Resolution of Economic Disputes: Administrative Reconsideration
1. Composition of arbitral tribunals
An arbitral tribunal refers to an organization consisting of an arbitrator or arbitrators selected by the parties or designated by the chairman of the arbitration commission to hear and make an award in accordance with the arbitration procedure for a case submitted by the claimant for arbitration. An arbitral tribunal may be composed in two forms. The first is a collegial arbitral tribunal composed of three arbitrators, with one of them as the chief arbitrator. The second is a sole arbitral tribunal composed of one arbitrator. If an arbitral tribunal consists of a sole arbitrator, the parties shall jointly select or request the chairman of the arbitration commission to appoint a sole arbitrator. After an arbitral tribunal has been established, the arbitration commission shall notify the parties in writing of the composition of the arbitral tribunal.
An arbitrator shall be removed from the case in accordance with the law under the legal circumstances where the fairness of the arbitration may be affected. An arbitrator shall be removed from the case, and either party may challenge an arbitrator, if the arbitrator: ① is a party to the case or a close relative of either party or either party's representative; ② has an interest in the case; ③ is otherwise related to either party or either party's representative, which may affect the impartiality of the arbitration; or ④ has privately met with or accepted any hospitality or gift from either party or either party's representative.
A challenge to an arbitrator shall be filed before the first hearing, stating the reasons for the challenge. Where the reasons for challenge become known to the challenging party after the first hearing, the challenge may be filed before the closing of the last hearing. Whether an arbitrator is to be removed from a case shall be decided by the chairman of the arbitration commission, or collectively decided by the arbitration commission if the chairman serves as an arbitrator of the case. Where a new arbitrator has been selected or appointed after the removal of an arbitrator, the arbitral tribunal may decide, at its sole discretion, whether to repeat the proceedings at the request of either party or on its own initiative.
2. Hearing and award
A hearing shall be held for arbitration unless the parties agree not to hold a hearing, in which case the arbitral tribunal may make an award according to the request for arbitration, the answer, and other submissions. Arbitration proceedings shall not be conducted in public unless the parties agree that they may take place in public and no state secrets are involved. The arbitral tribunal may, when it deems it necessary, collect relevant evidence on its own initiative. Specialized issues can be referred to an appraisal institution for appraisal. The parties may debate in an arbitration proceeding. At the closing of the debate, the chief arbitrator shall seek the final comments from the parties. The arbitral tribunal may conciliate the dispute before making an award. Where conciliation fails, an award shall be made in a timely manner. An award shall be made in accordance with the opinions of the majority of arbitrators, and shall take legal effect as of the date of its making. An arbitration award made by the arbitral tribunal is final, and no individual or entity may modify it without legal procedures.
In order to ensure the accuracy and legality of arbitration awards and protect the legitimate rights and interests of the parties, the principle of correcting any errors must be followed. The first paragraph of Article 58 of the Arbitration Law states, "After an arbitration commission makes an award, either party may file a petition for vacation of the award to the intermediate people's court in the jurisdiction where the arbitration commission is located if the party has evidence to prove that: (I) the award was made in the absence of an arbitration agreement; (II) the issues decided in the award do not fall within the scope of the arbitration agreement or under the jurisdiction of the arbitration commission; (III) the composition of the arbitral tribunal or the arbitration proceeding violated the procedure established by law; (IV) the evidence relied upon by the arbitral tribunal when making the award was falsified; (V) the other party concealed any evidence which was sufficient to affect the impartiality of the award; or (VI) the arbitrator or arbitrators making the award solicited or accepted bribes, committed malpractices for personal gain, or perverted the law in making the award. "Where a people's court holds that re-arbitration is feasible after it has accepted a petition for vacation of an award, it shall notify the arbitral tribunal to re-arbitrate the case within the time period specified and make an order to suspend the vacation procedure. Where the arbitral tribunal refuses to re-arbitrate the case, the people's court shall make an order to proceed with the vacation procedure.
Practising lawyers
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Robert Zhang
An international lawyer registered in Shanghai, China. Master's degreePublish…
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Steve Li
An international lawyer registered in Shanghai, China. Master's degreePublish…
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