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Financial Disputes Arbitration Rules of the China International Economic and Trade Arbitration Commision - CIETAC (2003)
(Adopted on
4 April 2003 by the China Council for the Promotion of International Trade / China
Chamber of International Commerce, Effective as from 8 May 2003)
Chapter I
General Provisions
Article
1
These Rules
are formulated for the purpose of impartial and prompt resolution of disputes
arising from financial transactions between parties.
Article
2
The China
International Economic and Trade Arbitration Commission (also known as the Arbitration
Court of China Chamber of International Commerce and hereinafter referred to as
the “Arbitration Commission”) offers, by means of arbitration, independent and
impartial resolution of disputes arising from, or in connection with, any and
all financial transactions between parties.
The term “financial
transactions” shall refer to transactions arising between financial
institutions inter se, or arising between financial institutions and other
natural or legal persons in the currency, capital, foreign exchange, gold and
insurance markets that relate to financing in both domestic and foreign
currencies, and the assignment and sale of any and all types of financial
instruments and documents denominated in both domestic and foreign currencies,
including but not limited to:
1. Loans;
2. Deposit
certificates;
3. Guarantees;
4. Letters
of credit;
5. Negotiable
instruments;
6. Fund
transactions and fund trusts;
7. Bonds;
8. Collection
and remittance of foreign currencies;
9. Factoring;
and
10. Reimbursement
agreements between banks.
Article
3
These Rules
shall apply to any financial dispute accepted by the Arbitration Commission for
arbitration where the parties have agreed upon the application thereof. Failing
such agreement, the Arbitration Rules of the Arbitration Commission shall
apply.
The
Arbitration Commission shall make a ruling on objections with regard to whether
the dispute between the parties arises from, or is in connection with, a
financial transaction, or whether these Rules should be applied to the dispute
between the parties.
Article
4
Where the
parties have agreed upon the arbitration procedure otherwise, the said agreement
of the parties shall prevail subject to the consent of the Arbitration
Commission.
Article
5
The
Arbitration Commission has the power to rule on the existence and validity of
an arbitration agreement and on the jurisdiction over the arbitration
case. Where the validity of the
arbitration agreement is challenged and one party requests the Arbitration
Commission to make a decision thereon, while the other party applies to the
People’s Court for a ruling, such a ruling shall be given by the People’s
Court.
Any
challenge to the arbitration agreement or to the jurisdiction over the
arbitration case shall not affect the progress of the arbitration proceedings.
Article
6
The parties
may appoint arbitrators from amongst the Panel of Financial Arbitrators of the
Arbitration Commission, or from amongst such Panel of Arbitrators as may be
designated by the Arbitration Commission.
Where the
appointment of an arbitrator is to be made by the Chairman of the Arbitration
Commission, the Chairman may, unless otherwise agreed upon by the parties,
appoint such arbitrator from amongst the Panel of Financial Arbitrators of the
Arbitration Commission or from other Panel of Arbitrators.
Article
7
An
arbitrator shall be required to sign a Statement of Independence. The
appointment of each arbitrator by either party shall be subject to confirmation
by the Arbitration Commission. The Arbitration Commission shall not give the
reasons for confirming or not confirming any such appointment.
Chapter II
Arbitration Proceedings
Article
8
Arbitration
proceedings shall commence from the date on which the Notice of Arbitration is
issued by the Secretariat of the Arbitration Commission.
Article
9
A Claimant
applying for arbitration shall:
(1) Submit
an Application for Arbitration in writing, which shall, inter alia, contain the
following information:
a. The name
and address of the Claimant and the Respondent, and means of communication with
each of the parties, including the zip code, telephone, telex, facsimile, cable
numbers, and e-mail address etc;
b. The
arbitration agreement relied upon by the Claimant;
c. The
facts and main issues of the case; and
d. The
claim(s) and the facts and reasons upon which the claim(s) is/are based.
The
Application for Arbitration shall be signed by and/or affixed with the seal of
the Claimant and/or his authorized agent.
(2) Attach
to the Application for Arbitration relevant evidential documents that support
the facts upon which the claim(s) is/are based.
(3) Pay an
arbitration fee in advance to the Arbitration Commission in accordance with the
Arbitration Fee Schedule for Financial Disputes formulated by the Arbitration
Commission.
Article
10
Where the
Secretariat of the Arbitration Commission finds that an application satisfies
the requirements for arbitration, it shall notify the parties in writing of its
acceptance of the Application for Arbitration within 5 days from the date of
receipt of the Application for Arbitration. Should the Secretariat of the
Arbitration Commission find that the Application for Arbitration does not
satisfy the requirements for arbitration, it shall notify the parties in
writing of its rejection of the application and the reasons therefor.
Article
11
Together
with the Notice of Arbitration for the acceptance of the Application for
Arbitration, the Secretariat of the Arbitration Commission shall furnish to the
Claimant these Rules, the Arbitration Rules of the Arbitration Commission, the
Panel of Financial Arbitrators and such other Panel of Arbitrators of the
Arbitration Commission as may be designated.
Together
with the Notice of Arbitration for the acceptance of the Application for
Arbitration, the Secretariat of the Arbitration Commission shall furnish to the
Respondent a copy of the Claimant’s Application for Arbitration and the
documents annexed thereto, these Rules, the Arbitration Rules of the
Arbitration Commission, the Panel of Financial Arbitrators and such other Panel
of Arbitrators of the Arbitration Commission as may be designated.
Article
12
The
arbitral tribunal shall be composed of a sole or three arbitrators. Where the
parties have not agreed upon the number of arbitrators, the Chairman of the
Arbitration Commission shall decide whether the arbitral tribunal shall be
composed of a sole or three arbitrators.
Unless
otherwise agreed upon by the parties, where the arbitral tribunal is composed
of a sole arbitrator, the Claimant and the Respondent shall, within 7 working
days from the date of receipt of the Notice of Arbitration by the party who
last receives it, jointly appoint a sole arbitrator or entrust the Chairman of
the Arbitration Commission to effect such appointment.
Unless
otherwise agreed upon by the parties, where the arbitral tribunal is composed
of three arbitrators, the Claimant and the Respondent shall, within 7 working
days from the date of receipt of the Notice of Arbitration, respectively
appoint an arbitrator or entrust the Chairman of the Arbitration Commission to
effect such appointment, and shall, within 7 working days from the date of
receipt of the Notice of Arbitration by the party who last receives it, jointly
appoint a third arbitrator, or alternatively, shall entrust the Chairman of the
Arbitration Commission to effect such appointment. The third arbitrator shall
be the presiding arbitrator.
Where there
are two or more Claimants and/or Respondents in a case, the Claimants’ side,
and/or the Respondents’ side each shall, through consultation, appoint an
arbitrator, or alternatively, entrust the Chairman of the Arbitration Commission
to effect such appointment.
Unless
otherwise agreed upon by the parties, where a party fails to appoint an
arbitrator or fails to entrust the Chairman of the Arbitration Commission to
effect such appointment in due course, such arbitrator shall be appointed by
the Chairman of the Arbitration Commission.
Article
13
Unless
otherwise agreed upon by the parties, the Respondent shall, within 15 working
days from the date of receipt of the Notice of Arbitration, submit its written
Statement of Defense and the relevant evidential documents to the Secretariat
of the Arbitration Commission.
Unless
otherwise agreed upon by the parties, the Respondent shall, within the
foregoing time limit, file its Counterclaim(s) and relevant supporting documents
in writing, if any, with the Secretariat of the Arbitration Commission.
Article
14
Unless
otherwise agreed upon by the parties, the Claimant shall, within 15 working
days from the date of receipt of the Counterclaim(s) of the Respondent, file
its Answer in writing, if any, with the Secretariat of the Arbitration
Commission.
Article
15
The
arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate. The arbitral tribunal shall treat the parties with equality and
give each party a reasonable opportunity of presenting his case.
Article
16
During the
arbitral proceedings, the arbitral tribunal may issue procedural orders,
questionnaires, and hold pre-hearing conferences or preliminary hearings.
Article
17
Where a
time limit for presenting evidence has been agreed upon by the parties or has
been set by the arbitral tribunal, the parties shall present their evidence to
the arbitral tribunal within such time limit.
Where no
such time limit for presenting evidence is agreed upon by the parties or set by
the arbitral tribunal, the parties shall file all written statements and
relevant evidential documents with the Secretariat of the Arbitration
Commission not less than 3 working days prior to the date of the first oral
hearing.
Unless
otherwise agreed upon by the parties or determined by the arbitral tribunal, the arbitral tribunal may refuse
acceptance of any written submission or evidential document submitted by any
party after the expiration of the time limit for presenting evidence.
Article
18
Subject to
any contrary agreement by the parties, the arbitral tribunal shall decide
whether or not to hold oral hearings. If an oral hearing is to be held, the
Secretariat of the Arbitration Commission shall serve a Notice of Oral Hearing
on each party at least 10 working days prior to the scheduled hearing date.
Article
19
With the
consent of the Secretary-General of the Arbitration Commission, the time limit
specified in Article 12 may be extended.
With the
consent of the arbitral tribunal, the time limits respectively specified in
Articles 13, 14 and 18 may be extended.
Article
20
The parties
may agree upon the place of arbitration. Failing such agreement, the seat of
the Arbitration Commission or its Sub-Commissions shall be deemed to be the
place of the arbitration.
Unless
otherwise agreed upon by the parties, the arbitral tribunal may hold oral
hearings or conduct other activities relating to the financial dispute between
the parties, at any place that it considers appropriate.
Chapter III
Award
Article
21
Subject to
mandatory rules of law, the parties to any case involving a foreign-related
element may agree upon the law to be applied to the merits of the dispute.
Failing such agreement, the arbitral tribunal shall apply the law that it
determines to be appropriate. In all cases, the arbitral tribunal shall take
into account the terms of the contract, the usages and standard practices of
the trade, and abide by the principles of fairness and reasonableness.
Article
22
Unless
otherwise agreed upon by the parties, the arbitral tribunal shall render an
arbitral award within 45 working days from the date on which the arbitral
tribunal is constituted.
At the
request of the arbitral tribunal, the Secretary-General of the Arbitration
Commission may extend the above time limit provided that he is satisfied that
the extension is both truly necessary and justifiable. Each such extension may not exceed 15
working days.
Article
23
Before
signing an award, the arbitrators shall submit it in draft form to the
Arbitration Commission. Without affecting the independence of the arbitrators
in rendering the award, the Arbitration Commission may draw the arbitrators’
attention to any matter pertaining to the form of the award.
Chapter IV
Miscellaneous
Article
24
All
documents, notifications or materials pertaining to the arbitration shall be
furnished by the Secretariat of the Arbitration Commission to the parties or
their arbitration agents in person, or via registered post, express mail,
telefax, telex, cable, e-mail or such other means as the Secretariat of the
Arbitration Commission considers appropriate.
Article
25
Unless
otherwise agreed upon by the parties or determined by the arbitral tribunal,
for the purposes of these Rules, the term “working day” shall mean a working
day at the seat of the Arbitration Commission.
Article
26
In the
event of any inconsistency between these Rules and the Arbitration Rules of the
Arbitration Commission, these Rules shall prevail.
In respect
of any matter not provided for in these Rules, the Arbitration Rules of the
Arbitration Commission shall apply.
Article
27
These Rules
shall apply uniformly to the Arbitration Commission and its Sub-Commissions.
Where arbitration proceedings are conducted before a Sub-Commission, the
functions and duties arising under these Rules to be performed by the Chairman,
the Secretariat and the Secretary-General of the Arbitration Commission shall
be performed respectively by the Vice-Chairman authorized by the Chairman of
the Arbitration Commission, the Secretariat and the Secretary-General of the
Sub-Commission.
Article
28
The power
to interpret these Rules is vested in the Arbitration Commission.
