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
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 and have obtained the consent of the BAC to the application of a different procedure or a different set of arbitration rules.
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, whether contractual or not. 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
(1) 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 or non-existence of the principal contract.
(2) The Arbitral Tribunal shall have the power to rule on its own jurisdiction, including any objection to the validity 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
The BAC shall send to the Claimant a Notice of Case Acceptance, a set of the Rules and the BACs Panel of Arbitrators. Within 10 days of the acceptance of the Application for Arbitration, 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 its Statement of Defence and any supporting documents containing the following information and documentation:
(a) 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);
(b) the key points of its defence and the facts and grounds on which the defence is based;
(c) evidence and the source of the evidence (together with a list thereof), and the names and addresses of its witnesses; and
(d) 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 any, in writing. 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 5 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.
Article 12: Amendment to Claim or Counterclaim
An application to amend the claims 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 from the Panel of Arbitrators maintained by the BAC. A separate panel is available for international commercial cases.
Article 18: Appointment of Arbitrator
(1) Within 15 days of the receipt of the Notice of Arbitration or such other time limit fixed by the arbitration agreement, the parties shall nominate or entrust the Chairman to appoint their arbitrators from the BACs Panel of Arbitrators and jointly nominate or jointly entrust the Chairman to appoint a third arbitrator from the BACs Panel of Arbitrators who shall be the presiding arbitrator.
(2) The parties may each nominate 1 to 3 arbitrators as the candidates for the presiding arbitrator within the time limit specified in paragraph 1 above. 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.
Article 19: Notice of Constitution of Arbitral Tribunal
Within 5 days of the constitution of the Arbitral Tribunal, the BAC shall notify the parties in writing 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, having decided to accept the partys nomination or the Chairmans appointment, 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) In the course of the arbitration, if the arbitrator comes to know of any circumstances that ought to be disclosed, he shall disclose those circumstances in writing immediately.
(4) The secretary of the Arbitral Tribunal shall deliver a copy of the arbitrators disclosure to each party. Within 5 days of the receipt of such disclosure, the parties shall state in writing if they intend to challenge the arbitrator.
(5) 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.
(6) A party who fails to challenge an arbitrator within the period of time specified in paragraph 4 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 his 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 4, 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 he becomes unable to conduct the arbitration as a result of death or illness, withdraws from the arbitration on his own accord, 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 he is prevented de jure or de facto from fulfilling his functions as an arbitrator, or that he is not fulfilling his 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.
Chapter V: The 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, including all meetings and hearings in the arbitration, 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 Hearing
Hearings shall be held at the BACs premises, or at other locations if the parties so agree or the parties jointly request and the Secretary-General of the BAC (the Secretary-General) consents. The resulting additional costs shall be borne by the parties.
Article 26: 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 27: 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 28: 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.
(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.
Article 29: 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.
(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 30: Collection of Evidence by Arbitral Tribunal
(1) The Arbitral Tribunal may, if any party so requests, undertake investigations and collect evidence as it considers necessary. 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 31: 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 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.
(3) 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 BAC 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 the report.
Article 32: 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 33: 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 those 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, which 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.
Article 34: Debate
The parties have a right to debate during the hearing.
Article 35: Closing Statement
At the close of the hearing, the Arbitral Tribunal shall solicit final comments from the parties, which may be presented orally during the hearing or in writing within a period of time specified by the Arbitral Tribunal.
Article 36: Record of Hearing
(1) The Arbitral Tribunal shall keep minutes of the hearing, except in relation to conciliation proceedings.
(2) The secretary of the Arbitral Tribunal may, with the consent of the Arbitral Tribunal, make an audio or visual record of the hearing.
(3) The parties and other participants in the arbitration shall have a right to request a rectification of any error and omission in the minutes of their testimony. The request shall be recorded if the Arbitral Tribunal does not allow the rectification.
(4) The Arbitral Tribunal, the reporter, the parties, and other participants in the arbitration shall sign or affix their seals on the minutes.
Article 37: Withdrawing the Application for Arbitration
(1) If the parties reach a settlement after submission of the Application for Arbitration, they may request the Arbitral Tribunal to make an award incorporating the terms of the settlement agreement. The Claimant may also withdraw the Application for Arbitration.
(2) If the Claimant withdraws the Application for Arbitration, the Arbitral Tribunal, or if the Arbitral Tribunal has not been constituted at the time of withdrawal, the BAC, shall decide on the dismissal of the case.
(3) If the Claimant withdraws the Application for Arbitration before the constitution of the Arbitral Tribunal, the BAC shall refund the case acceptance fees paid in advance but may, depending on the circumstances of the case, retain a portion of the case handling fees paid in advance. If the Claimant withdraws the Application for Arbitration after the constitution of the Arbitral Tribunal, the BAC shall, depending on the circumstances of the case, refund a portion each of the case acceptance fees and the case handling fees paid in advance.
Article 38: Conciliation
(1) The Arbitral Tribunal may, at the request of both parties or upon obtaining the consent of both parties, conciliate the case in a manner it considers appropriate.
(2) If the conciliation leads to a settlement, the Arbitral Tribunal shall issue a statement of conciliation or make an award in accordance with the terms of the settlement.
(3) The statement of conciliation shall state the claims and the settlement agreement reached by the parties. It shall be signed by the Arbitral Tribunal and affixed with the seal of the BAC before being sent to both parties and shall be binding once both parties have acknowledged receipt of it.
(4) If the conciliation fails to lead to a settlement, neither party shall invoke any of the statements, opinions, views or proposals expressed by the other party or the Arbitral Tribunal during the conciliation as grounds for any claim, defence or counterclaim in the arbitral proceedings, other judicial proceedings or any other proceedings.
Chapter VI: Arbitral Award
Article 39: Decision on Procedural Matters
(1) Any decision of an Arbitral Tribunal composed of three arbitrators shall be made by a majority of the arbitrators. If the Arbitral Tribunal fails to reach a majority decision, the decision of the presiding arbitrator shall prevail.
(2) With the consent of the parties or the authorization of the other arbitrators of the Arbitral Tribunal, the presiding arbitrator may also decide on procedural matters.
Article 40: Time Limit for the Award
The Arbitral Tribunal shall render its award within 4 months of its constitution, excluding any period of time taken to conduct an appraisal. If there are special circumstances justifying an extension, the Secretary-General may, at the request of the presiding arbitrator, approve a suitable extension of the time limit.
Article 41: Arbitral Award
(1) The award of an Arbitral Tribunal composed of three arbitrators shall be made by a majority decision. The dissenting opinion of the minority may be put on record. If the Arbitral Tribunal fails to reach a majority decision, the award shall be made in accordance with the decision of the presiding arbitrator.
(2) The award shall state the claims, the facts of the dispute, the reasons upon which the award is based, the result of the award, the allocation of the costs of the arbitration, the date of the award and the place where the award is made. The award need not state the factual background to the dispute or the reasons upon which the award is based if the parties so agree, or if the award is made in accordance with the terms of a settlement between the parties.
(3) The award shall be signed by each member of the Arbitral Tribunal. The dissenting arbitrator may choose not to sign the award. An arbitrator who chooses not to sign the award shall issue a dissenting opinion, which shall be sent to the parties together with the award but does not form part of the award. If the arbitrator who chooses not to sign the award does not issue a statement of personal opinion, he shall be deemed to have refused to sign the award without any justifiable reason.
(4) After the award has been signed by the arbitrator or arbitrators, as the case may be, the BACs seal shall be affixed to it.
(5) The award shall be legally effective as of the date it is made.
(6) The Arbitral Tribunal may, prior to the final award, make an interim or partial award on any disputed issue in the arbitration if necessary, or if the parties so request and it consents. Any partys failure to perform an interim award shall neither affect the progress of the arbitral proceedings nor prevent the Arbitral Tribunal from making its final award.
Article 42: Allocation of Costs
(1) The Arbitral Tribunal shall have the power to fix in its award the costs of the arbitration and the expenses incurred to be borne by the parties.
(2) The costs of the arbitration shall in principle be borne by the losing party. If the parties are only partially successful in their respective cases, the Arbitral Tribunal shall decide on the proportion of each partys share of the costs based on each partys responsibilities. If the parties reach a settlement, whether as a result of the Arbitral Tribunals conciliation or otherwise, they may determine the proportion of their respective share of the costs through consultation.
(3) The Arbitral Tribunal shall also have the power to order in its award, at the request of the winning party, that the losing party bears the cost and expenses reasonably incurred by the winning party in the arbitration.
Article 43: Rectification to Award and Supplementary Award
(1) The Arbitral Tribunal shall correct in its award any error in computation, any clerical or typographical error, and any omission from its decision of claims on which it has made a judgment in its reasoning. In the event any claim is omitted entirely from the award, the Arbitral Tribunal shall make a supplementary award.
(2) Any party may, on discovering the existence of any of the circumstances stipulated in the preceding paragraph, request in writing within 30 days of the date of receipt of the award that the Arbitral Tribunal rectify the award or make a supplementary award.
(3) Any rectification by or supplementary award of the Arbitral Tribunal shall be an integral part of the original arbitral award.
Chapter VII: Summary Procedure
Article 44: Application of Summary Procedure
(1) Unless otherwise agreed by the parties, the summary procedure set out in this chapter (the Summary Procedure) shall apply if the amount in dispute does not exceed RMB 1,000,000.
(2) The parties may agree to apply the Summary Procedure even if the amount in dispute exceeds RMB 1,000,000, in which case the costs of the arbitration shall be reduced accordingly.
(3) If the parties choose to apply the Ordinary Procedure (non-summary procedure) even if the amount in dispute does not exceed RMB 1,000,000, they shall bear any ensuing additional costs of the arbitration.
Article 45: Composition of Arbitral Tribunal
(1) Cases applying the Summary Procedure shall be heard by a sole arbitrator.
(2) Within 10 days of the receipt of the notice of arbitration, the parties shall jointly nominate or jointly entrust the Chairman to appoint a sole arbitrator from the BACs Panel of Arbitrators. The sole arbitrator may be selected in the manner prescribed by paragraph 2 of Article 18. If the parties fail to jointly nominate or jointly entrust the Chairman to appoint the sole arbitrator within the specified period of time, the Chairman shall make the appointment immediately.
Article 46: Time Limit for Defence and Counterclaim
Within 10 days of the receipt of the Request for Submission of Defence (30 days for international commercial cases), the Respondent shall submit to the BAC its Statement of Defence and any relevant supporting document. A Counterclaim, if any, shall also be submitted within the same period of time, together with any relevant supporting document.
Article 47: Notice of Hearing
(1) In the event of a hearing, the Arbitral Tribunal shall notify the parties of the date of the hearing at least 3 days before the hearing (10 days for international commercial cases).
(2) If the Arbitral Tribunal is deciding the case by way of a hearing, it shall hold one hearing only. The Arbitral Tribunal may decide to hold subsequent hearings if necessary. Notification of the date of any hearing subsequent to the first one is not subject to the 3-day requirement.
Article 48: Termination of Summary Procedure
(1) The application of the Summary Procedure is not affected by mere reason that, as a result of any amendments to the Application for Arbitration or the submission of a Counterclaim, the amount in dispute exceeds RMB 1,000,000. However, if the sole arbitrator finds that the application of the Summary Procedure may be affected, he may make a request to the Chairman for the Arbitral Tribunal to be constituted by three arbitrators.
(2) In the event of a change from the Summary Procedure to the Ordinary Procedure, the parties shall, within 5 days of the receipt of notice of change of procedure, nominate or entrust the Chairman to appoint their arbitrators in accordance with the provisions of these Rules. Unless otherwise agreed by the parties, the original sole arbitrator shall become the presiding arbitrator.
(3) The re-constituted Arbitral Tribunal shall decide whether or not to repeat the arbitral proceedings conducted prior to the re-constitution. The Summary Procedure shall not apply to arbitral proceedings conducted after the re-constitution.
Article 49: Time Limit for the Award
The Arbitral Tribunal shall render its award within 75 days of the date of its constitution. For an international commercial case, the award shall be rendered within 90 days of the date of its constitution. If there are special circumstances justifying an extension, the Secretary-General may, at the request of the sole arbitrator, approve a suitable extension of the time limit.
Article 50: Application of Other Provisions of these Rules
For matters not covered in this Chapter, the other relevant provisions of these Rules shall apply.
Chapter VIII: Special Provisions for International Commercial Arbitration
Article 51: Application of this Chapter
(1) Unless otherwise agreed by the parties, the provisions of this Chapter shall apply to international commercial cases. For matters not covered in this Chapter, the other relevant provisions of these Rules shall apply.
(2) Cases relating to Hong Kong SAR, Macao SAR and the Taiwan region may be handled by reference to the provisions of this Chapter.
(3) Any dispute between the parties as to the existence of international elements shall be referred to the Arbitral Tribunal for a decision.
Article 52: Composition of Arbitral Tribunal
(1) Within 20 days of the receipt of the notice of arbitration, the parties shall, pursuant to the provisions of Article 18, nominate or entrust the Chairman to appoint their arbitrators and jointly nominate or jointly entrust the Chairman to appoint a third arbitrator who shall be the presiding arbitrator.
(2) If the parties fail to jointly nominate the presiding arbitrator in accordance with the provisions of the preceding paragraph, the presiding arbitrator shall be appointed by the Chairman.
Article 53: Defence and Counterclaim
(1) Within 45 days of the receipt of the Request for Submission of Defence, the Respondent shall submit to the BAC its Statement of Defence and any relevant supporting document.
(2) The Respondent shall also submit its Counterclaim in writing, if any, within 45 days of the receipt of the Request for Submission of Defence.
Article 54: Preservation of Property and Evidence
(1) If a party applies for an order for the preservation of property, the BAC shall submit the application to the Intermediate Peoples Court of the place where the Respondent is domiciled or where the Respondents property is situated.
(2) If a party applies for an order for the preservation of evidence, the BAC shall submit the application to the Intermediate Peoples Court of the place where the evidence is located.
Article 55: Notice of Hearing
(1) The Arbitral Tribunal shall notify the parties of the date of the hearing at least 30 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 hearing, at least 12 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 30-day requirement.
Article 56: Conciliation
(1) The Arbitral Tribunal may, with the consent of both parties, conduct conciliation of the case.
(2) If, upon the termination of unsuccessful conciliation proceedings, both parties request a replacement of an arbitrator on the ground that the results of the award may be affected by the conciliation proceedings, the Chairman may approve the request. The resulting additional costs shall be borne by the parties.
Article 57: Time Limit for the Award
The Arbitral Tribunal shall render its award within 6 months of the date of its constitution. If there are special circumstances justifying an extension, the Secretary-General may, at the request of the presiding arbitrator, approve a suitable extension of the time limit.
Article 58: Applicable Law
(1) The Arbitral Tribunal shall apply the law agreed upon by the parties to the merits of the dispute. Unless otherwise agreed by the parties, the agreed applicable law refers to the substantive rules of law but not the rules of conflict of laws.
(2) In the absence of an agreed choice of law, the Arbitral Tribunal shall apply the lawwith which the dispute has the closest connection.
(3) In all cases, the Arbitral Tribunal shall decide the case in accordance with the terms of the valid agreement and take into account the relevant trade usages.
Article 59: Application of Summary Procedure
Where a case falls within the scope of Article 44, the relevant provisions on Summary Procedure in Chapter VII shall be applicable.
Chapter IX: Supplementary Provisions
Article 60: Calculating Time Limits
(1) A period of time specified in or fixed in accordance with these Rules shall start to run on the day following the date on which such period commences. The day on which such period commences does not form part of the period of time.
(2) If the day following the date on which the period of time commences is an official holiday or a non-business day at the place of the addressee, the period of time shall begin to run on the first following business day. Official holidays or non-business days occurring within such period are included in calculating the period of time. If the last day of the relevant period of time falls on an official holiday or a non-business day, the period of time shall expire on the first following business day.
(3) Time for delivery shall not be included in the period of time. Any arbitral document, notice or material that has been mailed or dispatched prior to expiry of the period of time shall not be regarded as overdue.
(4) If a party breaches a time limit because of force majeure events or other justifiable reasons, it may apply for an extension of time within 10 days of the removal of the obstacle. The BAC or the Arbitral Tribunal shall decide on the request.
Article 61: Service
(1) All relevant arbitral documents, notices and other materials may be served on the parties or their authorized representatives in person or by mail, courier, telex, facsimile or any other means that the BAC or the Arbitral Tribunal considers appropriate.
(2) An arbitral document, notice and material shall be deemed to have been served if it has been delivered to the addressee in person or by mail to the addressees place of business, place of habitual residence or other mailing address provided by the addressee or the counterparty.
(3) In relation to domestic cases, if service cannot be effected by the means described above, it shall be deemed to have been effected if the party effecting the service leaves the document, notice or material at the last known place of business, place of habitual residence or other mailing address of the addressee in the presence of a notary. Service may also be effected by way of a public notice and shall be deemed to have been effected 60 days after issuance of such a notice.
(4) In relation to international commercial cases, if despite reasonable inquiries, the addressees place of business, place of habitual residence or other mailing address cannot be found, service shall be deemed to have been effected if the document, notice or material is delivered to the addressees last known place of business, place of habitual residence or other mailing address by mail, courier or by any other means of delivery with proof of attempt to deliver.
Article 62: Language
(1) Chinese is the official language of the BAC. If the parties have agreed otherwise, their agreement shall prevail.
(2) If translation services are required by the parties or their authorized representatives or witnesses during hearings, translators may be provided by the BAC or by the parties themselves. The parties shall bear the cost of translation.
Article 63: Interpretation of the Rules
The power to interpret these Rules is vested in the BAC.
Article 64: Official Versions of the Rules
Each of the Chinese, English and other language versions of the Rules published by the BAC is official. In the event of any conflict between the different versions, the Chinese version shall prevail.
Article 65: Implementation of the Rules
These Rules are effective as of March 1, 2004. For cases accepted by the BAC before these Rules came into effect, the Arbitration Rules effective at the time of such acceptance shall apply. In such a case, these Rules may apply if the parties so agree and the BAC consents.