- Categories:Apply for mediation
- Time of issue:2021-08-11 16:15:31
Mediation rules of Shenzhen Qianhai international commercial mediation center (for Trial Implementation)
(these rules were deliberated and adopted by the first Council of Shenzhen Qianhai international commercial mediation center on August 15, 2020 and shall enter into force as of the date of promulgation)
Chapter I General Provisions
Article 1 These rules are formulated in accordance with relevant laws, regulations and judicial reform policies, with reference to Hong Kong, Macao and international practices, in order to improve commercial mediation procedures, standardize commercial mediation activities, timely, independently, impartially and effectively help the parties solve commercial disputes, promote the harmonious and lasting commercial relations between the parties, and maintain a normal and orderly commercial legal order.
Article 2 the term "mediation" as mentioned in these Rules refers to the activities of Shenzhen Qianhai international commercial mediation center (hereinafter referred to as the "mediation center") to organize and hire registered mediators to use persuasion, persuasion and other methods to promote the parties to voluntarily reach a mediation agreement and solve commercial disputes on the basis of equal consultation.
The term "mediator" as mentioned in these Rules refers to the professional personnel selected by the mediation center according to the specified conditions and procedures to provide commercial mediation services for the parties.
The mediation center and its mediators shall carry out mediation activities in accordance with these rules and shall be protected by law. No unit or individual may illegally intervene.
Article 3 These Rules shall apply to the mediation of commercial disputes between the following parties:
（ 1） Commercial disputes in which all parties are mainland enterprises, institutions and natural persons;
（ 2） Commercial disputes in which one or both parties are enterprises, institutions and natural persons in Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan;
（ 3） A commercial dispute in which one or both parties are foreign enterprises, institutions or natural persons.
The commercial disputes mentioned in the preceding paragraph include disputes in trade, investment, M & A, finance, securities, insurance, intellectual property, real estate, engineering construction, transportation and other commercial and maritime fields.
Article 4 when conducting mediation activities, the mediation center and its mediators shall abide by the following principles:
（ 1） Mediation shall be conducted on the basis of voluntariness, equality and truthfulness of the expression of will of the parties;
（ 2） It does not violate the applicable laws, regulations, policies and international practices for dispute settlement;
（ 3） When presiding over mediation, mediators shall adhere to principles, be fair, be diligent and dutiful, and abide by the obligation of confidentiality;
（ 4） Respect the rights of the parties, and shall not prevent the parties from safeguarding their rights through arbitration, judicature and other channels according to law due to mediation.
One belt, one road, fifth disputes involving cross-border commercial disputes in the construction of the bay area of Guangdong, Hong Kong and Macao, involving the international commercial disputes on the "one belt and one way" construction, and the commercial disputes between the parties for foreign enterprises, institutions and natural persons, allowing the parties to choose laws applicable to the relevant countries and regions other than Chinese laws, except for the mandatory provisions of China's laws.
Article 6 where the parties agree to submit the dispute to the mediation center for mediation, they shall be deemed to have agreed to the mediation center for mediation in accordance with these rules. Upon the consensus of the parties concerned, the provisions of these rules may be selected or the relevant provisions of these rules may be changed as needed, except in violation of the relevant mandatory provisions of Chinese laws and regulations.
Matters not specified in these Rules shall be agreed by the parties or determined by the mediation center through consultation with the parties.
Article 7 with the consent of the parties, the mediation center may conduct joint mediation with other dispute resolution institutions; It may also accept the entrustment of the people's court, arbitration commission or other dispute resolution institutions to mediate or assist in mediation.
Chapter II Rights and obligations of the parties
Article 8 the parties shall enjoy the following rights in mediation activities:
（ 1） Accept and participate in mediation voluntarily, equally and without coercion;
（ 2） Choose mediators independently or entrust the mediation center to appoint mediators;
（ 3） Obtain case facts, disputed matters, evidence materials and mediation progress information;
（ 4） Independently express their demands, fully state their reasons, and put forward dispute resolution solutions or suggestions;
（ 5） Voluntarily reach a mediation agreement;
（ 6） Request to suspend the mediation meeting or terminate the mediation proceedings;
（ 7） Apply for the mediator to avoid or complain about the illegal acts of the mediator;
（ 8） Other rights conferred on the parties by laws, regulations and these rules.
Article 9 the parties shall perform the following obligations in mediation activities:
（ 1） Abide by the principle of good faith;
（ 2） Abide by the mediation order and respect the work of mediators;
（ 3） Shall not provide false case information and evidence materials;
（ 4） Shall not maliciously delay or hinder the progress of mediation procedures;
（ 5） The proposed dispute resolution scheme shall not violate the mandatory provisions of laws and regulations, and shall not infringe on the interests of others and public interests;
（ 6） Respect the exercise of rights by the other party;
（ 7） Abide by mediation confidentiality provisions and relevant agreements;
（ 8） Other obligations to be observed in accordance with laws, regulations and these rules.
After the commencement of mediation proceedings, the parties shall automatically suspend or suspend the commercial acts or proceedings related to the dispute to the extent permitted by law.
Chapter III mediation services and obligations of mediators
Article 10 the mediation center and its mediators shall provide the following mediation services to the parties:
（ 1） Examine and accept mediation applications;
（ 2） Guide the parties to choose mediators independently or appoint mediators entrusted;
（ 3） Organize and carry out mediation activities in accordance with these rules and maintain mediation order;
（ 4） Urge the parties to form a dispute resolution scheme on the basis of equal consultation, mutual understanding and mutual accommodation, and help the parties voluntarily reach a mediation agreement;
（ 5） Urge the parties to consciously perform the mediation agreement;
（ 6） After the mediation fails, guide the parties to seek other ways of dispute resolution according to law;
（ 7） Other services related to promoting the success of mediation.
The mediation center shall provide necessary conditions, services and guarantees for mediators to perform their duties and carry out mediation, and manage and supervise mediation activities.
Article 11 a mediator shall abide by the following provisions when presiding over mediation:
（ 1） These rules and the mediator's code shall not be violated;
（ 2） There shall be no acts of favoritism, misleading, deception or coercion against the parties;
（ 3） Shall not ask for or accept the property of the parties or seek other illegitimate interests through mediation;
（ 4） The parties shall not be forced or induced to reach a mediation agreement;
（ 5） The parties shall not be prevented from safeguarding their rights through other dispute resolution channels according to law due to mediation or failure of mediation;
（ 6） It shall not disclose the facts of the dispute case, mediation information, the privacy and trade secrets of the parties, unless otherwise provided by law;
（ 7） Other obligations that shall be performed according to laws, regulations and these rules.
Article 12 If a mediator is complained by the parties for violating these rules and the mediator code, the mediation center shall order him to correct in time; If the circumstances are serious, the mediation center shall dismiss them in accordance with the prescribed procedures. If a mediator violates laws and regulations and causes losses to the parties, the parties may investigate his legal responsibility according to law.
The mediator and the mediation center shall not be liable for the consequences of mediation in accordance with these rules except for intentional or gross negligence violations of laws and regulations.
Chapter IV mediation procedures
Section 1 acceptance of cases
Article 13 Where the parties have agreed on Mediation in the dispute resolution clauses of the contract, or agree to resolve the dispute by mediation after the dispute occurs, one or both parties may apply to the mediation center for mediation.
If there is no mediation agreement between the parties, one party may also apply to the mediation center for mediation, but the mediation can be accepted only with the consent of the other party.
Article 14 when applying for mediation, the parties shall submit the following materials to the mediation center:
（ 1） Application for mediation. The application shall state:
1. The name (name), legal representative, domicile, mailing address and contact information of the applicant and the respondent;
2. The willingness of both parties to voluntarily accept mediation or the willingness of both parties to unilaterally request mediation;
3. Case facts, disputed matters, mediation demands and their justifications;
4. Other issues to be explained.
（ 2） Evidence materials and other relevant supporting documents.
（ 3） If an agent is entrusted, a written power of attorney shall be submitted.
Article 15 if the mediation center receives mediation application materials and considers them to meet the acceptance conditions after examination, it shall timely serve the acceptance notice and application materials on the respondent; The respondent shall, within 10 working days from the date of receiving the materials, notify the mediation center in writing of its opinions on agreeing or disagreeing with the mediation; Failure to inform within the time limit shall be deemed as refusal of mediation.
If the respondent agrees to mediation, the mediation center shall prepare an acceptance decision and deliver it to the mediation applicant and respondent in time.
If the mediation center decides to accept the case, it shall register the mediation case.
Article 16 after receiving the acceptance decision, the mediation applicant and the respondent shall pay the mediation registration fee to the mediation center in accordance with the provisions.
Article 17 The Mediation Center shall not accept a dispute applying for mediation under any of the following circumstances:
（ 1） Cases that cannot be settled by mediation according to Chinese laws and regulations;
（ 2） Cases not accepted by the mediation center;
（ 3） Cases in which the respondent fails to inform the opinions or explicitly refuses to mediate within the specified time limit.
For a case that is not accepted, the mediation center shall prepare a notice of rejection and deliver it to the mediation applicant and the respondent in time.
If one or both parties refuse to pay the mediation registration fee, the mediation center may withdraw the acceptance decision.
Section II Selection and appointment of mediators
Article 18 when serving the acceptance decision, the mediation center shall also inform the parties concerned that, within 10 working days from the date of receiving the acceptance decision, the mediation center shall independently select mediators from the list of mediators of the mediation center, or entrust the mediation center to appoint mediators in accordance with the provisions of this section.
Article 19 for the mediation of general dispute cases, a mediator may be selected or appointed as the sole mediator.
For the mediation of major and difficult disputes or cases with great difficulties in applicable law, professional field, technical factors, working language, etc., after the agreement of the parties or the proposal of the mediation center and the consent of the parties, multiple mediators can be selected or designated to participate in the mediation.
If more than one mediator is selected or appointed, the mediation center shall appoint one of them as the chief mediator.
Article 20 the selection or appointment of mediators shall be made from those mediators who have the qualifications, expertise, mediation experience, working language and other conditions and abilities required for mediating the case.
The roster of mediators shall contain the practicing (Professional) qualifications, professional and technical positions, professional fields and working languages of mediators.
Article 21 for the selection of mediators, both parties shall independently select at least two or more candidates from the list of mediators. According to the agreed number, the mediation center shall determine one or more candidates selected by both parties as mediators of the case.
If the candidates selected by the parties do not coincide or the number of coincides is insufficient, the mediation center shall appoint one or more mediators as mediators of the case, subject to the consent of the parties.
The parties may give up their own choice and jointly entrust the mediation center to appoint a mediator of the case.
Article 22 the parties may, according to the needs of dispute settlement and with the consent of the mediation center, jointly select professionals other than the roster of mediators to serve as interim mediators in the case.
An interim mediator shall have the same rights and obligations as a registered mediator in mediating disputes.
Article 23 If a mediator accepts the selection of the parties or the appointment of the mediation center, he shall make a guarantee that he can fully perform his duties, and disclose whether there are circumstances that may affect his independence and impartiality of mediation.
If a mediator is unable to perform his duties under the circumstances specified in the preceding paragraph, he shall timely inform the mediation center, which shall arrange to re select or appoint a mediator.
Article 24 If the selected or appointed mediator is under any of the following circumstances, he shall withdraw on his own initiative, and the parties may also apply for his withdrawal:
（ 1） Is a party to the case or a close relative of the party or agent;
（ 2） Having an interest in the case;
（ 3） Having other relations with the parties to the case, which may affect their independence and impartiality of mediation.
The withdrawal of the mediator shall be reviewed and decided by the mediation center, and the mediator shall be re selected or appointed.
If the withdrawal of the mediator occurs after the commencement of the mediation procedure, the new mediator shall consult with the mediation center to determine whether the procedure has been effective.
Article 25 If the mediation center accepts the entrustment of the people's court, arbitration commission or other dispute settlement institution to mediate a dispute case, the selection or appointment of mediators shall be handled in accordance with the provisions of this section.
If the mediation center is invited to jointly mediate a dispute case with relevant dispute resolution institutions, the mediators participating in the mediation shall be designated by the mediation center.
Section III Procedures and methods of mediation
Article 26 a mediator shall start mediation procedures within 10 working days from the date of accepting the selection or appointment.
At the beginning of mediation, the mediator shall inform the parties orally or in writing of the nature of mediation, mediation procedures, legal consequences of mediation, rights and obligations of the parties, but shall not make any commitment or guarantee for the mediation results.
Article 27 mediation meetings are generally arranged at the place where the mediation center is located.
If the parties agree otherwise, or the mediator is for the convenience of the parties and with the consent of the parties, the mediation meeting may be held at the place provided by the parties or at a place other than the mediation center. The expenses arising therefrom shall be borne by the proposing party or equally by both parties.
Article 28 the language used in mediation work shall be determined by the parties concerned through consultation according to their needs; If the negotiation fails, the mediator shall consult with the mediation center for confirmation.
If a party requests to provide translation services for the terms of mediation work, the required translation shall be hired by the party or entrusted to the mediation center, and the cost of employing the translation shall be borne by the party.
Article 29 before convening a mediation meeting, a mediator shall understand the points
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