Beijing Arbitration Commission Arbitration Rules

Beijing Arbitration Commission Arbitration Rules

(revision draft for comments)

Chapter I: General Provisions

Article 1: The Beijing Arbitration Commission

(1) The Beijing Arbitration Commission (the BAC) is an arbitration institution registered in Beijing, China for resolving contractual disputes and other disputes over rights and interests in property between natural persons, legal persons and other organizations.

(2) The Chairman of the BAC (the Chairman) or, with the authorization of the Chairman, one of the Vice-Chairmen or Secretary-General of the BAC, shall perform the functions and duties vested in him/her by the Arbitration Rules of the BAC (the Rules).

(3) The Secretariat of the BAC (the Secretariat) shall handle the day-to-day affairs of the BAC. A member of its staff shall be designated as the case manager, responsible for the administration of case procedures and related services.

Article 2: Application of the Rules

(1) Where the parties to a dispute have agreed to submit to arbitration by the BAC, the Rules shall apply, save to the extent that the parties have agreed to the application of a different procedure or a different set of arbitration rules, in which case their agreement must comply with the mandatory law of seat of arbitration and be enforceable. Where the parties have agreed to the application of a different set of arbitration rules, the BAC shall perform the administrative functions and duties stipulated by such rules.

(2) Where the parties agree to apply the BAC rules, but do not choose a specific arbitration institution, they shall be deemed to have agreed to submit their disputes to the BAC.

(3) In all matters not expressly provided for in the Rules, the BAC or the Arbitral Tribunal shall have the power to proceed the arbitral proceedings in a manner as it considers appropriate, in order to contribute to the efficient and fair resolution of the disputes between the parties concerned.

(4) The BAC, the Arbitral Tribunal, the parties and their representatives shall apply the Rules in accordance with the principle of bona fide, collaboration and amiable dispute settlement.

Article 3: Waiver of Right to Object

A party who knows or should have known a failure to comply with any provision of the Rules or any term of the arbitration agreement, but nevertheless takes part in or proceeds with the arbitral proceedings without promptly raising its objection to such non-compliance in writing, shall be deemed to have waived its right to object.

Chapter II: Arbitration Agreement

Article 4: Definition and Form of Arbitration Agreement

(1) An arbitration agreement is an agreement by parties to submit to arbitration all or certain disputes which have arisen or which may arise between the parties. An arbitration agreement includes an arbitration clause in a contract or any other written arbitration agreement.

(2) An arbitration agreement shall be in written form, including but not limited to contractual instruments, letters and electronic data messages (including telegrams, telexes, facsimiles, EDIs and e-mails) and any other forms of communication where the contents are visible.

(3) Where, in the exchange of the Application for Arbitration and the Statement of Defence, one party claims the existence of the Arbitration Agreement whereas the other party does not deny such existence, it shall be deemed that there exists a written Arbitration Agreement.

Article 5: Separability of Arbitration Agreement

An arbitration agreement shall be independent of and separate from the contract in which it is contained. The validity of an arbitration agreement shall be judged separately, and it shall not be affected by the establishment, non-establishment, modification, rescission, termination, invalidity, expiry, non-effectiveness, or revocation of the contract.

Article 6: Objection to Jurisdiction

(1) If a party objects to the existence or the validity of an arbitration agreement or the jurisdiction over an arbitration case, it may raise a jurisdictional objection to the BAC. A jurisdictional objection shall be raised in writing before the first oral hearing. As for a documents-only hearing, the written objection shall be raised prior to the expiry of the time limit for the submission of the first round of defence.

(2) If a party has not raised any jurisdictional objections pursuant to the provisions of the preceding paragraph, it shall be deemed to have accepted that the BAC has jurisdiction over the arbitration case.

(3) The arbitration shall proceed notwithstanding any jurisdictional objection raised by any party to the BAC.

(4) The BAC or, if so authorized by the BAC, the Arbitral Tribunal, shall have the power to determine on its jurisdiction over an arbitration case. The Arbitral Tribunal may make its decision on jurisdiction either during the arbitral proceedings or in an award.

(5) Where the BAC or the Arbitral Tribunal authorized by the BAC decides that the BAC has no jurisdiction over an arbitration case, the case shall be dismissed. Where a case is to be dismissed before the formation of the Arbitral Tribunal, the decision shall be made by the BAC. Where the case is to be dismissed after the formation of the Arbitral Tribunal, the decision shall be made by the Arbitral Tribunal.

Chapter III: Application for Arbitration, Defence and Counterclaim

Article 7: Application for Arbitration

(1) A party applying for arbitration shall submit :

(a) the arbitration agreement;

(b) its Statement of Claim, containing the following information:

(i) the names, addresses, zip codes, telephone numbers, facsimile numbers and any other convenient means of contact of the Claimant and the Respondent; (where a party concerned is a legal person or organization, the name, position, address, zip code, telephone number, facsimile number and any other convenient means of contact of the legal representative or the person in charge);

(ii) the claims and the facts and grounds on which the claims are based;

(d) proof of the Claimant’s identity.

(2) A party applying for arbitration shall deposit an advance on costs in accordance with the provisions of the BAC’s Arbitration Fee Schedule. Where the amount in dispute is not clear in the claims of the party concerned, the BAC shall determine the amount in dispute or the arbitration fee that shall be deposited in advance.

(3) An application for deferment of the deposit can be made to the BAC in the event of hardship. The BAC shall decide on such applications. If a party applying for arbitration has neither deposited the advance in costs nor applied for deferment or has failed to deposit the full amount of the advance in costs within the time limit for deferment of such deposit approved by the BAC, it shall be deemed to have not submitted or have withdrawn its Application for Arbitration.

Article 8: Case Acceptance

(1) Upon receipt of the Application for Arbitration, the BAC shall accept the Application for Arbitration within 5 days from the date when the applicant has deposited the advance in costs if the BAC finds that the requisite requirements for acceptance are met.

(2) Where the Application for Arbitration does not fulfill the requirements stipulated by Article 7, the applicant shall rectify it within the time limit stipulated by the BAC, where the applicant fails to rectify it, the applicant shall be deemed not to have submitted an Application for Arbitration.

(3) The arbitral proceedings shall be deemed to commence on the date of acceptance of the Application for Arbitration by the BAC.

Article 9: Notice of Arbitration

Within 10 days of the acceptance of the Application for Arbitration, the BAC shall send to the Claimant a Notice of Case Acceptance, a set of the Rules and the BAC’s Panel of Arbitrators. The BAC shall send to the Respondent a Request for Submission of Defence, as well as a copy of the Application for Arbitration, its attachments, if any, a set of the Rules, and the BAC’s Panel of Arbitrators.

Article 10: Defence

(1) Within 15 days of the receipt of the Request for Submission of Defence, the Respondent shall submit to the BAC such documents listed below:

(a) Statement of Defence clarifying information listed below:

(i) the names, addresses, zip codes, telephone numbers, facsimile numbers and any other convenient means of contact of the Respondent; (where a party concerned is a legal person or organization, the name, position, address, zip code, telephone number, facsimile number and any other convenient means of contact of the legal representative or the person in charge);

(ii) the defence opinion and the facts and grounds on which the defence is based;

(b) the evidence or other documents on which the defence is based; and

(2) Within 10 days of the receipt of the Statement of Defence, the BAC shall send a copy of the Statement of Defence to the Claimant.

(3) The progress of the arbitral proceedings shall not be affected by the Respondent’s failure to submit its Statement of Defence.

Article 11: Counterclaim

(1) The Respondent shall file a counterclaim, if any, in writing within 15 days from the date of receipt of the Request for Submission of Defence.If the Counterclaim is not submitted within the stipulated period of time, the Arbitral Tribunal, or if the Arbitral Tribunal has not been constituted, the BAC, shall decide whether to accept the Counterclaim.

(2) When deciding whether or not to accept the Counterclaim filed after the expiration of the above time limit, the BAC or the Arbitral Tribunal shall take into account the necessity for consolidating the Counterclaim and the Claim into one case, the time period exceeded, whether unnecessary delay will be caused and other related factors.

(3) The provisions of Article 7 and Article 8 shall apply to the submission and acceptance of the Counterclaim.

(4) Within 10 days of the acceptance of the Counterclaim, the BAC shall send to the Claimant a Request for Submission of Defence to Counterclaim, as well as the Counterclaim and its attachments, if any.

(5) The provisions of Article 10 shall apply to the Claimant’s submission of its Statement of Defence to Counterclaim.

(6) Any other items concerning the counterclaim not stipulated by the Rules shall refer to the provisions concerning application for arbitration.

Article 12: Amendment to Claim or Counterclaim

(1) The parties may amend its Claim or Counterclaim in writing. The amendment shall be accepted by the Arbitral Tribunal, or if the Arbitral Tribunal has not been constituted, by the BAC.

(2) Where the amendment to the Claim or Counterclaim is too late and may affect the arbitral proceedings, the BAC or the Arbitral Tribunal shall have the power to refuse acceptance of its amendment.

(3) The provisions of Articles 7 to 10 of the Rules shall apply to such matters as acceptance of and defence to an application to amend the Claim or Counterclaim.

Article 13 Claims between Multiple Claimants and Respondents

(1) Where there are two or more Claimants and Respondents in an arbitration case, any party may raise claims against any other party under the same arbitration agreement.

(2) The provisions of Articles 7 to 12 shall apply to such matters as submission of, amendment to, acceptance of, and defence to the above claims.

(3) The Arbitral Tribunal shall decide whether or not to accept any new claim raised after the Arbitral Tribunal has been constituted.

(4) After the above claims have been accepted by the BAC or the Arbitral Tribunal, the status of each party in the arbitral proceedings shall remain unchanged.

Article 14: Number of Copies of Submissions

The Statement of Claim, the Statement of Defence, the Statement of Counterclaim, evidence and other written documents should be submitted in quintuplicate. If there are more than two parties, additional copies should be provided accordingly. If the Arbitral Tribunal is composed of a sole arbitrator, the number of copies can be reduced by two.

Article 15: Preservation Measures

(1) A party may raise an application for an order for the preservation of the other party’s property, or to require the other party to conduct a certain behavior or to be prohibited from conducting a certain behavior, if the enforcement of any award that it may obtain subsequently is likely to be difficult or if other damages are likely to be caused to the party, as a result of the conduct of the other party or other factors.

(2) A party may apply for an order for the preservation of evidence if the evidence may be destroyed or lost, or may subsequently be inaccessible.

(3) Where a party submits to the BAC the above application, the BAC shall forward the application to the competent court.

(4) In an emergency circumstance where a party’s lawful right and interests would be irreparably damaged or the evidence may be destroyed or lost, or may subsequently be inaccessible if it does not apply for an preservation immediately, the party may raise an application for such preservation before submitting its Application for Arbitration.

Article 16: Representation

Where a party is represented by its authorized representatives, the power of attorney setting out the matters specifically entrusted and the scope of the authorized representative’s authority should be submitted to the BAC.