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中国海事仲裁委员会仲裁规则(二)

2006-05-16 15:11   我要纠错 | 打印 | 收藏 | | |

  Article 38 The arbitration tribunal may consult an expert or appoint an appraiser for the clarification of special questions relating to the case. Such an expert or appraiser can be an organization or a citizen, Chinese or foreign.

  The arbitration tribunal has the power to order the parties and the parties are also obliged to submit or produce to the expert or appraiser any materials, documents, properties or goods related to the case for check-up, inspection and/or appraisal.

  Article 39 The expert's report and the appraiser's report shall be copied to the parties so that they may have the opportunity to give their opinions thereon. At the request of any party to the case and with the approval of the arbitration tribunal, the expert and appraiser may be present at the hearing and give explanations of their reports when the arbitration tribunal deems it necessary and appropriate.

  Article 40 The evidence submitted by the parties shall be examined and decided by the arbitration tribunal. The adoption of the expert's report and the appraiser's report shall be determined by the arbitration tribunal.

  Article 41 Should one of the parties fail to appear at the hearing, the arbitration tribunal may proceed with the hearing and make an award by default.

  Article 42 During the hearing, the arbitration tribunal may make a record in writing and/or by tape-recording. The arbitration tribunal may, when it deems it necessary, make a minute stating the main points of the hearing and ask the parties and/or their attorneys, witnesses and/or other persons involved to sign their names on it and/or affix their seals to it.

  The record in writing or by tape-recording is only for the use and reference of the arbitration tribunal.

  Article 43 If the parties to an arbitration case reach an amicable settlement agreement by themselves, they may either request the arbitration tribunal to make an award in accordance with the contents of their amicable settlement agreement to end the case or request a dismissal of the case. The Secretary-General of the Arbitration Commission shall decide on the request for a dismissal of the case if the request is made before the formation of the arbitration tribunal, and the arbitration tribunal shall decide if the request is put forward after the formation of the arbitration tribunal.

  If the party or the parties refer the dismissed case again to the Arbitration Commission for arbitration, the Chairman of the Arbitration Commission shall decide whether to accept the reference or not.

  Article 44 A party who knows or should have known that any provision or requirement of these Rules has not been complied with and yet proceeds with the arbitration proceedings without explicitly raising in writing his objection to non-compliance in a timely manner shall be deemed to have waived his right to object.

  Article 45 If both parties have a desire for conciliation or one party so desires and the other party agrees to it when consulted by the arbitration tribunal, the arbitration tribunal may conciliate the case under its cognizance in the process of arbitration.

  Article 46 The arbitration tribunal may conciliate cases in the manner it deems appropriate.

  Article 47 The arbitration tribunal shall terminate conciliation and continue the arbitration proceedings when one of the parties requests a termination of conciliation or when the arbitration tribunal believes that further efforts to conciliate will be futile.

  Article 48 If the parties have reached an amicable settlement outside the arbitration tribunal in the course of conciliation conducted by the arbitration tribunal, such settlement shall be deemed as one which has been reached through the arbitration tribunal's conciliation.

  Article 49 The parties shall sign a settlement agreement in writing when an amicable settlement is reached through conciliation conducted by the arbitration tribunal, and the arbitration tribunal shall end the case by making an arbitration award in accordance with the contents of the settlement agreement unless otherwise agreed by the parties.

  Article 50 Should conciliation fail, any statement, opinion, view or proposal which has been made, raised, put forward, acknowledged, accepted or rejected by either party or by the arbitration tribunal in the process of conciliation shall not be invoked as grounds for any claim, defense and/or counterclaim in the subsequent arbitration proceedings, judicial proceedings or any other proceedings.

  Section 4 Award

  Article 51 The arbitration tribunal shall render an arbitral award within 9 months as from the date on which the arbitration tribunal is formed. The Secretary General of the Arbitration Commission may extend this time limit at the request of the arbitration tribunal if the Secretary-General of the arbitration Commission considers that it is really necessary and the reasons for extension are truly justified.

  Article 52 The arbitration tribunal shall independently and impartially make its arbitral award on the basis of the facts, in accordance with the law and the terms of the contracts, with reference to international practices and in compliance with the principle of fairness and reasonableness.

  Article 53 Where a case is heard by an arbitration tribunal composed of three arbitrators, the arbitral award shall be decided by the majority of the arbitrators and the minority opinion may be written in the record and docketed into the file.

  When the arbitration tribunal cannot attain a majority opinion, the arbitral award shall be decided in accordance with the presiding arbitrator's opinion.

  Article 54 The arbitration tribunal shall state in the arbitral award the claims, the facts of the dispute, the reasons on which the arbitral award is based, the result of the arbitral award, the allocation of the arbitration costs, the date on which and the place at which the arbitral award is made. The facts of the dispute and the reasons on which the arbitral award is based may not be stated in the arbitral award if the parties have agreed not to state them in the arbitral award, or the arbitral award is made in accordance with the contents of the settlement agreement reached between the parties.

  Article 55 Unless the arbitral award is made in accordance with the opinion of the presiding arbitrator or the sole arbitrator, the arbitral award shall be signed by all the arbitrators or the majority arbitrators sitting on the arbitration tribunal. An arbitrator who has a dissenting opinion may sign or not sign his name on the arbitral award.

  The arbitrators shall submit their draft arbitral award to the Arbitration Commission before signing the award. The Arbitration Commission may remind the arbitrator of any issue related to the form of the arbitral award on condition that the arbitrator's independence of decision is not affected.

  The Arbitration Commission's stamp shall be affixed to the arbitral award. The date on which the arbitral award is made is the date on which the arbitral award comes into legal effect.

  Article 56 The arbitration tribunal may, if it deems it necessary or the parties so request and the arbitration tribunal agrees, make an interlocutory award or partial award on any issue of the case at any time in the course of arbitration before the final award is made. Either party's failure to perform the interlocutory award does not affect the continuation of the arbitration proceedings and the making of the final award by the arbitration tribunal.

  Article 57 The arbitration tribunal has the power to determine in the arbitral award the arbitration fee and other expenses to be eventually paid by the party or the parties to the Arbitration Commission.

  Article 58 The arbitration tribunal has the power to decide in the arbitral award that the losing party shall pay the winning party as compensation a proportion of the expenses reasonably incurred by the winning party in dealing with the case. The amount of such compensation shall not in any case exceed 10% of the total amount awarded to the winning party.

  Article 59 The arbitral award is final and binding upon both disputing parties. Neither party may bring a suit before a law court or make a request to any other organization for revising the arbitral award.

  Article 60 Either party may request in writing that a correction be made to the writing, typing, calculating and similar errors contained in the arbitral award within 30 days from the date of receipt of the arbitral award; if there is really an error in the arbitral award, the arbitration tribunal shall make a correction in writing within 30 days form the date on receipt of the written request for correction, and the arbitration tribunal may by itself make a correction in writing within 30 days from the date on which the arbitral award is issued. The correction in writing forms a part of the arbitral award.

  Article 61 If anything that should be awarded has been omitted in the arbitral award, either of the parties may make a request in writing to the arbitration tribunal for an additional award within 30 days from the date on which the arbitral award is received.

  If something which should be awarded is really omitted, the arbitration tribunal shall make an additional award within 30 days from the date of receipt of the request in writing for an additional award. The arbitration tribunal may by itself make an additional award within 30 days from the date on which the arbitral award is issued. The additional award forms a part of the arbitral award which has been previously issued.

  Article 62 The parties must automatically execute the arbitral award within the time limit specified in the arbitral award. If no time limit is specified in the arbitral award, the parties shall carry out the arbitral award immediately.

  In case one party fails to execute the arbitral award, the other party may apply to the Chinese court for enforcement of the arbitral award pursuant to Chinese law or apply to the competent foreign court for enforcement of the arbitral award according to the 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards or other international treaties that China has concluded or participated in.

  Chapter III Summary Procedure

  Article 63 Unless otherwise agreed by the parties, this Summary Procedure shall apply to any case in dispute where the amount of the claim totals not more than RMB 500, 000 yuan, and to any case in dispute where the amount of the claim totals more than RMB 500, 000 yuan provided that one party applies for arbitration under this Summary Procedure and the other party agrees in writing.

  Article 64 When an application for arbitration is submitted to the Arbitration Commission by one of the parties and the application is accepted by the Arbitration Commission after examination and the Summary Procedure is applicable, the secretariat of the Arbitration Commission shall immediately serve a notice of Arbitration to each of the parties. Unless both parties have jointly appointed one sole arbitrator from among the Panel of Arbitrators of the Arbitration Commission, they shall jointly appoint or jointly entrust the Chairman of the Arbitration Commission to appoint one sole arbitrator within 15 days from the date on which the Notice of Arbitration is received by the Respondent. Should the parties fail to make such appointment or entrustment, the Chairman of the Arbitration Commission shall immediately appoint one sole arbitrator to form an arbitration tribunal to hear the case.

  Article 65 The Respondent shall, within 30 days from the date of receipt of the Notice of Arbitration, submit his defense and relevant documentary evidence to the secretariat of the Arbitration Commission; a counterclaim, if any, shall be lodged together with documentary evidence within the said time limit.

  Article 66 The arbitration tribunal may hear the case in the way it deems appropriate. The arbitration tribunal has discretion to hear the case only on the basis of the written materials and evidence submitted by the parties or to hold an oral hearing as well.

  Article 67 The parties must hand in written materials and evidence needed for the arbitration in compliance with the requirements of the arbitration tribunal within the time limit given by the arbitration tribunal.

  Article 68 For a case which needs an oral hearing, the secretariat of the Arbitration Commission shall, after the arbitration tribunal has fixed a date for hearing, inform the parties of the date of the hearing 15 days before the date of the hearing.

  Article 69 If the arbitration tribunal decides to hear the case orally, only one oral hearing shall be held. However, the arbitration tribunal may hold two oral hearings if really necessary.

  Article 70 Should one of the parties fail to act in compliance with this Summary Procedure during summary proceedings, such failure shall not affect the arbitration tribunal's conduct of the proceedings and the arbitration tribunal's power to render an arbitral award.

  Article 71 The conduct of the proceedings shall not be affected by any amendment of the claim or by the lodging of a counterclaim.

  Article 72 Where a case is heard orally, the arbitration tribunal shall make an arbitral award within 30 days from the date of the oral hearing if one hearing is to be held, or from the date of the second oral hearing if two oral hearings are to be held. Where a case is examined on the basis of documents only, the arbitration tribunal shall render an arbitral award within 90 days from the date on which the arbitration tribunal is formed. The Secretary-General of the Arbitration Commission may extend the said time limit if such extension is necessary and justifiable.

  Article 73 For matters not covered in this Chapter, the relevant provisions in the other Chapters of these Rules shall apply.

  Chapter IV Supplementary Provisions

  Article 74 The Chinese language is the official language of the Arbitration Commission. If the parties have agreed otherwise, their agreement shall prevail. At the hearing, if the parties or their attorneys or witnesses require language interpretation, the secretariat of the Arbitration Commission may provide an interpreter for them or the parties may bring with them their own interpreter.

  The arbitration tribunal and/or the secretariat of the Arbitration Commission may, if it deems it necessary, request the parties to hand in corresponding translation copies in Chinese language or other languages of the documents and evidential materials submitted by the parties.

  Article 75 All the arbitration documents, notices and materials may be sent to the parties and/or their attorneys in person, or by registered letter or express airmail, telefax, telex, cable or by any other means which are deemed proper by the secretariat of the Arbitration Commission.

  Article 76 Any written communication to the parties is deemed to have been properly served if it is delivered to the addressee or delivered at his place of business, habitual residence or mailing address; or if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been served if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.

  Article 77 Apart form charging arbitration fees from the parties according to the arbitration Fee Schedule of the Arbitration Commission, the Arbitration Commission may collect from the parties other extra, reasonable and actual expenses including arbitrators' special remuneration and their travel and boarding expenses for dealing with the case and the fees and expenses for experts, appraisers and interpreters appointed by the arbitration tribunal, etc.

  If a case is withdrawn after the parties have reached between themselves an amicable settlement, the Arbitration Commission may charge a certain amount of fees from the parties in consideration of the quantity of work and the amount of the actual expenses incurred by the Arbitration Commission.

  Article 78 Where an arbitration agreement or an arbitration clause contained in the contract provides for arbitration to be conducted by China Maritime Arbitration Commission or by its former named Maritime Arbitration Commission of the China Council for the Promotion of International Trade, the parties shall be deemed to have unanimously agreed that the arbitration shall be conducted by China Maritime Arbitration Commission .

  Article 79 These Rules shall come into force as from October 1, 1995. For cases which have been taken cognizance of by the Arbitration Commission before the date on which these Rules become effective, the Rules of Arbitration effective on the date when the cases were taken cognizance of shall apply.

  However, these Rules shall be applied if the parties so agree.

  Article 80 The power to interpret these Rules is vested in the Arbitration Commission.

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