|
19860115
The State Council
Regulations for the Implementation of the Law of the People’s Republic of China on Chinese-foreign Equity Joint Ventures
the State Council
September 20, 1983
Chapter I General Provisions
Article 1
These Regulations are formulated with a view to facilitating the smooth implementation of the Law of the People’s Republic of China
on Chinese-foreign Equity Joint Ventures (hereinafter referred to as the Law on Chinese-foreign Equity Joint Ventures).
Article 2
Chinese-foreign equity joint ventures (hereinafter referred to as joint ventures) established within China’s territory in accordance
with the Law on Chinese-foreign Equity Joint Ventures are legal persons in China and are subject to the jurisdiction of Chinese laws
and enjoy protection thereof.
Article 3
Joint ventures established within China’s territory shall be able to promote the development of China’s economy and the raising of
scientific and technological levels for the benefit of socialist modernization. Joint ventures permitted to be established are mainly
in the following industries:
(1)
energy development, the building material, chemical and metallurgical industries;
(2)
machine manufacturing, instrument and meter industries and offshore oil exploitation equipment manufacturing;
(3)
electronics and computer industries, and communication equipment manufacturing;
(4)
light, textile, foodstuffs, medicine, medical apparatus and packaging industries;
(5)
agriculture, animal husbandry and aquiculture;
(6)
tourism and service trades.
Article 4
Joint ventures to be applied for their establishment shall lay stress on economic results and shall comply with one or several of
the following requirements:
(1)
they shall adopt advanced technical equipment and scientific managerial methods which help increase the variety, improve the quality
and raise the output of products and save energy and materials;
(2)
they shall prove to be conducive to technical renovation of enterprises and be able to bring about quicker returns and bigger profits
with less investment;
(3)
they shall help expand exports and thereby increase foreign currency receipts;
(4)
they shall help train technical and managerial personnel.
Article 5
Application for establishing joint ventures shall not be approved if they involve any of the following circumstances:
(1)
detriment to China’s sovereignty;
(2)
violation of Chinese Law;
(3)
nonconformity with the requirements of the development of China’s national economy;
(4)
environmental pollution;
(5)
obvious inequity in the agreements, contracts and articles of association signed, impairing the rights and interests of one of the
parties.
Article 6
Unless otherwise stipulated, the government department in charge of the Chinese joint venturer in a joint venture shall be the department
in charge of the joint venture (hereinafter referred to as the department in charge). If a joint venture has two or more Chinese
joint venturers which are under different departments or from different regions, the departments and regions concerned shall, through
consultation, designate a department in charge.
Departments in charge are responsible for providing guidance and assistance and exercising supervision over the joint ventures.
Article 7
A joint venture has the right to independently conduct business operations and management within the scope as prescribed by Chinese
laws and regulations, and by the agreement, contract and articles of association of the joint venture. The departments concerned
shall provide support and assistance.
Chapter II Establishment and Registration
Article 8
The establishment of a joint venture in China is subject to examination and approval by the Ministry of Foreign Economic Relations
and Trade of the People’s Republic of China (hereinafter referred to as the MOFERT). Upon approval, an Approval Certificate shall
be issued by the MOFERT.
The MOFERT may entrust the people’s governments in the related provinces, autonomous regions, and municipalities directly under the
Central Government or relevant ministries or bureaus under the State Council (hereinafter referred to as the entrusted office) with
the power to examine and approve the establishment of joint ventures that comply with the following conditions:
(1)
the total amount of investment is within the limit set by the State Council and the source of capital of the Chinese venturers has
been ascertained;
(2)
no additional allocation of raw materials by the State is required and the national balance as to fuel, power, transportation and
foreign trade export quotas is not affected.
The entrusted office, after approving the establishment of a joint venture, shall report the same to the MOFERT for the record. An
Approval Certificate shall be issued by the MOFERT.
(The MOFERT and the entrusted office will hereinafter be generally referred to as the examining and approving authorities.)
Article 9
The following procedures shall be followed in the establishment of a joint venture:
(1)
it is the Chinese joint venturer in a joint venture that shall submit to its department in charge a project proposal and a preliminary
feasibility study report of the joint venture to be established with foreign joint venturer. The proposal and the preliminary feasibility
study report. upon examination and approval by the department in charge, shall be submitted to the examining and approving authorities
for final approval. The parties to the venture shall then conduct work centering around the feasibility study, and then proceed on
this basis, to negotiate and sign joint venture agreement, contract and articles of association;
(2)
when applying for the establishment of a joint venture, the Chinese joint venturer is responsible for the submission of the following
documents to the examining and approving authorities:
(a)
a written application for the establishment of the joint venture;
(b)
the feasibility study report jointly prepared by the parties to the venture;
(c)
joint venture agreement, contract and articles of association signed by representatives authorized by the parties to the venture;
(d)
list of candidates for chairman and vice-chairman of board of directors and directors nominated by the parties to the venture;
(e)
written opinions concerning the establishment of the said venture of the department in charge and the people’s government of the province,
autonomous region or municipality directly under the Central Government where the joint venture is located.
The aforesaid documents shall be written in Chinese. Documents (b), (c) and (d) may be written simultaneously in a foreign language
agreed upon by the parties to the joint venture. Both versions are equally authentic.
Article 10
Upon receipt of the documents stipulated in Article 9 (2). the examining and approving authorities shall, within 3 months, decide
whether to approve or disapprove them. Should anything inappropriate be found in any of the aforementioned documents, the examining
and approving authorities shall demand an amendment within a limited time. Otherwise, no approval shall be granted.
Article 11
The applicant shall, within one month as of the receipt of the Approval Certificate, register with the administrative department for
industry and commerce of the province, autonomous region or municipality directly under the Central Government in accordance with
the provisions of the Measures of the People’s Republic of China for the Administration of the Registration of Chinese-foreign Equity
Joint Ventures (hereinafter referred to as registration administration office). The date of the issuance of its business licence
is the date of the formal establishment of the joint venture.
Article 12
Any foreign investor who intends to establish a joint venture in China but is unable to find a specific co-operator in China may submit
a preliminary plan for the joint venture project and entrust the China International Trust and Investment Corporation (CITIC) or
a trust and investment corporation of a province, autonomous region or municipality directly under the Central Government, or a relevant
government department or a non-governmental organization, to recommend Chinese co-operators.
Article 13
The “joint venture agreement” mentioned in this Chapter refers to the document agreed upon by the parties to the joint venture on
some major points and principles governing the establishment of the joint venture.
“Joint venture contract” refers to the document agreed upon and concluded by the parties to the joint venture on their mutual rights
and obligations.
“Articles of association” refers to the document agreed upon by the parties to the joint venture specifying the purpose, organizational
principles and method of management of the joint venture in compliance with the principles of the joint venture contract.
Where the joint venture agreement comes into conflict with the contract, the latter shall prevail.
The parties to the joint venture may agree to sign the contract and articles of association only, without signing an agreement.
Article 14
A joint venture contract shall include the following main items:
(1)
the names, the countries of registration, the legal addresses of parties to the joint venture, and the names, positions and nationalities
of the legal representatives thereof;
(2)
name of the joint venture, its legal address, purpose and the scope and scale of business;
(3)
total amount of investment and registered capital of the joint venture, amount, proportion and forms of investment to be contributed
by each party to the joint venture, the time limit for contributing investment, stipulations concerning incomplete contributions,
and assignments of investments;
(4)
the proportion of profit to be shared and losses to be borne by each party;
(5)
the composition of the board of directors, the distribution of the number of directors, and the responsibilities, powers and means
of employment of the general manager, deputy general manager and high-ranking managerial personnel;
(6)
the main production equipment and technology to be adopted and their source of supply;
(7)
the ways and means of purchasing raw materials and selling finished products, and the ratio of products sold within Chinese territory
to those sold abroad;
(8)
arrangements for receipts and expenditures in foreign currency;
(9)
principles governing the handling of finance, accounting and auditing;
(10)
stipulations concerning labour management, wages, welfare, and labour insurance;
(11)
the duration of the joint venture, its dissolution and the procedures for liquidation;
(12)
the liabilities for breach of contract;
(13)
ways and procedures for settling disputes between the parties to the joint venture;
(14)
the language(s) used for the contract and the conditions for putting the contract into force.
The Attachment to the contract of a joint venture shall be equally authentic as the contract itself.
Article 15
Chinese laws shall apply to the conclusion, validity, interpretation and execution of a joint venture contract, as well as to the
settlement of disputes.
Article 16
The Articles of association of a joint venture shall include the following main items:
(1)
the name of the joint venture and its legal address;
(2)
the purpose, business scope and duration of the joint venture;
(3)
the names, countries of registration and legal addresses of parties to the joint venture, and the names, positions and nationalities
of the legal representatives thereof;
(4)
the total amount of investment, registered capital of the joint venture, each party’s investment proportion, stipulations concerning
the assignment of investment, the proportions of profit distribution and losses to be borne by parties to the joint venture;
(5)
the composition of the board of directors, its responsibilities, powers and rules of procedure, the term of office of the directors,
and the responsibilities of its chairman and vice-chairman;
(6)
the setting up of management organizations, rules for handling routine affairs, the responsibilities of the general manager, deputy
general manager and other high-ranking managerial personnel, and the method of their appointment and dismissal;
(7)
principles governing financial, accounting and auditing systems;
(8)
dissolution and liquidation;
(9)
procedures for amendment of the articles of association.
Article 17
The agreement, contract and articles of association shall come into force upon approval by the examining and approving authorities.
The same applies to amendments thereof.
Article 18
The examining and approval authorities and the registration administration office are responsible for supervising and checking on
the execution of the joint venture contracts and articles of association.
Chapter III Form of Organization and Registered Capital
Article 19
A joint venture is a limited liability company.
Each party to the joint venture is liable to the joint venture within the limit of the capital subscribed by it.
Article 20
The total amount of investment (including loans) of a joint venture refers to the sum of capital construction funds and the circulating
funds needed for the joint venture’s production scale as stipulated in the contract and the articles of association of the joint
venture.
Article 21
The registered capital of a joint venture refers to the total amount of investment registered at the registration administration office
for the establishment of the joint venture. It shall be the total amount of investment subscribed by parties to the joint venture.
The registered capital shall generally be represented in Renminbi, or may be in a foreign currency agreed upon by the parties to the
joint venture.
Article 22
A joint venture shall not reduce its registered capital during the term of the joint venture.
Article 23
If one party to the joint venture intends to assign all or part of its investment subscribed to a third party, consent shall be obtained
from the other party to the joint venture, and approval from the examining and approving authorities is required.
When one party assigns all or part of its investment to a third party, the other party has pre-emptive right.
When one party assigns its investment subscribed to a third party, the terms of assignment shall not be more favourable than those
to the other party to the joint venture.
No assignment shall be effective should there be any violation of the above stipulations.
Article 24
Any increase, assignment or other disposal of the registered capital of a joint venture shall be approved at a meeting of the board
of directors and submitted to the original examining and approving authorities for approval.
Registration procedures for changes shall be handled at the original registration administration office.
Chapter IV Ways of Contributing Investment
Article 25
Each joint venturer may invest in cash or may contribute buildings, factory premises, equipment or other materials, industrial property,
proprietary technology, or right to the use of a site, appraised at appropriate prices, as investment. If the investment is in the
form of buildings, premises, equipment or other materials, industrial property or proprietary technology, the prices shall be determined
through consultation by the parties to the joint venture on the basis of fairness and reasonableness, or they shall be evaluated
by a third party accepted and invited by the parties to the joint venture.
Article 26
The foreign currency contributed by the foreign joint venturer shall be converted into Renminbi according to the exchange rate quoted
by the State Administration of Foreign Exchange Control of the People’s Republic of China (hereinafter referred to as the State Administration
of Foreign Exchange Control) on the day of its submission or be cross exchanged into the foreign currency as agreed upon.
Should the cash Renminbi contributed by the Chinese joint venturer be converted into foreign currency, it shall be converted according
to the exchange rate quoted by the State Administration of Foreign Exchange Control on the day of its submission.
Article 27
The machinery, equipment and other materials contributed as investment by the foreign joint venturer shall meet the following conditions:
(1)
they are indispensable to the production of the joint venture;
(2)
China is unable to manufacture them, or can manufacture them only at too high a price, or their technical performance and time of
availability cannot meet the requirement;
(3)
the price fixed shall not be higher than the current international market price for similar equipment or materials.
Article 28
The industrial property or proprietary technology contributed by the foreign joint venturer as investment shall meet one of the following
conditions:
(1)
capable of manufacturing new products urgently needed in China or products suitable for export;
(2)
capable of markedly improving the performance, quality of existing products and raising productivity;
(3)
capable of notably saving raw materials, fuel or power.
Article 29
Foreign joint ventures who contribute industrial property or proprietary technology as investment shall present relevant documentation
on the industrial property or proprietary technology, including photocopies of the patent certificates or trademark registration
certificates, statements of validity, their technical characteristics, practical value, the basis for calculating the price and the
price agreement signed with the Chinese joint ventures. All these shall serve as an Attachment to the contract.
Article 30
The machinery, equipment or other materials, industrial property or proprietary technology contributed by foreign joint venturer as
investment shall be examined and approved by the department in charge of the Chinese joint venturer and then submitted to the examining
and approving authorities for further approval.
Article 31
The parties to the joint venture shall pay in all the investment subscribed according to the time limit stipulated in the contract.
Delay in payment or partial delay in payment shall be subject to a payment of investment on arrears or a compensation for the loss
as defined in the contract.
Article 32
After the investment is paid by the parties to the joint venture, a Chinese registered accountant shall verify it and provide a certificate
of verification, in accordance with which the joint venture shall issue to them investment certificates, which include the following
items: name of the joint venture; date, month and year of the establishment of the joint venture; names of the joint venturers and
the investment contributed; date, month and year of the contribution of the investment; and date, month and year of the issuance
of investment certificates.
Chapter V Board of Directors and Management Structure
Article 33
The highest authority of the joint venture shall be its board of directors, which shall decide all major issues concerning the joint
venture.
Article 34
The board of directors shall consist of no less than three members. The distribution of the number of directors shall be determined
through consultation by the parties to the joint venture with reference to the proportions of investment contributed.
The directors shall be appointed by the parties to the joint venture. The chairman of the board shall be appointed by the Chinese
joint venturer and its vice-chairman by the foreign joint venturer.
The term of office for the directors is four years. Their term of office may be renewed with the re-appointment by the parties to
the joint venture.
Article 35
The board of directors shall convene at least one meeting every year.The meeting shall be called and presided over by the chairman
of the board. Should the chairman be unable to call the meeting, he shall authorize the vice-chairman or a director to call and preside
over the meeting. The chairman may convene an interim meeting on the suggestion of more than one-third of the directors.
A board meeting requires a quorum of over two-thirds of the directors. Should a director be unable to attend, he may make a proxy
authorizing someone else to represent him and vote in his stead.
A board meeting shall usually be held at the location of the joint venture’s legal address.
Article 36
Decisions on the following items shall be made only after being unanimously agreed upon by the directors present at the board meeting:
(1)
amendment to the articles of association of the joint venture;
(2)
suspension or dissolution of the joint venture;
(3)
increase in or assignment of the registered capital of the joint venture;
(4)
merger of the joint venture with other economic organization.
Decision on other matters may be made according to the rules of procedure stipulated in the articles of association.
Article 37
The chairman of the board is the legal representative of the joint venture. Should the chairman be unable to perform his duties, he
shall authorize the vice-chairman of the board or a director to represent the joint venture.
Article 38
A joint venture shall establish a management office which shall be responsible for the day-to-day management and operations. The management
office shall have a general manager and several deputy general managers who assist the general manager in his work.
Article 39
The general manager shall carry out the decisions of the board meeting and organize and conduct the day-to-day management and operations
of the joint venture. Within the scope of authorization by the board, the general manager shall, externally, represent the joint
venture, and internally, have the right to appoint and dismiss his subordinates and exercise other powers as authorized by the board.
Article 40
The general manager and deputy general managers shall be engaged by the board of directors of the joint venture. These positions may
be held either by Chinese or foreign citizens.
At the instance of the board of directors, the chairman, vice-chairman or other directors of the board may concurrently be the general
manager, deputy general managers or other high-ranking managerial personnel of the joint venture.
In handling major issues, the general manager shall consult with the deputy general managers.
The general manager or deputy general managers shall not hold posts concurrently as general manager or deputy general managers of
other economic organizations. They shall not get involved in other economic organizations’ commercial competition against their own
joint venture.
Article 41
In case of graft or serious dereliction of duty on the part of the general manager, deputy general managers or other high-ranking
managerial personnel, they may be dismissed at any time by a decision of the board of directors.
Article 42
Establishment of branch offices (including sales offices) outside China or in regions of Hong Kong or Macao is subject to approval
by the MOFERT.
Chapter VI Introduction of Technology
Article 43
The introduction of technology mentioned in this Chapter refers to the acquisition of necessary technology by the joint venture by
means of technology transfer from a third party or a joint venturer.
Article 44
The technology to be introduced to the joint venture shall be appropriate and advanced and enable the venture’s products to display
conspicuous social economic results domestically or to be competitive on the international market.
Article 45
The right of the joint venture to do business independently shall be maintained when concluding such technology transfer agreements,
and relevant documentations shall be provided by the technology exporting party with reference to the provisions of Article 29 of
these Regulations.
Article 46
The technology transfer agreements concluded by a joint venture shall be examined and agreed to by the department in charge of the
joint venture and then submitted for approval to the examining and approving authorities.
Technology transfer agreements shall comply with the following stipulations:
(1)
Fees for the use of technology shall be fair and reasonable. Payments are generally made in royalties, and the royalty rate shall
not be higher than the obtaining standard international rate, which shall be calculated on the basis of net sales of the products
turned out with the relevant technology or in other reasonable ways agreed upon by both parties.
(2)
Unless otherwise agreed upon by both parties, the technology exporting party shall not put any restrictions on the quantity, price
or region of sale of the products that are to be exported by the technology importing party.
(3)
The term for a technology transfer agreement is generally not longer than 10 years.
(4)
After the expiration of a technology transfer agreement, the technology importing party shall have the right to continue to use the
technology.
(5)
Conditions for mutual exchange of information on the improvement of technology by both parties of the technology transfer agreement
shall be reciprocal.
(6)
The technology importing party shall have the right to buy the equipment, parts and raw materials needed from sources they deem suitable.
(7)
No irrational restrictive clauses prohibited under Chinese law and regulations shall be included.
Chapter VII Right to the Use of Site and Fees
Article 47
Joint ventures shall practise economy in the use of land for their premises. Any joint venture requiring the use of a site shall file
an application with local departments of the municipal (county) government in charge of land and obtain the right to use a site after
securing approval and signing a contract. The acreage, location, purpose and contract period and fee for the right to use a site
(hereinafter referred to as site use fee), rights and obligations of the two contracting parties and penalty provisions for breach
of contract shall be stipulated in explicit terms in the contract.
Article 48
If the Chinese joint venturer already has the right to the use of site for the joint venture, it may use the right as part of its
investment. The monetary equivalent of this investment shall be the same as the site use fee otherwise paid for acquiring a site
of similar conditions.
Article 49
The standards for site use fee shall be set by the people’s government of the province, autonomous region or municipality directly
under the Central Government where the joint venture is located in the light of the purpose of use, geographic and environmental
conditions, expenses for requisition, demolition and resettlement and the joint venture’s requirements for infrastructure, and filed
with the MOFERT and the state department in charge of land for the record.
Article 50
Joint ventures engaged in agriculture and animal husbandry may, with the consent of the people’s government of the province, autonomous
region or municipality directly under the Central Government, pay a percentage of the joint venture’s revenues from its business
operations as site use fees to the local department in charge of land.
Projects of a development nature in economically under-developed areas may receive special preferential treatment in respect of site
use fees with the consent of the local people’s government.
Article 51
The rates of site use fees shall not be subject to adjustment in the first 5 years beginning from the day the land is used. After
that, the interval in between the necessary adjustments to be made according to the development of the economy, changes in supply
and demand, and changes in geographic and environmental conditions shall not be less than three years.
Site use fee as part of the investment by the Chinese joint venture shall not be subject to adjustment during the contract period.
Article 52
The fee for the right to the use of a site obtained by a joint venture according to Article 47 of these Regulations shall be paid
annually from the day to use the land stipulated in the contract. For the first calendar year, the venture will pay a half-year fee
if it has used the land for over 6 months; if less than 6 months, the site use fee shall be exempted. During the contract period,
if the rate of site use fee is adjusted, the joint venture shall pay it according to the new rate from the year of adjustment.
Article 53
Joint ventures that have permission to use a site shall only have the right to the use of it but no ownership. Assignment of the right
to use land is forbidden.
Chapter VIII Planning, Purchasing and Selling
Article 54
A joint venture shall work out a capital construction plan (including labour force required for the construction, building materials,
water, power and gas supply) according to the approved feasibility study report, and the plan shall be included in the capital construction
plan of the department in charge of the joint venture, which shall give priority in arranging supplies and ensured the execution
of the plan.
Article 55
Funds earmarked for capital construction of a joint venture shall be put under unified management of the bank where the venture has
opened an account.
Article 56
A joint venture shall work out a production and operating plan in accordance with the scope of operation and scale of production stipulated
in the contract. The plan shall be carried out with the approval of the board of directors and filed with the department in charge
of the joint venture for the record.
Departments in charge of the joint ventures and planning administration departments at all levels shall not prescribe mandatory production
and operation plans for joint ventures.
Article 57
In its purchase of required machinery, equipment, raw materials, fuel, parts, means of transport and office equipment, etc. (hereinafter
referred to as materials), a joint venture has the right to decide whether it buys them in China or from abroad. However, where t
| Category |
ARBITRATION |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1988-06-21 |
Effective Date |
1989-01-01 |
|
|
|
THE State Council’s Official Reply Concerning the Renaming of the Maritime Arbitration Commission As the China Maritime Arbitration
Commission and the Amendment of Its Arbitration Rules |
The Official Reply
CHINA MARITIME ARBITRATION COMMISSION ARBITRATION RULES (Adopted on
Chapter I General Provisions
Chapter II Arbitration Proceedings
CHINA MARITIME ARBITRATION COMMISSION ARBITRATION RULES
Chapter I General Provisions
Chapter II Arbitration Proceedings
Chapter III Summary Proceedings
Chapter IV Supplementary Provisions
(June 21, 1988)
The Official Reply
China Council for the Promotion of International Trade:
The State Council approves the renaming of the Maritime Arbitration
Commission of your Council as the China Maritime Arbitration Commission. The
existing relationship of its subordination remains unchanged.
The Arbitration Rules of the China Maritime Arbitration Commission shall
be amended by your Council in accordance with China’s laws and the
international treaties concluded or acceded to by China and with reference to
international practice, and then promulgated for implementation after adoption
by your Council. Hereafter, any amendments to the Arbitration Rules shall be
made by your Council’s own decision.
CHINA MARITIME ARBITRATION COMMISSION ARBITRATION RULES (Adopted on
September 12, 1988 at the Third Session of the First National Congress of the
China Council for the Promotion of International Trade (China Chamber of
International Commerce))
Chapter I General Provisions
Section 1 Jurisdiction
Article 1 The China Maritime Arbitration Commission (hereinafter referred
to as the Arbitration Commission) independently and impartially settles
maritime disputes by means of arbitration so as to protect the justified
rights and interests of the parties and promote shipping industry and foreign
economic and trade development.
Article 2 Upon receiving written application of one of the disputing
parties and in accordance with written agreement concluded between the
parties, prior or subsequent to the occurrence of dispute, to refer their
dispute to the Arbitration Commission for arbitration, the Arbitration
Commission takes cognizance of:
(1) disputes regarding remuneration for salvage services rendered by
sea-going vessels to each other or by a sea-going vessel to a river craft and
vice versa;
(2) disputes arising from collisions between sea-going vessels or between
sea-going vessels and river craft or from damages caused by sea-going vessels
to harbour structures or installations;
(3) disputes arising from chartering, agency, towage, raising, sale,
repairing and building of or in respect of sea-going vessel, carriage by sea
in virtue of contracts of affreightment, bills of lading or other shipping
documents, and marine insurance;
(4) disputes regarding pollution damages to marine environmcnt;
(5) other maritime disputes submitted for arbitration by agreement between
the parties.
An arbitration agreement means the arbitration clause stipulated by the
parties in their contract, or agreements in writing concluded in other forms
to submit disputes for arbitration.
The Arbitration Commission has power to decide on the validity of
arbitration agreement and the jurisdiction over arbitration cases.
Section 2 Organization
Article 3 The Arbitration Commission is composed of Chairman,
Vice-Chairmen and Commission members.
The Chairman performs functions and duties given by these Rules and any
Vice-Chairman, if authorized by the Chairman, may perform the functions and
duties of the Chairman.
Under the Arbitration Commission, a Secretariat is established to handle
the day-to-day work of the Arbitration Commission.
Article 4 The Arbitration Commission maintains a panel of arbitrators.
The arbitrators are selected and appointed by the China Council for the
Promotion of International Trade (China Chamber of International Commerce)
from among Chinese and foreign persons with relevant expertise and practical
experience.
Article 5 The Arbitration Commission is located in Beijing. The
Arbitration Commission may, according to the requirement of development of
arbitration business, establish sub-commissions in other places within the
territory of China.
Chapter II Arbitration Proceedings
Section 1 Application for Arbitration, Defence and Counterclaims
Article 6 The Claimant must submit his Application for Arbitation to the
Arbitration Commission in accordance with the following requirements:
(1) an Application for Arbitration in writing must be submitted to the
Arbitration Commission. The following must be specified in the Application for
Arbitration:
(a) the name and address of the Claimant and those of the Respondent;
(b) the arbitration agreement relied upon by the Claimant;
(c) the Claimant’s claim and the facts and evidence on which his claim is
based.
The Application for Arbitration shall be signed by the Claimant and/or the
attorney authorized by the Claimant.
(2) when submitting an Application for Arbitration to the Arbitration
Commission, relevant documentary evidence on which the Claimant’s claim is
based shall accompany the Application for Arbitration.
(3) the Claimant shall appoint an arbitrator from among the Panel of
Arbitrators of the Arbitration Commission or authorize the Chairman of the
Arbitration Commission to make an appointment on his behalf.
(4) the Claimant shall pay an arbitration fee in advance to the
Arbitration Commission according to the Arbitration Fee Schedule attached to
these Rules.
Article 7 After receipt of the Application for Arbitration and its
attachments and when the Arbitration Commission, after examination, deems that
the Claimant has completed the formalities required for arbitration, the
Arbitration Commission shall immediately mail to the Respondent one copy each
of the Claimant’s Application for Arbitration and its attachments as well as
the Arbitration Rules and the Panel of Arbitrators of the Arbitration
Commission.
Article 8 The Respondent shall, within 20 days after receipt of the
Application for Arbitration, appoint an arbitrator from among the Panel of
Arbitrators of the Arbitration Commission, or authorize the Chairman of the
Arbitration Commission to make an appointment on his behalf and shall, within
45 days after receipt of the Application for Arbitration, submit his defence
and relevant documentary evidence to the Arbitration Commission.
Article 9 The Respondent shall file with the Arbitration Commission his
counter-claim, if any, in connection with the case taken cognizance of by the
Arbitration Commission, within the time limit as specified in Article 8 for
the submission of his defence. The Respondent must state, in his
counter-claim, his claim and the facts and evidence on which his claim is
based and attach relevant documentary evidence to his counter-claim.
When filing a counter-claim, the Respondent must pay an arbitration fee in
advance according to the Arbitration Fee Schedule attached to these
Arbitration Rules.
Article 10 The Arbitration Commission has discretion to ask the
Respondent to pay in advance a part of arbitration fees when it deems it
necessary.
Article 11 When submitting an Application for Arbitration, defence,
counter-claim, relevant documentary evidence and other documents to the
Arbitration Commission, the parties shall provide duplicate copies as many as
the number of the other party/parties and the arbitrators, of whom the
arbitration tribunal is composed.
Article 12 The parties may authorize attorneys to confer with the
Arbitration Commission on matters relating to arbitration. Such attorneys may
be citizens of China or foreign citizens. The authorized attorney must produce
a Power of Attorney to the Arbitration Commission.
Article 13 The Arbitration Commission may, pursuant to the request of the
parties and in accordance with the Chinese law, apply to the Chinese court in
the place where the property of the Respondent(s) is or in the place where the
arbitration institution is located for a decision in respect of taking
preservative measures.
Section 2 Composition of Arbitration Tribunal
Article 14 After each of the two parties has chosen one arbitrator from
among the Panel of Arbitrators of the Arbitration Commission or the Chairman
of the Arbitration Commission has made such an appointment under the
authorization by the party/parties, the Chairman of the Arbitration Commission
shall appoint a third arbitrator from among the Panel of Arbitrators of the
Arbitration Commission as the presiding arbitrator to form an arbitration
tribunal to hear the case.
Article 15 Both parties may jointly appoint or authorize the Chairman of
the Arbitration Commission to appoint one arbitrator from among the Panel of
Arbitrators of the Arbitration Commission as a sole arbitrator to form an
arbitration tribunal to hear the case alone.
If both parties have agreed on the appointment of a sole arbitrator to
hear their case alone but failed to agree on the choice of such a sole
arbitrator within 20 days as from the date on which the Respondent receives
the Application for Arbitration or as from the date on which both parties
reach an agreement to have their case heard by a sole arbitrator, the Chairman
of the Arbitration Commission shall appoint the sole arbitrator.
Article 16 If the Respondent fails to appoint and fails to authorize the
Chairman of the Arbitration Commission to appoint an arbitrator according to
Article 8 of these Rules, the Chairman of the Arbitration Commission has the
power to appoint an arbitrator for the Respondent.
Article 17 When there are two or more Claimants and/or Respondents in an
arbitration case, the Claimants’ side and/or the Respondents’ side shall each,
through consultation, appoint one arbitrator from among the Panel of
Arbitrators of the Arbitration Commission. If the Claimants’ side fails to
make such appointment at the time when the Claimants submit their Application
for Arbitration and/or Respondenls’ side is unable to appoint one arbitrator
within 20 days as from the date on which the last Respondent receives the
Application for Arbitration, the appointment shall be made by the Chairman of
the Arbitration Commission.
Article 18 Any appointed arbitrator having personal interest in the case
shall himself request the Arbitration Commission for withdrawal from his
office and the parties have the right to make a request in writing to the
Arbitration Commission for a withdrawal of the arbitrator from his office.
Article 19 A party who intends to challenge an arbitrator must put
forward his challenge before the first oral hearing of the case. If the
grounds for challenge come out or become aware of after the first oral
hearing, the challenge may be raised before the conclusion of the last hearing.
Article 20 The Chairman of the Arbitration Commission shall decide on the
challenge.
Article 21 If an arbitrator cannot perform his duty due to withdrawal or
other reasons, a substituted arbitrator shall be appointed in accordance with
the procedure pursuant to which the original arbitrator was appointed.
Section 3 Hearing
Article 22 The arbitration tribunal shall hold oral hearings to hear the
case. However, at the request of the parties or with their consent, oral
hearings may be omitted and the arbitration tribunal may examine the case and
make an award on the basis of documents only.
Article 23 The date of oral hearing shall be decided by the arbitration
tribunal in consultation with the Secretariat of the Arbitration Commission
and the notice of hearing shall be communicated to the parties 30 days before
the date of hearing. A party having justified reasons may request for
postponement of the date of hearing. But his request must be communicated to
the Secretariat of the Arbitration Commission 12 days before the date of
hearing unless unforeseeable special circumstances occur. The Seretariat shall
inform the arbitration tribunal of his request and the arbitration tribunal
shall decide thereon, in consultation with the Secretariat.
Article 24 The cases taken cognizance of by the Arbitration Commission
shall be heard in the place where the Arbitration Commission is located and
may, with the approval of the Chairman of the Commission, be heard in other
places.
Article 25 The arbitration tribunal shall not hear cases in open
sessions. If both parties request hearings in open sessions, the arbitration
tribunal shall decide thereon.
Article 26 The parties shall give evidence for the facts on which their
claim or defence is based. The arbitration tribunal may, if it deems it
necessary, make investigation and collect evidence on its own initiative.
Article 27 The evidence shall be examined and approved by the arbitration
tribunal.
Article 28 The arbitration tribunal may consult experts or appoint
appraisers for the clarification of special questions relating to the cases.
Such experts and appraisers may be Chinese or foreign organizations or
citizens.
Article 29 Should one of the parties or his attorney fail to appear at
the hearing, the arbitration tribunal may proceed with the hearing and make an
award by default.
Article 30 During hearings, the Secretariat of the Arbitration Commission
shall take records in writing and/or tape-recordings and the arbitration
tribunal may, if it deems it necessary, order the parties and/or their
attorneys, witnesses and/or other persons involved to sign the records taken.
Article 31 If both parties reach a settlement by themselves of a case
under the cognizance of the Arbitration Commission, the Claimant shall timely
request for withdrawal of the case. Dismissal of the case shall be decided by
the Chairman of the Arbitration Commission before an arbitration tribunal is
formed and by the arbitration tribunal after the arbitration tribunal is set
up.
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.
Section 4 Award
Article 32 The arbitration tribunal shall render an arbitral award within
45 days after the closing of examination and hearing.
Article 33 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 can be written down in the record and
docketed into the file.
Article 34 The arbitration tribunal shall state the reasons upon which
the arbitral award is based unless the award is made in accordance with the
Article 37. The arbitral award shall be signed by all or majority of the
arbitrators sitting in the arbitration tribunal and shall contain the date and
place on and in which the arbitral award is made.
Article 35 The arbitration tribunal may, if it deems it necessary or the
parties so request and it agrees, make an interim, interlocutary or partial
award on any issue of the case at any time in the process of arbitration.
Article 36 The arbitral award is final and neither party may bring a suit
before a law-court or make a request to another organization for revising the
arbitral award.
Article 37 The Arbitration Commission and the arbitration tribunal may
conciliate cases under their cognizance. In case a settlement agreement is
reached through conciliation, the arbitration tribunal shall make an award in
accordance with the contents of the settlement agreement reached by and
between both parties.
Article 38 The parties must automatically execute the arbitral award
within the time limit specified in the award. If no time limit is specified in
the award, the parties shall carry out the award immediately.
In case either party fails to execute the award, the other party may,
pursuant to the Chinese law, apply to the Chinese court for enforcement of the
award or, according to the 1958 Convention on the Recognition and Enforcement
of Foreign Arbitral Awards or other international treaties that China has
concluded or acceded to, apply to the foreign court which has jurisdiction for
enforcement of the award.
Chapter III Supplementary Provisions
Article 39 The Chinese language is the official language of the
Arbitration Commission. At the hearing, if the parties or their attorneys or
witnesses are not familiar with the Chinese language, the Secretariat of the
Arbitration Commission may provide them or the parties may bring with them
their interpreters.
The Secretariat of the Arbitration Commission may, if it deems it
necessary, ask the parties to hand in corresponding translation copies in
Chinese or other languages of the various documents and evidential materials
submitted by the parties.
Article 40 Any written communication from the Arbitration Commission to
the parties is deemed to have been received if it is delivered to the
addressee personally or if it is 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 received 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 41 Apart from charging arbitration fees from the parties
according to the Arbitration Fee Schedule attached to these Rules, the
Arbitration Commission may collect from the parties other actual expenses
including arbitrators’ remuneration and their travel and boarding expenses for
dealing with the case and the fees and expenses for expert, apraisers and
interpreters appointed by the arbitration tribunal, etc.
Certain fees and actual expenses incurred may be collected by the
Arbitration Commission if a case is withdrawn after the parties have reached
by themselves a settlement agreement.
Article 42 These Rules shall also apply to the cases of dispute taken
cognizance of by the Sub-Commissions of the Arbitration Commission. In the
arbitration proceedings conducted by the Sub-Commissions of the Arbitration
Commission, the functions and duties of the Chairman and the Secretariat of
the Arbitration Commission under these Rules shall be performed by the
Chairmen and the Secretariats of the Sub-Commissions.
Article 43 These Rules shall come into force as of January 1, 1989.
Arbitration Fee Schedule
Amount of Claim (RMB)
Amount of Fee (RMB)
100,000 Yuan or less 6%
of the amount of claim, minimum 2,000
Yuan
100,000 Yuan to 500,000 Yuan 6,000 Yuan plus 4% of the excess over
100,000 Yuan
500,000 Yuan to 1,000,000 Yuan 22,000 Yuan plus 3% of the excess over
500,000
Yuan
1,000,000 Yuan to 5,000,000 Yuan 37,000 Yuan plus 1.5% of the excess over
1,000,000
Yuan
5,000,000 Yuan or more 97,000 Yuan
plus 0.7% of the excess over
5,000,000
Yuan
If no amount of claim is stated when applying for arbitration, the amount
of arbitration fees shall be determined by the Secretariat of the Arbitration
Commission.
If the arbitration fee is charged in foreign currency, an amount of
foreign currency equivalent to the corresponding RMB value specified in this
Schedule shall be paid.
CHINA MARITIME ARBITRATION COMMISSION ARBITRATION RULES
(Revised and adopted by China Council for the Promotion of International Trade
on September 4, 1995)
Chapter I General Provisions
Section 1 Jurisdiction
Article 1 These Rules are formulated in accordance with the Arbitration
Law of the People’s Republic of China, the provisions of relevant laws, and
the Decision, Circular and Official Reply of the State Council.
Article 2 The China Maritime Arbitration Commission (formerly known as
Maritime Arbitration Commission of China Council for the Promotion of
International Trade, hereinafter referred to as the Arbitration Commission),
by means of arbitration, independently and impartially settles maritime
disputes arising from transportation, production and navigation conducted in
oceans, coastal waters and water areas adjacent to sea, either contractual or
non-contractual, so as to protect the justified rights and interests of the
parties and promote shipping industry at home and abroad and foreign economic
and trade development.
The Arbitration Commission takes cognizance of the following cases of
maritime disputes:
(1) disputes arising from salvage of vessels and general average;
(2) disputes arising from collisions of vessels or from damages caused by
vessels to structures or installations at sea, in water areas adjacent to sea
or in harbours, or to sea-bed or underwater installations;
(3) disputes arising from management, operation, chartering, mortgage,
agency, towage, raising, sale, repairing, building and dismantling of or in
respect of sea-going vessel/vessel on water, carriage by sea/water in virtue
of contracts of affreightment, bills of lading or other documents, and
marine/water insurance;
(4) disputes regarding exploitation and utilization of marine resources
and pollution damages to marine environment;
(5) disputes arising from agency contracts for carriage of goods,
contracts for the supply of vessel materials, contracts of employment of
foreign crew or contracts of fishing production or fishery;
(6) other maritime disputes submitted for arbitration by agreement between
the parties.
Article 3 The Arbitration Commission takes cognizance of cases upon
receiving written application of one of the disputing parties and in
accordance with written agreement concluded between the parties, prior or
subsequent to the occurrence of dispute, to refer their dispute to the
Arbitration Commission for arbitration.
An arbitration agreement means the arbitration clause stipulated by the
parties in their contract, or an agreement in writing concluded in other forms
to submit disputes for arbitration.
Article 4 The Arbitration Commission has power to decide on the existence
and validity of arbitration agreement and the jurisdiction over arbitration
cases. If the parties dispute over the validity of the arbitration agreement,
the people’s court shall decide on the validity when one of the parties applies
to the Arbitration Commission for decision on the validity and another party
applies to the people’s court for decision.
Article 5 An arbitration clause in a contract should be deemed as a
clause separate and independent from other clauses of the contract, and an
arbitration agreement attached to a contract also be deemed as one part
separate and independent from other clauses of the contract. The
modification, rescission, termination, annulment or invalidity, existence or
not of such a contract cannot prejudice the effect of the arbitration clause
or arbitration agreement.
Article 6 Defence to the arbitration agreement and/or the jurisdiction
over an arbitration case shall be submitted prior to the first hearing of the
arbitration tribunal; defence to the jurisdiction over a case examined on the
basis of documents only shall be submitted prior to the first substantial
defence.
Article 7 If any party agrees to refer his dispute to the Arbitration
Commission, he is deemed to accept the arbitration under these Rules.
Section 2 Organization
Article 8 The Arbitration Commission has one Honorary Chairman and
Consultants.
Article 9 The Arbitration Commission is composed of Chairman,
Vice-Chairmen and Commission members. The Chairman performs functions and
duties given by these Rules and any Vice-Chairman, if authorized by the
Chairman, may perform the functions and duties of the Chairman.
Under the Arbitration Commission, a Secretariat is established to handle
the day-to-day work of the Arbitration Commission under the leadership of the
Secretary of the Arbitration Commission.
Article 10 The Arbitration Commission maintains a panel of arbitrators.
The arbitrators are selected and appointed by the Arbitration Commission from
among Chinese and foreign persons with expertise and practical experience in
navigation, carriage by sea, foreign trade, insurance, law and other fields.
Article 11 The Arbitration Commission is located in Beijing. The
Arbitration Commission may, according to the requirement of development of
arbitration business, establish sub-commissions in other places within the
territory of China.
Chapter II Arbitration Proceedings
Section 1 Application for Arbitration, Defence and Counterclaim
Article 12 The arbitration proceedings commence from the date on which
the Arbitration Commission issues the Arbitration Notice.
 
1...209210211212Page 210 of 212
| 