Brief Introduction:Settlement of Disputes
Monday,January 07,2008 Posted: 18:44 BJT(44 GMT)
MOFCOMfrom: web Article type:Reproduced
Settlement of Disputes
In China, there are four ways of settling commercial disputes: consultation, mediation, arbitration and legal action.
I. Arbitration
Arbitration is commonly adopted way for settling international commercial disputes and so is it in China. It enjoys the advantages of summary procedures, quick handling less cost. It can settle disputes independently, fairly and rapidly. Parties concerned enjoy full rights. It also features flexibility, confidentiality, finalization and easy performance. That is why it is adopted by more and more parties concerned.
China has always advocated and encouraged settlement of international commercial disputes by arbitration. As early as in 1956, the Chinese Government set up an arbitration body whose sole purpose was to settle international commercial disputes. Rapid progress has been made in arbitration of international commercial disputes over the past 50 years. Now, China ranks first in terms of the number of cases handled by Chinese arbitration organizations. The fairness upheld has won universal approval at home and abroad. Parties concerned in dispute cases have come from more than 40 countries and regions. In fact, China has become a world center for handling international commercial disputes.
I. Foreign-related arbitration organizations in China
There are two foreign-related arbitration organizations in China, which are, the China International Economic and Trade Arbitration Commission (CIETAC) and the China Maritime Arbitration Commission (CMAC). The former handles disputes arising from international economic and trade activities and the latter, disputes arising from maritime affairs.
CIETAC is headquartered in Beijing. It has two sub-commissions in Shenzhen and Shanghai and offices in Changsha, Hebei, Dalian, Fuzhou, Chongqing, Jilin, Jiangsu, Zhejiang, Hubei, Shandong, Xinjiang, Henan, Tianjin and Chengdu.
The CIETAC and its sub-commissions accept cases according to the arbitration rules and use the unified arbitration rules and list of arbitrators. Its offices are responsible for offering consulting services, assisting in the arrangement of arbitration court, engaging in arbitration publicity and promotion of arbitration agreements, collecting information about arbitration, carrying out investigation and study and handling other matters commissioned by CIETAC.
China International Economic and Trade Arbitration Commission (CIETAC)
Address: 6th Floor, Gaolan Mansion, 32 Liangmaqiao Road, Chaoyang District, Beijing
Postal code：100016
Tel.：(86-10) 64646688
Fax：(86-10) 64643500,64643520
E-mail：
Website：http://www.cietac.org
CIETAC Shanghai Sub-Commission
Address：7th floor, Building 2, 28 Jingling Road (W), Shanghai
Postal Code：200021
Tel.：（86-021）63877878 63878686
Fax：（86-021）63877070
E-mail：
Website：http://www.cietac-sh.org
CIETAC South China Sub-Commission
Address：19th Floor, BOC Manion, Caitian Road, Futian District, Shenzhen City
Postal Code：518026
Tel.：（86-0775）83501700
Fax：（86-0775）82468591
E-mail：
Website：http://www.sccietac.org
CIETAC Changsha Office
Contact：Fu Nanlin
Address：1st Floor, Foreign Trade Building, 98 Wuyi Road (E), Changsha City
Tel.：0731-2296514
Postal Code：410001
CIETAC Hebei Office
Contact：Li Chao
Address：2nd Floor, Commercial Hall Building No. 334, Heping Road (W), Shijiazhuang City
Tel.：0311-7832953
Postal Code：050071
E-mail:
CIETAC Dalian Office
Contact：Ma Xueqing
Address：Room 1007, 10th Floor, Wanda Mansion, 18 Hongda Road, Zhongshan District, Dalian City
Tel.：0411-82654418
Fax：0411- 82806905
Postal Code：116001
E-mail:
CIETAC Fuzhou Office
Contact：Yang Xinjie
Address：21st Floor, Pindong Office Tower, 128 Hualin Road, Fuzhou City, Fujian Province
Tel.：0591-87818190\0591-87758182
Fax：0591-87842827
Postal Code：350003
CIETAC Chongqing Office
Contact：Zou Hang
Address：19th Floor, International Chamber of Commerce Building, 78 Yanghe Yicun, Jiangbei District, Chongqing City
Tel.：023-67755808
Fax：023-67731702
Postal Code：400020
Beijing Liaison Office
Address: 4th floor, Hualongjie Mid-Section, Nanheyan, Dongcheng District, Beijing
Contact：Bai Liang
Tel.：010-65250622
Fax：010-65250622
Postal Code：100006
E-mail:
CIETAC Jilin Office
Contact：Chen Zhengwei
Address：XX, Beijing St., Jinli, Jilin Province
Tel.：0432-2089200
Fax：0432-2082600
Postal Code：132084
E-mail:
CIETAC Jiangsu Office
Contact：Yu Weining
Address：Building 8, 50 Zhonghua Road, Nanjing, Jiangsu Province
Tel.：025-52254218/52856808
Fax：025-52245267
Postal Code：210000
E-mail:
CIETAC Zhejiang Office
Contact: Wu Zhaoping
Address: 18, Jiaochang Road, Hangzhou, Zhejiang Province
Tel.：0571-87706108
Fax：0571-87706198
Postal Code：310006
CIETAC Hubei Office
Contact：Lu Kunxiang
Address：15th Floor, Jinmao Mansion, 8 Jianghan Road (N), Wuhan City, Hubei Province
Tel.：027-85750913/85796170
Fax：027-85775174
Postal Code：430022
CIETAC Shandong Office
Contact：Gao Jing
Address：158 Jingsi Road, Jinan City, Shandong Province
Tel.：0531-6168389
Fax：0531-6168370
Postal Code：250001
E-mail:
CIETAC Xinjiang Office
Contact：Pu Lei
Address：11 Tuanjie Rd. Urumqi, Xinjiang Uygur Autonomous Region
Tel.：0991-2866771
Postal Code：830001
CIETAC Henan Office
Contact：Wu Yongxin
Address：Building No.2, 115 Wenhua Road, Zhengzhou City, Henan Province
Tel.：0371-3576404
Postal Code：450002
CIETAC Tianjin Office
Contact：Wu Fengling
Address：Room 201, International Trade Building, 85, Qufu Road, Heping District, Tianjin
Tel.：022-23317860/23022835
Postal Code：300042
CIETAC Chengdu Office
Contact：Dai Shaoquan
Address：14th Floor, Shaocheng Building, Shaocheng Road, Shudu Dadao, Chengdu City
Tel.：028-86260418
Postal Code：610015
Electronics Information Center
Contact：Mei Min
Address：2nd Floor, Electronics Building, Wanshou Road, Beijing
Tel.：010-68207154
Fax：010-68200638
Postal Code：100846
E-mail:
CIETAC Shaanxi Office
Contact：Zhang Yuming
Address：Xin Cheng House, Xi’an, Shaanxi Province
Tel.：029-87280794
Fax：029-87280794
Postal Code：710006
CIETAC Heilongjiang Office
Address：Harbin Institute of Technology, 13, Fayuan Road, Nangang District, Harbin, Heilongjiang Province
Tel.：0451－86402007
Fax：0451－87280794
Postal Code：150001
China Maritime Arbitration Commission (CMAC) settles by arbitration disputes arising from maritime affairs, maritime commerce and logistics and other contracting or non-contracting disputes in order to protect the lawful rights and interests of parties concerned and promote the development of international and domestic trade and logistics.
CMAC is headquartered in Beijing and has a sub-Commission in Shanghai and offices in Dalian, Guangzhou, Tianjin and Ningbo. CMAC handles arbitration cases according to the arbitration rules while its offices offer consulting services, assist in the arrangement of arbitration court, make publicity of arbitration and promotion of arbitration agreement as well as collect information about arbitration, carry out investigations and handle other matters designated or entrusted by CMAC.
China Maritime Arbitration Commission (CMAC)
Address：6th floor, Gaolan Mansion, 32, Liangmaqiao Road, Chaoyang District, Beijing
Postal Code：100016
Tel.：(86-10)64646688
Fax：(86-10)64643500,64643520
E-mail：
Website：http://www.CMAC.org.cn
CMAC Shanghai Sub-Commission
Address：Rooms 1301, 1314, 13th floor, Tangchen Jinrong Mansion, 710 Dongfang Road, Pudong, Shanghai
Postal Code：200122
Tel.：021-58200329 50810729
Fax：021-50810965
CMAC Dalian Office
Address：R. 1007, 10th floor, Wanda Mansion,Hongda Rd. Zhongshan District, Dalian City
Postal Code：116001
Tel.：0411-2654418
Fax：0411-2654438
CMAC Guangzhou Office
Address： R. 930, 4th floor, Zhongyang Hotel Office Tower, 33 Airport Rd. Sanyuanli, Guangzhou
Postal Code：510405
Tel.：020-86578331-1930
Fax：020-86581343
CMAC Tianjin Office
Address：R. 205, International Trade Building, 85, Heping District, Tianjin
Postal Code：300042
Tel.：86-22 23301340/23022385
Fax：86-22 23301340
CMAC NingboOffice
Address：12th Floor, Tianning Building, 138, Zhongshan Rd. (W), Ningbo City
Postal Code：315000
Tel.：86-574 87368209
Fax：86-574 87368100
II. Cases to be accepted
Commercial cases to be accepted
The Arbitration Commission shall settle disputes of contractual or non-contractual economic trade in an impartial and fair manner through arbitration.
According to the provisions of Article 3 of the Arbitration Rules of the CIETAC, the Arbitration Commission shall accept disputes as follows:
a. International or foreign-related disputes;
b.Disputes involving Hong Kong and Macao special administrative regions or Taiwan Province;
c. Domestic disputes.
According to the provisions of Article 2 of the Financial Disputes Arbitration Rules of the CIETAC, the Arbitration Commission shall accept disputes arising from financial business or other disputes concerned, including but not limited to businesses as follows:
a.Loans;
b.Deposit receipts;
c.Security;
d.Letters of credit;
e.Bills;
f.Funds of business and trusteeship;
g.Bonds;
h.Collection and foreign exchange remittance;
i.Factoring;
j.Payment agreement between banks;
k.Securities and futures.
Maritime arbitration cases to be accepted
a.Disputes arising from charter party, contract of multi-model transport, bill of lading, waybill or any other transport documents in connection with carriage of goods by sea or waters, or carriage of passengers;
b.Disputes arising from sale, construction, repair, chartering, financing, towage, collision, salvage or raising of ships or other offshore mobile units, or from sale, construction, chartering, financing and other relative business of containers;
c.Disputes arising from marine insurance, general average or ship's protection and indemnity;
d.Disputes arising from supply or security of ship's stores or fuel, ship's agency, seamen's labor service or port's handling;
e.Disputes arising from exploitation and utilization of marine resources or pollution damage to marine environment;
f.Disputes arising from freight forwarding, non-vessel operating common carriage, transport by highway, railway or airway, transport, consolidation and devanning of containers, express delivery, storing, processing, distributing, warehouse distributing, logistics information management, or from construction, sale and leasing of tools of transport, tools of carrying and handling, storage facilities, or from logistics center and distribution center, logistics project planning and consulting, insurance related to logistics, tort or others related to logistics;
g.Disputes arising from fishery production or fishing; and
h.Other disputes submitted for arbitration by agreement between parties.
III. Model arbitration clauses
When applying for arbitration, the claimant must submit an arbitration agreement, which may be arbitration clauses incorporated in the contract or any agreement reached for arbitration before or after the disputes. According to China’s laws, a valid arbitration agreement must be accompanied by expressed claim of arbitration, a selected arbitration committee, and agreed items in arbitration (which may be settled through arbitration). The agreement must be in written form. Parties concerned must have the capacity of signing the arbitration agreement, which is legal in contents and form.
The China International Economic and Trade Arbitration Commission (China Maritime Arbitration Commission) recommend the following model arbitration clause:
"Any dispute arising out of or in connection with this contract shall be submitted to the China International Economic and Trade Arbitration Commission (China Maritime Arbitration Commission) for arbitration in accordance with the existing rules of the Commission. The arbitration award shall be final and binding upon the parties."
To the above arbitration clause, parties concerned may add the following items, or make supplementary agreements in written forms after arbitration clauses/agreements are reached and before disputes are submitted for arbitration or arbitration procedures begin:
a. Place of Arbitration and/or place of court;
b. Arbitration language to be used;
c. Number of arbitrators required;
d. Nationalities of arbitrators;
e. Law to be applied;
f.Ordinary procedures or simplified procedures to be applied.
IV. Guide to CIETAC arbitration procedures
1.Application procedure
When applying for arbitration, the claimant must submit to Secretariat of the Arbitration Commission or Secretariats of the Sub-commissions an arbitration agreement and an application for arbitration in writing, and the facts and evidence on which his claim is based, and the claimant shall pay an arbitration fee in advance to the Arbitration Commission according to the Arbitration Fee Schedule of the Arbitration Commission.
(1)The Application for Arbitration
The following shall be specified in the Application for Arbitration:
a. the name and address of the claimant and those of the respondent, including the zip code, telephone number, telex number, fax number and cable number or any other means of electronic telecommunications, if any;
b. the Arbitration agreement relied upon by the claimant;
c. the facts of the main points of dispute;
d.. the claimant's claim; and
e. the facts and grounds on which the claim is based;
f. The Application for Arbitration shall be signed and/or stamped by the claimant and/or the attorney authorized by the claimant.
The copies of arbitration application and evidence materials should the sum total of the number of people of the applicant side, arbitration court and secretariat.
After applying for arbitration, the claimant may request to amend his arbitration claim; but the arbitration tribunal may refuse such a request for amendment if it considers that it is too late to raise the request and the amendment may affect the arbitration proceedings.
(2) Defense and Counterclaim
At the time of sending the Notice of Arbitration to the respondent, the Secretariat(s) of the Arbitration Commission shall enclose one copy each of the claimant's application for arbitration and its attachment as well as the Arbitration Rules, the Panel of Arbitrators and the Arbitration Fee Schedule of the Arbitration Commission.
In foreign arbitration, the respondent shall, within 45 days from the date of receipt of the Notice of Arbitration, submit to the Secretariat(s) of the Arbitration Commission his written defense and relevant documents to be entered into evidence. In domestic arbitration, the respondent shall, within 20 days from the date of receipt of the Notice of Arbitration, produce his written defense and relevant documentary evidence to the Secretariat(s) of the Arbitration Commission. The respondent may request to amend his defense. The respondent shall submit his defense within the time limit specified by the arbitration tribunal. The arbitration tribunal may extend that time limit appropriately if it deems that there are justified reasons. The arbitration tribunal has the power to decide whether to accept a Statement of Defense submitted after expiration of the aforementioned time limit.
The respondent may lodge his counterclaim during the arbitration procedure, and the counterclaim must meet the following three requirements:
a. the counterclaim arises from the same contract relation or legal relation as that of the claims raised by the claimant;
b. the counterclaim is directed against the claimant;
c. the disputes involved in the counterclaim shall not be the same as the disputes involved in the arbitration claims.
The counterclaim shall, at the latest within 45 days (in foreign-related cases) or 20 days (in domestic cases or summary procedure cases) from the respondent's receipt of the Notice of Arbitration, be submitted to the Arbitration Commission. The arbitration tribunal may extend that time limit appropriately if it deems that there are justified reasons.
When lodging a counterclaim, the respondent shall lodge with the arbitration tribunal his counterclaim in writing, and state in it his specific claim, reasons for his claim and facts and evidence upon which his counterclaim is base and attach to his written statement of counterclaim the relevant documentary evidence. The written statement of counterclaim may be submitted together with his defense or alone. The written statement of counterclaim and the relevant documentary evidence shall be submitted in the same copies as the total number of the parties and arbitrators put together, so that all of the parties, arbitrators and the Secretariat(s) could get one copy each.
When lodging his counterclaim, the respondent shall pay a deposit in advance as arbitration fee according to the Arbitration Fee Schedule of the Arbitration Commission.
The respondent may request to amend his counterclaim, but the arbitration tribunal may refuse such request for amendment if it considers that it is too late to raise the request and the request may affect the arbitration proceedings.