Chapter II Arbitral Proceedings

Section 1 Request for Arbitration, Defense and Counterclaim

Article 9 Commencement of Arbitration

The arbitral proceedings shall commence on the date on which the CIETAC or one of its Sub-Commissions receives a Request for Arbitration.

Article 10 Application for Arbitration

A party applying for arbitration under these Rules shall:

1. Submit a Request for Arbitration in writing signed by and/or affixed with the seal of the Claimant and/or its authorized representative(s), which shall, inter alia, include:

(a) the names and addresses of the Claimant and the Respondent, including the zip code, telephone, telex, fax and telegraph numbers, Email addresses or any other means of electronic telecommunications;
(b) a reference to the arbitration agreement that is invoked;
(c) a statement of the facts of the case and the main issues in dispute;
(d) the claim of the Claimant; and
(e) the facts and grounds on which the claim is based.

2. Attach to the Request for Arbitration the relevant evidence supporting the facts on which the Claimant’s claim is based.

3. Make payment of the arbitration fee in advance to the CIETAC according to its Arbitration Fee Schedule.

Article 11 Acceptance of a Case

1. Upon receipt of the Request for Arbitration and its attachments, if the CIETAC after examination finds the formalities required for arbitration application to be incomplete, it may request the Claimant to complete them. Where the formalities are found to be complete, the CIETAC shall send a Notice of Arbitration to both parties together with one copy each of the CIETAC Arbitration Rules, the Panel of Arbitrators and the Arbitration Fee Schedule. The Request for Arbitration and its attachments submitted by the Claimant shall be sent to the Respondent under the same cover.

2. The CIETAC or its Sub-Commission shall, after accepting a case, appoint a staff-member of its secretariat to assist the arbitral tribunal in the procedural administration of the case.

Article 12 Statement of Defense

1. Within forty-five (45) days from the date of receipt of the Notice of Arbitration, the Respondent shall file a Statement of Defense in writing with the Secretariat of the CIETAC or its Sub-Commission. The arbitral tribunal may extend that time period if it believes that there are justified reasons. The Statement of Defense shall be signed by and/or affixed with the seal of the Respondent and/or its authorized representative(s), and shall, inter alia, include:

(a) the names and addresses of the Respondent, including the zip code, telephone, telex, fax and telegraph numbers, Email addresses or any other means of electronic telecommunications;

(b) the defense to the Request for Arbitration setting forth the facts and grounds on which the defense is based; and

(c) the relevant evidence supporting the defense.

2. The arbitral tribunal has the power to decide whether to accept a Statement of Defense submitted after expiration of the above time limit.

3. Failure of the Respondent to file a Statement of Defense shall not operate to affect the arbitral proceedings.

Article 13 Counterclaim

1. Within forty-five (45) days from the date of receipt of the Notice of Arbitration, the Respondent shall file with the CIETAC its counterclaim in writing, if any. The arbitral tribunal may extend that time period if it believes that there are justified reasons.

2. When filing a counterclaim, the Respondent shall specify its counterclaim in its written Statement of Counterclaim and state the facts and grounds upon which its counterclaim is based with relevant evidence attached thereto.

3. When filing a counterclaim, the Respondent shall pay an arbitration fee in advance according to the Arbitration Fee Schedule of the CIETAC within a specified time period.

4. Where the formalities required for filing a counterclaim are found to be complete, the CIETAC shall send the Statement of Counterclaim and its attachments to the Claimant. The Claimant shall, within thirty (30) days from the date of receipt of the Statement of Counterclaim and the attachment, submit in writing its Statement of Defense to the Respondent’s counterclaim.

5. The arbitral tribunal has the power to decide whether to accept a Statement of Defense submitted after expiration of the above time limit.

6. Failure of the Claimant to file a Statement of Defense to the Respondent’s counterclaim shall not operate to affect the arbitral proceedings.

Article 14 Amendments to the Claim or Counterclaim

The Claimant may amend its claim and the Respondent may amend its counterclaim. However, the arbitral tribunal may not permit any such amendment if it considers that the amendment is too late and may delay the arbitral proceedings.

Article 15 Copies of Submissions

When submitting the Request for Arbitration, the Statement of Defense, the Statement of Counterclaim, evidence and other documents, the parties shall make the submissions in quintuplicate. Where there are more than two parties, additional copies shall be provided accordingly. Where the arbitral tribunal is composed of a sole arbitrator, the number of copies submitted may be reduced by two. Where the preservation of property or protection of evidence is applied for, the party shall forward one additional copy accordingly.

Article 16 Representation

1. A party may be represented by its authorized representative(s) in handling matters relating to the arbitration. In such a case, a Power of Attorney shall be forwarded to the CIETAC by the party or its authorized representative(s).

2. Either Chinese or foreign citizens may be authorized by a party to act as its representative(s).

Article 17 Preservation of Property

When any party applies for the preservation of property, the CIETAC shall forward the party’s application for a ruling to the competent court at the place where the domicile of the party against whom the preservation of property is sought is located or where the property of the said party is located.

Article 18 Protection of Evidence

When a party applies for the protection of evidence, the CIETAC shall forward the party’s application for a ruling to the competent court at the place where the evidence is located.

Section 2 The Arbitral Tribunal

Article 19 Duties of Arbitrator

An arbitrator shall not represent either party and shall remain independent of the parties and treat them equally.

Article 20 Number of Arbitrators

1. The arbitral tribunal shall be composed of one or three arbitrators.

2. Unless otherwise agreed by the parties or provided by these Rules, the arbitral tribunal shall be composed of three arbitrators.

Article 21 Panel of Arbitrators

1. The parties shall appoint arbitrators from the Panel of Arbitrators provided by the CIETAC.

2. Where the parties have agreed to appoint arbitrators from outside of the CIETAC’s Panel of Arbitrators, the arbitrators so appointed by the parties or nominated according to the agreement of the parties may act as co-arbitrator, presiding arbitrator or sole arbitrator after the appointment has been confirmed by the Chairman of the CIETAC in accordance with the law.

Article 22 Three Arbitrators

1. Within fifteen (15) days from the date of receipt of the Notice of Arbitration, the Claimant and the Respondent shall each appoint one arbitrator or entrust the Chairman of the CIETAC to make such appointment. Where a party fails to appoint or to entrust the Chairman of the CIETAC to appoint an arbitrator within the specified time period, the arbitrator shall be appointed by the Chairman of the CIETAC.

2. Within fifteen (15) days from the date of the Respondent’s receipt of the Notice of Arbitration, the presiding arbitrator shall be jointly appointed by the parties or appointed by the Chairman of the CIETAC upon the parties’ joint authorization.

3. The parties may each recommend one to three arbitrators as candidates for the presiding arbitrator and shall submit the list of recommended candidates to the CIETAC within the time period specified in paragraph 2. Where there is only one common candidate in the lists, such candidate shall be the presiding arbitrator jointly appointed by the parties. Where there are more than one common candidate in the lists, the Chairman of the CIETAC shall choose a presiding arbitrator from among the common candidates based on the specific nature and circumstances of the case, who shall act as the presiding arbitrator jointly appointed by the parties. Where there is no common candidate in the lists, the presiding arbitrator shall be appointed by the Chairman of the CIETAC from outside of the lists of recommended candidates.

4. Where the parties have failed to jointly appoint the presiding arbitrator according to the above provisions, the presiding arbitrator shall be appointed by the Chairman of the CIETAC.

Article 23 Sole Arbitrator

Where the arbitral tribunal is composed of one arbitrator, the sole arbitrator shall be appointed pursuant to the procedure stipulated in Paragraphs 2, 3 and 4 of Article 22.

Article 24 Multi-Party

1. Where there are two or more Claimants and/or Respondents in an arbitration case, the Claimant side and/or the Respondent side each shall, through consultation, jointly appoint or jointly entrust the Chairman of the CIETAC to appoint one arbitrator from the CIETAC’s Panel of Arbitrators.

2. Where the Claimant side and/or the Respondent side fail to jointly appoint or jointly entrust the Chairman of the CIETAC to appoint one arbitrator within fifteen (15) days from the date of receipt of the Notice of Arbitration, the arbitrator shall be appointed by the Chairman of the CIETAC.

3. The presiding arbitrator or the sole arbitrator shall be appointed in accordance with the procedure stipulated in Paragraphs 2, 3 and 4 of Article 22. When appointing the presiding arbitrator or the sole arbitrator pursuant to Paragraph 3 of Article 22, the Claimant side and/or the Respondent side each shall, through consultation, submit a list of their jointly agreed candidates to the CIETAC.

Article 25 Disclosure

1. An arbitrator appointed by the parties or by the Chairman of the CIETAC shall sign a Declaration and disclose to the CIETAC in writing any facts or circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence.

2. If circumstances that need to be disclosed arise during the arbitral proceedings, the arbitrator shall promptly disclose such circumstances in writing to the CIETAC.

3. The CIETAC shall communicate the Declaration and/or the disclosure of the arbitrator to the parties.

Article 26 Challenge of Arbitrators

1. Upon receipt of the Declaration and/or written disclosure of an arbitrator communicated by the CIETAC, a party who intends to challenge the arbitrator on the grounds of the facts or circumstances disclosed by the arbitrator shall forward the challenge in writing to the CIETAC within ten (10) days from the date of such receipt. If a party fails to file a challenge within the above time limit, it shall not challenge an arbitrator later on the basis of matters disclosed by the arbitrator .

2. A party who has justifiable doubts as to the impartiality or independence of an appointed arbitrator may make a request in writing to the CIETAC for that arbitrator’s withdrawal. In the request, the facts and reasons on which the request is based shall be stated with supporting evidence.

3. A party may challenge an arbitrator in writing within fifteen (15) days from the date of its receipt of the Notice of Formation of the Arbitral Tribunal. Where a party becomes aware of the reasons for a challenge after the said receipt, the party may challenge the arbitrator in writing within fifteen (15) days after such reasons become known, but no later than the conclusion of the last oral hearing.

4. The CIETAC shall promptly communicate the challenge to the other party, the arbitrator being challenged and the other members of the arbitral tribunal.

5. Where an arbitrator is challenged by one party and the other party agrees to the challenge, or the arbitrator being challenged withdraws from his/her office, such arbitrator shall no longer be on the arbitral tribunal. Neither case implies that the challenge made by the party is sustainable.

6. In circumstances other than those specified in Paragraph 5, the Chairman of the CIETAC shall make a final decision on the challenge with or without stating the reasons therefor.

7. An arbitrator who has been challenged shall continue to fulfill the functions of arbitrator until a decision on the challenge has been made by the Chairman of the CIETAC.

Article 27 Replacement of Arbitrator

1. In the event that an arbitrator is prevented de jure or de facto from fulfilling his/her functions, or he/she fails to fulfill his/her functions in accordance with the requirements of these Rules or within the time period specified in these Rules, the Chairman of the CIETAC shall have the power to decide whether the arbitrator shall be replaced. The arbitrator may also withdraw form his/her office.

2. In the event that an arbitrator is unable to fulfill his/her functions owing to his/her demise, removal from the CIETAC’s Panel of Arbitrators, withdrawal, resignation or any other reasons, a substitute arbitrator shall be appointed within a time period specified by the CIETAC pursuant to the procedure applied to the appointment of the arbitrator being replaced.

3. After the replacement of the arbitrator, the arbitral tribunal shall decide whether the whole or a part of the previous proceedings of the case shall be repeated.

4. The Chairman of the CIETAC shall make a final decision on whether an arbitrator should be replaced or not with or without stating the reasons therefor.

Article 28 Majority to Continue Arbitration

In the event that, after the conclusion of the last oral hearing, an arbitrator on a three-member arbitral tribunal is unable to participate in the deliberation and/or render the award owing to his/her demise or removal from the CIETAC’s Panel of Arbitrators, the other two arbitrators may request the Chairman of the CIETAC to replace the arbitrator pursuant to Article 27. After consulting with the parties and upon the approval of the Chairman of the CIETAC, the other two arbitrators may continue the arbitration and make decisions, rulings or the award. The Secretariat of the CIETAC shall notify the parties of the above circumstances.

Section 3 Hearing

Article 29 Conduct of Hearing

1. The arbitral tribunal shall examine the case in any way that it deems appropriate unless otherwise agreed by the parties. Under any circumstance, the arbitral tribunal shall act impartially and fairly and shall afford reasonable opportunities to all parties for presentations and debates.
2. The arbitral tribunal shall hold oral hearings when examining the case. However, oral hearings may be omitted and the case shall be examined on the basis of documents only if the parties so request or agree and the arbitral tribunal also deems that oral hearings are unnecessary.
3. Unless otherwise agreed by the parties, the arbitral tribunal may adopt an inquisitorial or adversarial approach when examining the case, having regard to the circumstances of the case.
4. The arbitral tribunal may hold deliberation at any place or in any manner that it considers appropriate.
5. The arbitral tribunal may, if it considers it necessary, issue procedural directions and lists of questions, hold pre-hearing meetings and preliminary hearings, and produce terms of reference, etc., unless otherwise agreed by the parties.

Article 30 Notice of Oral Hearings

1. The date of the first oral hearing shall be fixed by the arbitral tribunal and notified to the parties by the Secretariat of the CIETAC at least twenty (20) days in advance of the oral hearing date. A party having justified reasons may request a postponement of the oral hearing. However, such request must be communicated to the arbitral tribunal at least ten (10) days in advance of the oral hearing date. The arbitral tribunal shall decide whether to postpone the oral hearing or not.
2. A notice of oral hearing subsequent to the first oral hearing and a notice of a postponed oral hearing shall not be subject to the twenty (20)-day time limit provided for in the foregoing paragraph.

Article 31 Place of Arbitration

1. Where the parties have agreed on the place of arbitration in writing, the parties’ agreement shall prevail.
2. Where the parties have not agreed on the place of arbitration, the place of arbitration shall be the domicile of the CIETAC or its Sub-Commission.
3. The arbitral award shall be deemed as being made at the place of arbitration.

Article 32 Place of Oral Hearing

1. Where the parties have agreed on the place of oral hearings, the case shall be heard at that agreed place except for circumstances stipulated in Paragraph 3 of Article 69 of these Rules.
2. Unless the parties agree otherwise, a case accepted by the CIETAC shall be heard in Beijing, or if the arbitral tribunal considers it necessary, at other places with the approval of the Secretary-General of the CIETAC. A case accepted by a Sub-Commission of the CIETAC shall be heard at the place where the Sub-Commission is located, or if the arbitral tribunal considers it necessary, at other places with the approval of the Secretary-General of the Sub-Commission.

Article 33 Confidentiality

1. Hearings shall be held in camera. Where both parties request an open hearing, the arbitral tribunal shall make a decision.
2. For cases heard in camera, the parties, their representatives, witnesses, interpreters, arbitrators, experts consulted by the arbitral tribunal and appraisers appointed by the arbitral tribunal and the relevant staff-members of the Secretariat of the CIETAC shall not disclose to any outsiders any substantive or procedural matters of the case.

Article 34 Default

1. 1. If the Claimant fails to appear at an oral hearing without showing sufficient cause for such failure, or withdraws from an on-going oral hearing without the permission of the arbitral tribunal, the Claimant may be deemed to have withdrawn its Request for Arbitration. In such a case, if the Respondent has filed a counterclaim, the arbitral tribunal shall proceed with the hearing of the counterclaim and make a default award.
2. If the Respondent fails to appear at an oral hearing without showing sufficient cause for such failure, or withdraws from an on-going oral hearing without the permission of the arbitral tribunal, the arbitral tribunal may proceed with the arbitration and make a default award. In such a case, if the Respondent has filed a counterclaim, the Respondent may be deemed to have withdrawn its counterclaim.

Article 35 Record of Oral Hearing

1. During the oral hearing, the arbitral tribunal may arrange a stenographic and/or audio-visual record. The arbitral tribunal may, when it considers it necessary, take minutes stating the main points of the oral hearing and request the parties and/or their representatives, witnesses and/or other persons involved to sign and/or affix their seals to the minutes.
2. The stenographic and/or audio-visual record of the oral hearing shall be available for the use and reference by the arbitral tribunal.

Article 36 Evidence

1. Each party shall have the burden of proving the facts relied on to support its claim, defense or counterclaim.
2. The arbitral tribunal may specify a time period for the parties to produce evidence and the parties shall produce evidence within the specified time period. The arbitral tribunal may refuse to admit any evidence produced beyond the period. If a party has difficulties to produce evidence within the specified time period, it may apply for an extension before the expiration of the period. The arbitral tribunal shall decide whether or not to extend the time period.
3. If a party having the burden of proof fails to produce evidence within the specified time period, or the produced evidence is not sufficient to support its claim or counterclaim, it shall bear the consequences thereof.

Article 37 Investigation by the Arbitral Tribunal

1. The arbitral tribunal may, on its own initiative, undertake investigations and collect evidence as it considers necessary.
2. When investigating and collecting evidence by itself, the arbitral tribunal shall promptly notify the parties to be present at such investigation if it considers it necessary. In the event that one or both parties fail to be present, the investigation and collection shall proceed without being affected.
3. The arbitral tribunal shall, through the Secretariat of the CIETAC, transmit the evidence collected by itself to the parties and afford them an opportunity to comment.

Article 38 Expert's Report and Appraiser's Report

1. The arbitral tribunal may consult or appoint experts and appraisers for clarification on specific issues of a case. Such an expert or appraiser may either be a Chinese or foreign organization or citizen.
2. The arbitral tribunal has the power to request the parties to deliver or produce to the expert or appraiser any relevant materials, documents, or property and goods for checking, inspection and/or appraisal. The parties shall be obliged to comply.
3. Copies of the expert's report and the appraiser's report shall be communicated to the parties, who shall be given an opportunity to comment on the report. At the request of either party and with the approval of the arbitral tribunal, the expert and appraiser may be heard at an oral hearing where, if considered necessary and appropriate by the arbitral tribunal, they may give explanations on their reports.

Article 39 Examination of Evidence

1. All evidence submitted by a party shall be filed with the Secretariat of the CIETAC for transmission to the other party.
2. Where a case is examined by way of an oral hearing, the evidence shall be exhibited at the hearing and examined by the parties.
3. In the event that evidence is submitted after the hearing and the arbitral tribunal decides to admit the evidence without holding further hearings, the arbitral tribunal may require the parties to submit their opinions thereon in writing within a specified time period.

Article 40 Combination of Conciliation with Arbitration

1. Where the parties have reached a settlement agreement by themselves through negotiation or conciliation without involving the CIETAC, either party may, based on an arbitration agreement concluded between them that provides for arbitration by the CIETAC and the settlement agreement, request the CIETAC to constitute an arbitral tribunal to render an arbitral award in accordance with the terms of the settlement agreement. Unless the parties agree otherwise, the Chairman of the CIETAC shall appoint a sole arbitrator to form such arbitral tribunal, which shall examine the case in the procedure it considers appropriate and render an award in due course. The specific procedure and the time limit for rendering the award shall not be subject to other provisions of these Rules.
2. Where both parties have the desire for conciliation or one party so desires and the other party agrees when approached by the arbitral tribunal, the arbitral tribunal may conciliate the case during the course of the arbitration proceedings.
3. The arbitral tribunal may conciliate the case in the manner it considers appropriate.
4. The arbitral tribunal shall terminate the conciliation and continue the arbitration proceedings if one of the parties requests a termination of the conciliation or if the arbitral tribunal believes that further efforts to conciliate will be futile.
5. A settlement agreement reached between the parties during the course of conciliation by the arbitral tribunal but without the involvement of the arbitral tribunal shall be deemed as one reached through the conciliation by the arbitral tribunal.
6. Where settlement is reached through conciliation by the arbitral tribunal, the parties shall sign a written settlement agreement. Unless otherwise agreed by the parties, the arbitral tribunal will close the case and render an arbitral award in accordance with the terms of the settlement agreement.
7. Where conciliation fails, the arbitral tribunal shall proceed with the arbitration and render an arbitral award.
8. Where conciliation fails, any opinion, view or statement and any proposal or proposition expressing acceptance or opposition by either party or by the arbitral tribunal in the process of conciliation shall not be invoked as grounds for any claim, defense or counterclaim in the subsequent arbitration proceedings, judicial proceedings or any other proceedings.

Article 41 Withdrawal and Dismissal

1. A party may file a request with the CIETAC to withdraw its claim or counterclaim in its entirety. In the event that the Claimant withdraws its claim in its entirety, the arbitral tribunal shall proceed with its examination of the counterclaim and render an arbitral award thereon. In the event that the Respondent withdraws its counterclaim in its entirety, the arbitral tribunal shall proceed with the examination of the claim and render an arbitral award thereon.
2. Where a case is to be dismissed before the formation of the arbitral tribunal, the decision shall be made by the Secretary-General of the CIETAC. Where the case is to be dismissed after the formation of the arbitral tribunal, the decision shall be made by the arbitral tribunal.
3. Where a party files with the CIETAC a request for arbitration for a claim which has been withdrawn, the CIETAC shall decide whether or not to accept the request anew.