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Arbitration

Updated: Jun 20, 2017 english.legalinfo.gov.cn Print

1.Conditions for applying arbitration when civil and commercial disputes take place and the writing of the application

According to the relevant provisions of the Arbitration Law, when foreigners in China come across civil and commercial disputes or economic disputes and apply for arbitration in China, the application shall meet the following conditions in accordance with law: (1) there is an arbitration agreement; (2) with the request for arbitration and the specific facts and reasons; (3) falling into the scope of the arbitration commission acceptability. Here the arbitration commission refers to a foreign-related arbitration commission.

To apply for arbitration, foreigners in China shall submit the arbitration agreement and the arbitration application with copies to the arbitration commission in accordance with the law. The arbitration application shall specify the following items: (1) the name, gender, age, occupation, work unit and domicile of each party, or the name and domicile of legal persons or other organizations, and the name and position of legal representative or the principal person; (2) the arbitration request and the facts and reasons on which it is based; (3) the evidence and its source, and the name and domicile of witnesses.

2.Solution to the challenge to the arbitration agreement by the parties concerned

According to the Arbitration Law, if a party challenges the validity of the arbitration agreement, he may request the arbitration commission to make a decision or apply to the people's court for a ruling. If one party requests the arbitration commission to make a decision, and the other party applies to the people's court for a ruling, the people's court shall make a ruling.

3.Circumstances where foreigners in China can apply for arbitration for labor disputes with their employing units within the territory of China

According to the Law on Labor Dispute Mediation and Arbitration, where a dispute arising between foreigners in China and their employing units within the territory of China, foreigners in China can apply for arbitration in accordance with the law. Labor disputes which can be submitted for arbitration include the following types: (1) disputes arising from the confirmation of labor relations; (2) disputes arising from the formation, performance, alternation, cancellation and termination of labor contracts; (3) disputes arising from dismissing, firing an employee or an employee quitting or leaving his job; (4) disputes arising from working hours, rest and vacation, social insurance, welfare benefits, training and work protection; (5) disputes arising from payment of labor remuneration, medical expenses for work-related injury, economic compensation or damages, etc.; (6) other labor disputes prescribed by laws and regulations.

4.Provisions on foreigners in China applying for arbitration for labor disputes with their employing units within the territory of China

According to the Law on Labor Dispute Mediation and Arbitration, if foreigners in China apply for arbitration, he shall apply within one year from the date he knows or should know that his rights are infringed. The one year limitation period for arbitration here shall be interrupted, as foreigners in China claim their rights against their employing units or request to the relevant authorities for remedy, or the employing units agree to fulfill their obligations. The limitation period for arbitration shall be calculated anew from the time of interruption. Where due to force majeure or other justified reasons, foreigners in China are unable to apply for arbitration within the one year limitation period for arbitration, the limitation period for arbitration shall be suspended, and the limitation period for arbitration shall continue to calculate from the date when the reasons for suspension are eliminated. During the duration of labor relations, where a dispute arising from default in payment of labor remuneration by employing units, the application for arbitration shall not be restricted to the one year limitation period for arbitration. To apply for arbitration, foreigners in China shall submit a written application and submit copies of application according to the number of the respondents.

According to Chinese law, where foreigners in China apply for labor dispute arbitration, the arbitration tribunal will apply the Arbitration Law and the Law on Labor Dispute Mediation and Arbitration.

5.Conditions for agents in the application for labor dispute arbitration

Arbitration agents include legal arbitration agents and commissioned arbitration agents. According to the relevant provisions of the Arbitration Law and the Civil Procedure Law, when foreigners in China apply for labor dispute arbitration, he may appoint lawyers or other agents. Where a lawyer agent is appointed to participate in the arbitration, the lawyer must be a Chinese lawyer.

6.Rights may be exercised by foreigners in China during the hearing of the arbitration tribunal after the application for labor dispute arbitration is submitted

According to the relevant provisions of the Arbitration Law and the Civil Procedure Law, after foreigners in China apply for labor dispute arbitration, they may exercise the following rights during the hearing of the arbitration tribunal: (1) provide evidence in support of their claims; (2) request expert witnesses to appear in court, and with the permission of the arbitration tribunal, may question the expert witnesses; (3) conduct cross-examination of the evidence presented by the employing unit or by the arbitration tribunal; (4) may apply to the arbitration tribunal for evidence preservation under the circumstances where the evidence may be destroyed or lost or difficult to obtain at a later time; (5) debate with the employing unit; (6) at the end of the debate, may express his final opinion; (7) apply for supplementation or correction to the record of their own statement; (8) reach a settlement with the employing unit; (9) carry out reconciliation prior to the issuing of arbitration award; (10) other rights prescribed by laws and regulations.

7.Conditions for advanced execution during the period of labor dispute arbitration

According to Chinese law, foreigners in China may apply for advanced execution during the period of labor dispute arbitration.

To apply for advanced execution should meet the following conditions: (1) the arbitration cases must be cases for reimbursed labor remuneration, medical expenses for work-related injury, or economic compensation or damages; (2) the rights and obligations of parties of arbitration are clear; (3) without advanced execution would seriously affect the applicant's life.

8.Conditions for applying the order of payment to a people's court when disputes arising from labor relations with employing units

According to Chinese law, foreigners in China can apply to a People's Court for the order of payment when foreigners in China have disputes with employing units within the territory of China, but must meet the following conditions:

(1) The object the foreigners in China request employing units to pay must be money and negotiable securities such as bills of exchange, promissory notes, checks as well as stocks, bonds, treasury bills, transferrable certificates of deposit;

(2) The money or negotiable securities being requested to pay is due and the amount is certain, and the request has stated the facts and evidence which is based on;

(3) There is no other payment obligation between the foreigners in China and the employing units, and it means that there is no other debt dispute between them;

(4) The order of payment must be able to be delivered to the employing units.

After the people's court issued the order of payment to the employing unit, if the employing unit does not protest it, the people's court may compulsorily enforce the order of payment. If the employing unit thinks that there is an error in the order of payment, it can submit a written objection to the people's court within fifteen days from the receipt of the order of payment, and the court will rule to put an end to the supervising and urging procedure, and the order of payment shall become invalid. At this time, foreigners in China may file a lawsuit.

9.Circumstances where the parties concerned may apply to a people's court for cancellation of the arbitration award

According to Chinese laws, for the arbitration award made by a foreign-related arbitration organization in China, if foreigners in China provide evidence to prove the arbitration award has any of the following situations, the people's court at or above the intermediate level at the place where the foreign-related arbitration organization locates can form a collegial panel to review and check it and rule to cancel the arbitration award:

(1) There is no arbitration clause in the contract between the foreigners in China and the employing units or there is no written arbitration agreement reached afterwards by the parties;

(2) The foreigners in China did not receive the notice of appointing arbitrators or arbitration proceedings, or the foreigners in China failed to express opinions due to other reasons not belonging to the foreigners in China;

(3) The composition of the arbitration tribunal or the arbitration procedures were not in conformity with the arbitration rules;

(4) The matters arbitrated do not fall into the scope of the arbitration agreement or are which the arbitral organ is not empowered to arbitrate.

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