the claim. The respondent may accept or refute the arbitration request and has the right to make a counterclaim.

   Article 28: due to the behaviour of the other party or other reasons, an award may be impossible or difficult to enforce, one party may apply for property preservation.

   Whereas a party applies for property preservation, the arbitration commission shall submit the party's application to the People's Court Civil Procedure Law in accordance with the relevant provisions.

   If such an application is a wrong done to the defendant, the applicant shall be responsible for damages suffered due to the preservation of property.

   Article 29: either party or their legal representatives may appoint lawyers and other agents for the arbitration, the power of attorney shall be submitted to the arbitration committee.

   Article 30: the arbitral tribunal may consist of three arbitrators or one arbitrator. In the case of three arbitrators, there shall be a chief arbitrator.

   Article 31: if parties have agreed to form an arbitration tribunal of three arbitrators, each party shall appoint or delegate the Arbitration Commission to appoint an arbitrator, the third arbitrator shall be jointly selected by the parties or designated jointly commissioned by the Arbitration Commission, the third arbitrator shall be the chief arbitrator

   If the parties agree on one arbitrator for the arbitral tribunal, the arbitrator shall be selected jointly by the parties or jointly entrust the Chairman of the arbitration commission to appoint an arbitrator.

   Article 32: where the parties have not agreed upon within the period specified in the arbitration rules of the composition of the arbitral tribunal or the selected arbitrator, it shall be appointed by the Arbitration Committee.

   Article 33: after the formation of the arbitral tribunal, the arbitration committee shall notify the parties of the composition of the arbitration tribunal in writing.

   Article 34: an arbitrator of the following circumstances shall be withdrawn, the parties have the right to apply for his withdrawal:

(A) The arbitrator is a blood relation relative of the party or party to the case

(B) Interest in the case

(C) Any other relationship with the party to the case, the agent may affect the impartiality of the arbitration

(D) Secretly met with the parties, agents, or accept a party 's agent dinners

   Article 35: the parties proposed withdrawal shall state the reasons before the first hearing. If the reason is known after the first hearing, it shall be made before the end of the last hearing.

   Article 36: withdrawal of the arbitrator shall be decided by the Arbitration Commission; the withdrawal of the chairman of the Arbitration Commission who is serving as an arbitrator, a collective decision shall be made by the arbitration committee

   Article 37: if the arbitrator cannot perform his duties due to withdrawal or other reasons, the new arbitrator shall be chosen or appointed in accordance with the provisions of this Law.

 After the newly arbitrator is selected or appointed, the parties may request the arbitration proceeding carried out from the very beginning at the discretion of the arbitral tribunal or at the request of the parties.

   Article 38: whereas a case provided for in 4. of Article 34 of this law is found with an arbitration and the case is very serious or a case provided for in 6. of Article 58 of this law is found with an arbitrator, the arbitrator shall be liable in accordance with law , and such member should be removed from arbitration the Commission.

   Article 39: the arbitration hearing shall be conducted as an oral hearing to hear a case. If parties agree not to hold an oral hearing, the arbitral tribunal may hear make the award on the arbitration application, defence answer, and other materials.

   Article 40: the arbitration shall not be conducted in public. If parties agree to conduct in public in a written agreement, the arbitration shall be conducted in public unless it involves state secrets.

   Article 41: the Arbitration Commission shall, within the time limit notify the parties of the hearing date according to the arbitration rules. A party may request within the time limit specified in the arbitration rules to postpone the hearing for justified reasons. Whether to postpone the hearing is up to the arbitral tribunal.

   Article 42: applicants that duly served with written notice to appear in court fails to appear without justifiable reasons or without the permission of the arbitral tribunal retires, can be considered withdrawn the application for arbitration.

   A respondent that duly served with written notice to appear in court without justifiable reasons or without permission withdraws from the arbitration, the tribunal may give the award by default.

   Article 43: the parties shall provide evidence to support their claims.

   The arbitral tribunal that may collect considers when the tribunal deems it is necessary to collect evidence.

   Article 44: the arbitral tribunal may entrust the appraisal department when the tribunal considers it necessary to specialized issues. According to the request of the parties or the arbitral tribunal, the appraisal department shall appoint an appraiser to participate in the hearing. Parties may question the appraiser upon the approval of the arbitration tribunal.

   Article 45: evidence shall be produced at the hearing, the parties may cross-examine the evidence.

   Article 46: in the case the evidence may be lost or difficult to obtain, the parties may apply for evidence preservation. Parties apply for preservation of evidence, the arbitration commission shall submit the application to the people’s court where the evidence is located.

   Article 47: the parties have the right to debate during the arbitration process. At the end of the debate, the chief arbitrator or the sole arbitrator shall consult the final opinion of the parties.

   Article 48: the arbitration tribunal shall keep a written record of the hearing. Parties and other participants in the arbitration may correct their statements if they think there are omissions or errors, If it is not corrected, such application shall be recorded.

   The recording shall be signed or sealed, by arbitrators, parties and other participants in the arbitration

   Article 49: after the application for arbitration, parties may settle on their own. If the parties reach a settlement agreement, they may request the arbitral tribunal to make an award under the Settlement Agreement, they may also withdraw the application for arbitration.

   Article 50: whereas the parties concerned have gone back on their word after they have reached a reconciliation agreement, they may apply for arbitration in accordance with the arbitration agreement.

   Article 51: the arbitration tribunal may reconcile a case before passing the award. upon voluntary mediation the parties, the arbitration tribunal may conduct the reconciliation. Should the reconciliation fail, the award shall be made promptly, If two parties concluded mediation agreement, the arbitral tribunal shall make a mediation agreement or based on the results produced award. Mediation and the arbitral award has the same legal effect.

   Article 52: the document of reconciliation shall specify the results of the mediation and the arbitration agreement between the party's request. Conciliation statement signed by the arbitrators, sealed by the arbitration committee, and served on the parties.

    The mediation shall have legal effect after signed by the parties.

If the parties refuse to sign the conciliation agreement, the arbitral tribunal shall make a timely decision.

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