(Revised and adopted at the First Meeting of the Fifth Session of the Beijing Arbitration Commission on September 20, 2007. Effective as from April 1, 2008)
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 duties and obligations stipulated 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 appointed as the secretary of an Arbitral Tribunal to assist with case management, including administration of procedural matters.
Article 2: Application of the Rules
(1) Where parties to a dispute provide for arbitration of the dispute by the BAC, these 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 Arbitration seat and be enforceable.
(2) Where the parties agree to apply the BAC rules, but do not choose a specific arbitration institution, they shall be deemed to agree to provide their disputes to the BAC.
Article 3: Waiver of Right to Object
A party who knows or should have known that any provision of these Rules or any term of the arbitration agreement has not been complied with, but nevertheless participates in the arbitration 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 in connection with the legal relationship between the parties. An arbitration agreement includes an arbitration clause in a contract or any other written agreement to arbitrate.
(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.
Article 5: Separability of Arbitration Agreement
An arbitration agreement shall be independent of and separate from the principal contract in which it is contained. The validity of an arbitration agreement shall not be affected by the modification, rescission, termination, invalidity, expiry, non-effectiveness, revocation, or non-establishment of the principal contract.
Article 6: Objections to Validity of Arbitration Agreement
(1) A jurisdictional objection or an objection to the validity of an arbitration agreement shall be raised in writing before the first hearing. For a documents-only arbitration, the written objection shall be raised prior to the expiry of the time limit for the submission of the first defence.
(2) If a party has not raised any objections pursuant to the provisions of the preceding paragraph, it shall be deemed to have accepted that the arbitration agreement is valid and that the BAC has jurisdiction over the arbitration.
(3) If a party objects to the validity of an arbitration agreement, it may make an application to either the BAC or the competent Peoples Court for a decision on the issue. If one party makes an application to the BAC while the other party to the Peoples Court, then the objection shall be decided upon by the Peoples Court.
(4) The BAC or, if authorized by the BAC, the Arbitral Tribunal, shall have the power to rule on jurisdictional objections and objections to the validity of an arbitration agreement. The Arbitral Tribunal can deliver its decision in the form of either an interim award or a final award.
Chapter III: Application for Arbitration, Defence and Counterclaim
Article 7: Application for Arbitration
(1) A party applying for arbitration shall submit the following documents (collectively the Application for Arbitration):
(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;
(c) evidence and the source of those evidence (together with a list thereof), and the names and addresses of its witnesses; and
(d) proof of the Claimants identity.
(2) A party applying for arbitration shall deposit an advance on costs, calculated in accordance with the provisions of the Arbitration Fee Schedule. 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 on costs nor applied for deferment, it shall be deemed to have withdrawn its Application for Arbitration.
Article 8: Case Acceptance
(1) The BAC shall accept the Application for Arbitration within 5 days of its receipt if it finds that the requisite requirements for acceptance are met.
(2) The applicant shall rectify its Application for Arbitration if it does not fulfill the requirements stipulated by Article 7.
(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 BACs 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 these Rules, and the BACs 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 key points of its defence and the facts and grounds on which the defence is based;
(b) evidence and the source of the evidence (together with a list thereof), and the names and addresses of its witnesses; and
(c) proof of the Respondents identity.
(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 any partys failure to submit its Statement of Defence.
Article 11: Counterclaim
(1) Within 15 days of the receipt of the Request for Submission of Defence, the Respondent shall submit to the BAC its Counterclaim. 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) The provisions of Article 7 shall apply to the submission of the Counterclaim.
(3) 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.
(4) The provisions of Article 10 shall apply to the Claimants submission of its Statement of Defence to Counterclaim.
(5) Any other items concerning the counterclaim not being stipulated by these Rules shall refer to those of application for arbitration.
Article 12: Amendment to Claim or Counterclaim
An application to amend the Claim or Counterclaim shall be made in writing. The application shall be decided by the Arbitral Tribunal, or if the Arbitral Tribunal has not been constituted, by the BAC.
Article 13: Number of Copies of Documents to be Submitted
The Statement of Claim, the Statement of Defence, the 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 14: Preservation of Property
(1) A party may apply for an order for the preservation of property if the enforcement of any award that it may obtain subsequently is likely to be impossible or difficult, as a result of the conduct of the other party or other factors.
(2) If a party applies for an order for the preservation of property, the BAC shall submit the application to the competent Peoples Court of the place where the Respondent is domiciled or where the Respondents property is situated.
Article 15: Preservation of Evidence
(1) 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.
(2) If a party applies for an order for the preservation of evidence, the BAC shall submit the application to the competent Peoples Court of the place where the evidence is located.
Article 16: Representation
Where a party is represented by its authorized representatives, a power of attorney setting out the matters specifically entrusted and the scope of the authorized representatives authority should be submitted to the BAC.
Chapter IV: Composition of Arbitral Tribunal
Article 17: Panel of Arbitrators
Arbitrators shall be chosen by the parties from the Panel of Arbitrators maintained by the BAC.
Article 18: Appointment of Arbitrator
(1) Within 15 days of the receipt of the Notice of Arbitration, the parties shall nominate or entrust the Chairman to appoint their arbitrators from the BACs Panel of Arbitrators. If the parties fail to nominate the arbitrator in accordance with the aforementioned provisions, the arbitrator shall be appointed by the Chairman.
(2) Within 15 days of the receipt of the Notice of Arbitration, the parties shall jointly nominate or jointly entrust the Chairman to appoint the presiding arbitrator. The parties may each nominate 1 to 3 arbitrators as the candidates for the presiding arbitrator within the time limit in accordance with the aforementioned provisions. According to the application or agreement of parties, the BAC may also provide a list of 5 to 7 candidates for the presiding arbitrator from which the parties shall select 1 to 3 as candidates within the time limit fixed by paragraph 1 above. Where there is only one common candidate on either both parties list of nomination or both parties list of selection (the Candidate), such candidate shall be the presiding arbitrator jointly nominated by both parties. If there are two or more such candidates, the Chairman shall, taking into consideration the specific circumstances of the case, confirm one of them as the presiding arbitrator, who shall be regarded as being jointly nominated by the parties. If there are no such candidates, the Chairman shall appoint the presiding arbitrator from outside of the lists of nomination and lists of selection.
(3) If the parties fail to jointly nominate the presiding arbitrator in accordance with the aforementioned provisions, the presiding arbitrator shall be appointed by the Chairman.
(4) For a party comprising two or more persons or organizations, they should, through consultations, jointly nominate or jointly entrust the Chairman to appoint the arbitrator. If, within 15 days of the receipt by the last party of the notice of arbitration, they have not agreed on the joint nomination of the arbitrator or the joint authorization of the Chairman, the arbitrator shall be appointed by the Chairman.
(5) The party shall bear the burden of the arbitrators increased travel expense incurred necessarily by hearing the cases, if the party nominates the arbitrator living outside Beijing. If a party has not deposited the advance on expenses within the period stipulated by the BAC, it shall be deemed not to select the arbitrator. The Chairman could appoint the arbitrator for the party in accordance with these Rules.
(6) The party shall re-nominate another arbitrator within 5 days of its receipt of the notice of re-nomination, if the arbitrator refuses to accept the partys nomination or can not attend to hear the case, due to the illness or other factors that may affect performing an arbitrators duty.
Article 19: Notice of Constitution of Arbitral Tribunal
Within 5 days of the constitution of the Arbitral Tribunal, the BAC shall notify the parties accordingly. The secretary of the Arbitral Tribunal shall transmit the case file to the Arbitral Tribunal promptly thereafter.
Article 20: Disclosure by Arbitrator
(1) Upon accepting the appointment, the arbitrator shall sign a declaration of independence and impartiality, a copy of which shall be transmitted to each party.
(2) If an arbitrator is aware of circumstances relating to the parties or their authorized representatives, which might lead any one of the parties to doubt his independence or impartiality, the arbitrator shall disclose those circumstances in writing.
(3) Within 5 days of the receipt of such disclosure, the parties shall state in writing if they intend to challenge the arbitrator.
(4) The provisions of paragraphs 1, 2, 4, 5, and 6 of Article 21 shall apply to the challenge of an arbitrator on the basis of circumstances disclosed by the arbitrator.
(5) A party who fails to challenge an arbitrator within the period of time specified in paragraph 3 shall not be permitted to challenge the arbitrator based on the circumstances already disclosed by the arbitrator.
Article 21: Challenge of Arbitrator
(1) In the circumstances set out below, the arbitrator shall have an obligation to withdraw from his appointment and the parties shall have a right to challenge the arbitrator:
(a) the arbitrator is a party to the arbitration, or a close relative of any party or any partys authorized representatives;
(b) the arbitrator has personal interests in the dispute;
(c) the arbitrator has any other relationships with any party or its authorized representatives which may affect the arbitrators impartiality; or
(d) the arbitrator met with any party or its authorized representatives in private, or accepted from any party or its authorized representatives offers of entertainment or gift.
(2) A challenge shall be made in writing and accompanied by grounds of the challenge and supporting evidence.
(3) A challenge shall be raised before the first hearing. A challenge based on circumstances known after the first hearing can be raised prior to the close of the final hearing, except for the situation referred to in paragraph 3, Article 20.
(4) The secretary of the Arbitral Tribunal shall promptly transmit the notice of challenge to the other party and each member of the Arbitral Tribunal.
(5) When a party challenges an arbitrator and the other party agrees to the challenge, or the challenged arbitrator withdraws voluntarily upon being informed of the challenge, such arbitrator shall no longer participate in the arbitration. In neither case does it imply acceptance of the validity of the grounds for the challenge.
(6) The Chairman shall decide on the challenge, except in the situation referred to in paragraph 5. The decision of the Chairman shall be final.
(7) A party who, after being aware of the composition of the Arbitral Tribunal, appoints authorized representatives who may give rise to grounds for challenge of any arbitrator as set forth in this Chapter shall be deemed to have waived its right to challenge the arbitrator on those grounds. However, the other partys right to challenge the arbitrator shall not be affected. The additional costs resulting from any delay to the arbitral proceedings shall be borne by the party responsible for causing the grounds of challenge.
Article 22: Replacement of Arbitrator
(1) An arbitrator shall be replaced if the arbitrator becomes unable to conduct the arbitration as a result of death or illness, withdraws from the arbitration due to personal reasons, is ordered to withdraw from the arbitration by the Chairman or is requested by both parties to withdraw from the arbitration.
(2) An arbitrator may also be replaced on the BACs initiative if it decides that the arbitrator is prevented de jure or de facto from fulfilling functions as an arbitrator, or is not fulfilling necessary functions in accordance with the Rules.
(3) Before making any decision pursuant to the provisions of paragraph 2, the BAC shall give both parties and all members of the Arbitral Tribunal an opportunity to comment in writing.
(4) If the arbitrator to be replaced was nominated by a party, that party shall re-nominate another arbitrator within 5 days of its receipt of the notice of replacement. If the arbitrator to be replaced was appointed by the Chairman, the Chairman shall appoint another arbitrator and, within 5 days of such appointment, notify the parties of the appointment. After the nomination or appointment of a new arbitrator, the parties may request that prior arbitral proceedings be repeated, in which case the Arbitral Tribunal shall determine if such repetition is necessary. The Arbitral Tribunal may also on its own accord decide if prior arbitral proceedings shall be repeated. The time limit stipulated in Article 43, 52 and 59 shall be re-calculated from the date of the reconstitution of the Arbitral Tribunal, if the arbitral tribunal decides to repeat the arbitral proceedings.
Chapter V: Arbitral Proceedings
Article 23: Mode of Hearing
(1) The Arbitral Tribunal shall hold a hearing to examine the case.
(2) If the parties agree on documents-only arbitration, or if the Arbitral Tribunal considers a hearing to be unnecessary and has the consent of the parties, the Arbitral Tribunal may decide the case on the basis of documents submitted by the parties.
(3) Regardless of the mode of hearing adopted, the Arbitral Tribunal shall treat the parties fairly and impartially and give each party a reasonable opportunity to present and argue its case.
Article 24: Confidentiality
(1) An arbitration hearing shall be conducted in private, unless both parties agree otherwise. Arbitrations involving state secrets shall be conducted in private in any event.
(2) Where an arbitration is conducted in private, the parties, their authorized representatives, witnesses, arbitrators, experts consulted by the Arbitral Tribunal, appraisers appointed by the Arbitral Tribunal and staff of the BAC shall not disclose to third parties any matter concerning the arbitration, whether substantive or procedural.
Article 25: Place of the Arbitration
(1) The place of arbitration shall be the premises of the BAC, unless agreed upon by the parties;
(2) The arbitral award shall be deemed as rendering at the place of the arbitration.
Article 26: Place of Hearing
(1) Hearings shall be held at the BACs premises, or at other locations if the parties so agree.
(2) The resulting additional costs shall be borne by the parties, if the parties agree upon hearing at other locations. The parties shall deposit an advance in the additional costs upon the proportion stipulated in their agreement or decided by the Arbitral Tribunal within the period stipulated by the BAC, or otherwise the hearing shall be held at the BACs premises.
Article 27: Consolidation of Arbitrations
(1) The Arbitral Tribunal may, on the application of any party and with the approval of all other parties concerned, order the consolidation of two or more related arbitrations or arbitrations involving a similar subject matter.
(2) The provisions of the preceding paragraph shall not apply if the compositions of the Arbitral Tribunals are different.
Article 28: Notice of Hearing
(1) The Arbitral Tribunal shall notify the parties of the date of the first hearing at least 10 days before the hearing. The date may be brought forward with the agreement of the parties and the approval of the Arbitral Tribunal. A party may request a postponement of the date of the first hearing, at least 5 days before the hearing, if there are grounds justifying a postponement. The Arbitral Tribunal shall decide on the request.
(2) Notification of the date of any hearing subsequent to the first one is not subject to the 10-day requirement.
Article 29: Default of Appearance
(1) If the Claimant, having been duly notified in writing of the hearing, fails to appear at the hearing without any justifiable reason or withdraws from an ongoing hearing without the permission of the Arbitral Tribunal, the Claimant shall be deemed to have withdrawn its Application for Arbitration. Whereas it shall not affect the hearing on the Respondents Counterclaim.
(2) If the Respondent, having been duly notified in writing of the hearing, fails to appear at the hearing without any justifiable reason or withdraws from an ongoing hearing without the permission of the Arbitral Tribunal, the Arbitral Tribunal may proceed with the hearing. Upon such failure, the Respondent shall be deemed to have withdrawn its Counterclaim if there is any.
Article 30: Production of Evidence
(1) Each party shall bear the burden of proving the facts relied upon to support its case.
(2) The Arbitral Tribunal shall have the power to require the parties to produce their evidence within a specified period of time and the parties shall comply accordingly. The Arbitral Tribunal shall have the power to reject any evidence not produced within the specified period of time, unless the parties agree otherwise.
(3) If a party having the burden of proof fails to produce evidence within the specified period of time, or if the evidence produced is insufficient to discharge its burden of proof, it shall bear the consequences of such failure.
(4) Each party shall properly categorize and compile the evidence it produces, state briefly the source and contents of the evidence and what the evidence is sought to prove, affix its signature and seal on the evidence list, and indicate the date on which the evidence is produced.
(5) A reproduction, photograph, duplicate copy, and abridged version of a document or thing shall be deemed to be identical to the original document or thing unless the other party challenges its authenticity.
(6) Unless otherwise agreed by the parties, evidence and documentation in a foreign language should be accompanied by a Chinese translation. The Arbitral Tribunal may, if necessary, require the parties to provide a translation of the evidence and documentation into Chinese or other languages.
Article 31: Collection of Evidence by Arbitral Tribunal
(1) The Arbitral Tribunal may, if any party so requests or it considers necessary, undertake investigations or collect evidence. If the Arbitral Tribunal considers it necessary to require the parties presence when it is undertaking investigations or collecting evidence, it shall promptly notify the parties. The Arbitral Tribunal may proceed with the investigations or the collection of evidence even if one or both parties fail to appear after being notified.
(2) The parties may challenge the authenticity, admissibility and relevance of the evidence collected by the Arbitral Tribunal.
Article 32: Appraisal
(1) If any party requests an appraisal and the Arbitral Tribunal consents, or if the Arbitral Tribunal of its own motion considers it necessary, the Arbitral Tribunal may require the parties to jointly nominate an appraisal organization or appraisal expert within a period of time specified by the Arbitral Tribunal. If the parties fail to do so, the appraisal organization or appraisal expert shall be appointed by the Arbitral Tribunal.
(2) The parties shall deposit an advance in appraisal costs according to the agreement by the parties or the proportion confirmed by the Tribunal. The Tribunal has the power to decide not to carry out the appraisal, if the parties do not deposit an advance in costs.
(3)The Arbitral Tribunal shall have the power to require the parties to produce to the appraiser any document, material, property or any other article required for the appraisal and the parties shall comply accordingly.
The Arbitral Tribunal shall decide on any disagreement between any party and the appraiser as to whether the document, material, property or article required for the appraisal is relevant to the case.
(4) A copy of the appraisers report shall be sent by the Arbitral Tribunal to each party. The parties may submit their comments on the report.
(5) If the Arbitral Tribunal considers it necessary or if the parties so request, the Arbitral Tribunal shall notify the appraiser to attend the hearing. The parties may, with the permission of the Arbitral Tribunal, question the appraiser on issues of the report.
(6) The time limit stipulated in Article 43, 52, and 59 shall exclude any period of time taken to conduct an appraisal.
Article 33: Hearing-related Measures
If the Arbitral Tribunal considers it necessary, it may, prior to the hearing, authorize the presiding arbitrator to summon the parties to exchange their evidence and jointly draw up a list of the disputed issues and define the scope of the hearing. Prior to the hearing or at any stage during the hearing, the Arbitral Tribunal also may, if necessary, require the parties to produce evidence and to respond to questions.
Article 34: Examination and Authentication
(1) In the event of a hearing, evidence exchanged between the parties prior to the hearing shall be presented for examination during the hearing. Evidence may be used as proof of the facts relied upon without being produced at the hearing if the Arbitral Tribunal affirms during the hearing that the evidence has been exchanged, admitted as authentic, and put on record.
(2) Where evidence is produced by any party during or 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 in writing any challenge to the authenticity, admissibility and relevance of the evidence within a specified period of time.
(3) The evidence shall be verified by the Arbitral Tribunal. The Arbitral Tribunal shall decide whether to adopt the appraisers report.
(4) If a party has neither admitted nor denied facts alleged by the other party, and refuses to express any opinion on those facts despite explanation and inquiry by the Arbitral Tribunal, it shall be deemed to have admitted those facts.
(5) If a party has admitted to adverse facts or evidence, whether in the Application for Arbitration, Statement of Defence, its statements or other written opinions, those facts or evidence shall be confirmed by the Arbitral Tribunal, unless the party subsequently withdraws the admissions and produces evidence to rebut those facts or evidence.
(6) If a party can prove that the other party possesses evidence that it refuses to disclose without any justifiable reason, and that such evidence would have had an adverse impact on the case of the party possessing the evidence, adverse inferences may be drawn from such refusal to disclose.