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Shanghai Arbitration Association-Ad Hoc Arbitration Rules

Ad Hoc Arbitration Rules

Chapter I. General Provisions
Article 1 Purpose of Rules
In order to promote the handling of disputes between the parties concerned in an impartial and efficient manner by means of ad hoc arbitration, the Shanghai Arbitration Association (“SHAA”) hereby makes these Ad Hoc Arbitration Rules of the Shanghai Arbitration Association (these “Rules”) for parties to ad hoc arbitration to select and apply.
Article 2 Principles of Ad Hoc Arbitration
Ad hoc arbitration administered in accordance with these Rules shall adhere to the principles of independence and justice, Ex Aequo et Bono, autonomy of will and good faith.
Article 3 Scope of Application
1. Where the parties have agreed that contract disputes, other disputes over property rights and interests, and other disputes that the parties have the right to settle shall be referred to arbitration under these Rules, these Rules shall apply. 2. In the event of any conflict between these Rules and the mandatory provisions of the laws of the seat of arbitration, the laws of the seat of arbitration shall prevail, but the application of other provisions shall not be affected. 3. Where the parties have agreed on any modification or alteration of these Rules, the parties’ agreement shall prevail unless such agreement is inoperative or in conflict with any mandatory provisions of the laws of the seat of arbitration.
Article 4 Ad Hoc Arbitration Agreement
1. The parties may agree to initiate ad hoc arbitration in case of contract disputes, other disputes over property rights and interests, and other disputes for which the parties have the right to settle, or agree to initiate ad hoc arbitration in respect of such disputes after the occurrence of such disputes. 2. An ad hoc arbitration agreement shall be in writing. Written forms shall include, but not limited to, a written contract, letter, telegram, telex, facsimile, email, electronic data interchange, or any other form that can tangibly express the contents it carries. 3. An ad hoc arbitration agreement may be an independent arbitration agreement or an arbitration clause in a contract. 4. An ad hoc arbitration agreement shall be deemed to exist where its existence is asserted by one party and not denied by the other during the exchange of the statement of claim and the statement of defence. 5. An ad hoc arbitration agreement shall exist independently, and its validity shall be independent and separable from other clauses of the contract. The validity of an ad hoc arbitration agreement shall not be affected by any modification, transfer, cancellation, termination, expiry, invalidity, ineffectiveness, rescission or non-existence of the contract.
Article 5 Seat of Arbitration
1. The parties may agree on the seat of arbitration in writing. Where the parties have not agreed on the seat of arbitration or their agreement is ambiguous, but these Rules are applied, the seat of arbitration shall be Shanghai, China. 2. Where the place of hearing, meeting or deliberation is different from the seat of arbitration, it shall not be deemed as an alteration of the seat of arbitration. 3. The arbitration award shall be deemed to have been made at the seat of arbitration.
Article 6 Appointing Authorities
1. The parties may agree upon an appointing authority to facilitate the ad hoc arbitral proceedings and provide necessary services such as assistance in the composition of the arbitral tribunal, and etc. In the absence of an agreement or the agreement is unclear, a party may nominate the appointing authority at any time. 2. If all parties have not agreed on the choice of an appointing authority within fifteen (15) days after a proposal made pursuant to Paragraph 1 of this Article has been received by all other parties, either party may apply to the SHAA to designate an appointing authority. The SHAA may, as the case may be, serve as the appointing authority itself or designate another appointing authority. 3. Where these Rules provide for a period of time within which a party must refer a matter to an appointing authority and no appointing authority has been designated, the period shall suspend from the date on which a party initiates the procedure for designating an appointing authority until the date on which such designation is confirmed. 4. The parties may agree upon the scope of services of the appointing authority. If no agreement is reached between the parties, the appointing authority may provide one or more of the following services: (a) Assisting in the composition of the arbitral tribunal; (b) Secretary services of the arbitral tribunal; (c) Assisting in handling preservation and other provisional measures; (d) Collecting arbitration fees and other case financial management services; (e) Providing hearing rooms and hearing facilities and arranging the personnel for arbitration service such as interpreter and stenographer; Providing communication service and other services relating to the oral hearing; (f) File archive; (g) Other ad hoc arbitration services provided by the appointing authority upon the application of the parties concerned or when the arbitral tribunal deems necessary. 5. Where an appointing authority fails to act with respect to any matter within ten (10) days from the time limit stipulated in these Rules or agreed upon by the parties concerned, or an appointing institution fails to provide relevant ad hoc arbitration service, upon the application of a party concerned, the SHAA may, as the case may be, act as appointing authority by itself or appoint another appointing authority to replace the appointing authority, with the relevant time limit to recalculate.
Article 7 Service of Documents and Time Period
1. The parties may agree on the method and time period they deem appropriate to serve the arbitration documents, except where such method and time period are in conflict with mandatory provisions of the law of the seat of arbitration. If the parties fail to agree, the method and time period specified in these Rules shall apply. 2. All documents, notices and materials in relation to the arbitration may be served in person, or by registered post, express mail service, facsimile, electronic data transmission, or by other means of communication that can provide record of delivery, or by any other means considered as proper by the arbitral tribunal. 3. The arbitration documents shall be sent to the address provided by the parties or their representative(s) themselves, or to the address agreed upon by the parties. Where a party or its representative(s) has not provided the address or the parties have not agreed on the address, the arbitration documents shall be sent to the address provided by the other party or its representative(s). 4. The arbitration documents sent by one party or its representative(s) to the other party, which, after reasonable efforts, cannot be delivered to the addressee in person, or to the place of business, registration, domicile, habitual residence or postal address of the addressee, shall be deemed to have been properly served if delivered to the last known place of business, registration, domicile, habitual residence or postal address of the addressee by registered or express mail or other means that can provide a record of delivery (including but not limited to electronic data transmission). 5. The date of service pursuant to Paragraph 3 of this Article or the date deemed to be effectively served pursuant to Paragraph 4 of this Article shall be the date on which the party concerned receives or should have received the arbitration documents. For documents served by electronic means, the date of transmission shall be deemed the date of service. 6. The periods of time specified in these Rules shall commence on the following day of when the addressee receives or should have received the arbitration documents. 7. The parties shall promptly submit all documents to the other parties and the arbitral tribunal according to the time limit set forth in these Rules or as set forth by the arbitral tribunal.
Article 8 Language of Arbitration
1. Where the parties have agreed on the language of arbitration, the parties’ agreement shall prevail. 2. Where the parties have not agreed on the language of arbitration or their agreement is ambiguous, the arbitral tribunal shall, after its composition, determine the language of arbitration in a timely manner considering the specific circumstances of the case.
Article 9 Waiver of Right to Object
A party’s failure to object in a timely manner with respect to any non-compliance with these Rules or any requirement of the arbitration agreement shall be deemed to have waived its right to object, unless the party can prove that its failure to object is justified.
Article 10 Confidentiality
The parties, representatives, arbitrators, relevant staff members of the appointing authority and other participants of the arbitration shall keep the arbitral proceedings and contents confidential, unless otherwise agreed by the parties in writing.
Chapter II. Arbitration Procedure
Section 1 Commencement of Arbitral Proceedings
Article 11 Notice of Arbitration 1. The party initiating the arbitral proceedings shall be the claimant, and the other party shall be the respondent. 2. The arbitration shall be initiated by the claimant sending the notice of arbitration to the respondent, and the arbitral proceedings shall commence on the date on which the respondent receives the notice of arbitration. 3. The notice of arbitration shall include the following: (a) The expression of intention to submit the dispute for arbitration; (b) The name, contact information and other information necessary to identify the parties; (c) A reference to the arbitration agreement that is invoked; (d) The contract or other legal instruments in relation to which the dispute arises; (e) A brief description of the claim and an indication of the amount involved, if any; (f) The relief or remedy sought; (g) A proposal as to the number of arbitrators, language and seat of arbitration, if the parties have not previously agreed thereon. 4. The notice of arbitration may also include the following: (a) The proposal for designation of the appointing authority; (b) The proposal for appointment of arbitrator referred to in Paragraphs 1, 2 or 3 of Article 16 of these Rules. 5. The sufficiency of the notice of arbitration shall not impede the composition of the arbitral tribunal. A dispute on the notice of arbitration shall be decided by the arbitral tribunal. Article 12 Response to the Notice of Arbitration 1. The respondent shall respond in the notice of arbitration within fifteen (15) days from the date of receipt of the notice of arbitration. 2. The respondent shall respond to all the proposals raised by the claimant in the notice of arbitration. The response shall include the following items: (a) The name and contact information of the respondent; (b) Reply to the items of (c) to (g) of Paragraph 3 of Article 11 of these Rules. 3. The response to the notice of arbitration may also include: (a) An objection to the jurisdiction; (b) A proposal for the appointing authority; (c) A proposal for the selection of arbitrators in accordance with Paragraphs 1, 2 or 3 of Article 16 of these Rules. (d) A brief description of counterclaims, if any, including where relevant, an indication of the amounts involved, and the relief or remedy sought; 4. Any dispute concerning the respondent’s failure to respond to the notice of arbitration or concerning an incomplete or delayed response to the notice of arbitration, shall not affect the composition of the arbitral tribunal and shall ultimately be settled by the arbitral tribunal. Article 13 Arbitration Representatives The parties may appoint representatives, including but not limited to lawyers, to participate in the arbitral proceedings. If a party entrusts a representative or representatives, it shall submit an authorization document.
Section 2 Composition of Arbitral Tribunal
Article 14 Qualification of Arbitrators 1. The parties may agree on the qualification of the arbitrators. Where the parties have agreement on the qualification of the arbitrators, the agreement shall prevail except where there is conflict with the laws of the seat of arbitration. Where the parties have no agreement or their agreement is ambiguous, the qualification of the arbitrators shall be determined in accordance with the laws of the seat of arbitration. Where the laws of the seat of arbitration make no provision on the qualification of the arbitrators, upon the application of one party, the SHAA may determine the qualification of the arbitrators. 2. Where the parties have doubt on the qualification of the arbitrators, they may apply to the SHAA for determination. The determination of the qualification of the arbitrators by the SHAA based on prima facie evidence shall not prevent the parties from challenging the arbitrators in accordance with Paragraphs 1 and 2 of Article 19 of these Rules. Article 15 Number of Arbitrators Where the parties have agreed on the number of arbitrators, the agreement shall prevail, unless the laws of the seat of arbitration provide otherwise. In absence of the parties’ agreement, if the respondent does not respond to the claimant’s proposed number of arbitrators, and the amount in dispute at the time of commencing the arbitration does not exceed RMB 3,000,000, it shall be deemed that the parties agree to have a sole-arbitrator tribunal hear the case; if the amount in dispute exceeds RMB 3,000,000, it shall be deemed that the parties agree to have a three-arbitrator tribunal hear the case. Article 16 Nomination of Arbitrators 1. Composition of a sole-arbitrator tribunal (a) Unless otherwise agreed by the parties, where the arbitral tribunal is composed of a sole arbitrator, the parties may jointly nominate an arbitrator within fifteen (15) days from the date of the respondent’s receipt of the notice of arbitration. The arbitrator jointly nominated shall be the sole arbitrator. (b) Where the parties fail to nominate a sole arbitrator within the time limit, the appointing authority shall appoint an arbitrator upon the request of a party. Unless otherwise agreed by the parties, the appointing authority may, as the case may be, appoint the sole arbitrator directly or through the following ways: (1) The appointing authority shall send a list of at least three candidates for the sole arbitrator to the parties; (2) The parties may eliminate one or more candidates to whom they have objected and submit the retained list to the appointing authority within fifteen (15) days from the date on which they receive such list; (3) Upon expiration of the specified time limit, if there is only one common candidate in the parties’ retained lists, the appointing authority shall appoint that candidate as the sole arbitrator; if there are two or more common candidates in the parties’ retained lists, the appointing authority shall determine one of them as the sole arbitrator based on the specific circumstances of the case; (4) In the event of failure to appoint in the aforesaid way due to any reason, the appointing authority shall appoint the sole arbitrator. 2. Composition of three-arbitrator tribunal (a) Unless otherwise agreed by the parties, where the arbitral tribunal is composed of three arbitrators, the parties shall each nominate one arbitrator and jointly nominate the third arbitrator within fifteen (15) days from the date of receipt of the notice of arbitration by the respondent. The third arbitrator shall be the presiding arbitrator. (b) In the event that one of the parties fails to nominate an arbitrator within the prescribed time limit, either party may request the appointing authority in writing to appoint an arbitrator on its behalf. In the event that the parties fail to jointly nominate the presiding arbitrator within the prescribed time limit, the presiding arbitrator shall be nominated through consultation between the two arbitrators that have accepted the nomination. (c) In the event that the two arbitrators fail to agree upon the nomination of the presiding arbitrator within fifteen (15) days from the date of their acceptance of the nomination, the presiding arbitrator shall be appointed by the appointing authority upon the application of one party pursuant to item (b) of Paragraph 1 of this Article. 3. Where there are two or more claimants and/or respondents in an arbitration case, unless otherwise agreed by the parties, the claimant(s) and/or the respondent(s) shall each, through consultation, jointly nominate an arbitrator or jointly submit a list of candidates of the sole arbitrator or presiding arbitrator. 4. The appointing authority shall, within fifteen (15) days from the date of receipt of the application to nominate an arbitrator, the sole arbitrator or presiding arbitrator, make the relevant appointment, and notify the parties in writing thereof. The time limit for the appointing authority to appoint arbitrators may, under special circumstances, be extended for a period of no longer than ten (10) days. Article 17 Panel of Recommended Arbitrators 1. The SHAA provides and may timely adjust and update the SHAA panel of recommended arbitrators for ad hoc arbitration for selection by the parties. 2. The parties and the appointing authority may nominate or appoint arbitrators by the following means: (a) Nominate or appoint from the SHAA panel of recommended arbitrators for ad hoc Arbitration; (b) Nominate or appoint from the panel of arbitrators of the appointing authority. The parties may also nominate another arbitrator, provided that such person complies with Paragraph 1 of Article 14 of these Rules. Article 18 Disclosure 1. Upon accepting the nomination or appointment, each arbitrator shall sign a declaration of independence and impartiality, disclosing any circumstances that might give rise to reasonable doubt as to his or her independence or impartiality. 2. If any circumstance that needs to be disclosed arises during the arbitral proceedings, the arbitrator shall promptly disclose such circumstance in writing to the parties and other arbitrators. Article 19 Withdrawal 1. Upon receipt of an arbitrator’s declaration and/or disclosure, a party shall, within ten (10) days after the date of receipt, submit its written request that the arbitrator should withdraw on the grounds of the disclosed facts or circumstances. Where a party fails to raise a request for the arbitrator’s withdrawal within the above period of time, it may not subsequently request the arbitrator to withdraw on the basis of the matters disclosed by the arbitrator. 2. In any case where there is reasonable doubt about the impartiality or independence of the arbitrator, the parties shall raise the case within ten (10) days after learning the reason for the withdrawal, but not later than the beginning of the last oral hearing or the conclusion of the written hearing. 3. The withdrawal request raised by one party shall state the facts and reasons and include the relevant evidence, which will be forwarded to the other party and all members of the arbitral tribunal. 4. Where one party requests an arbitrator to withdraw and other parties agree to such request, the arbitrator who is being challenged shall withdraw. The arbitrator being challenged may voluntarily withdraw, in which situation it shall not be implied that the reasons for withdrawal have been established. 5. If the parties have a dispute over whether the arbitrator should withdraw, any party may, within twenty (20) days after filing the application for withdrawal, apply in writing to the appointing authority for a decision. 6. The appointing authority shall make a decision within twenty (20) days after receiving the challenge application for withdrawal from any party and inform the parties and the arbitral tribunal in writing. 7. Before the withdrawal is decided, the arbitrator may, at his or her own will, continue or suspend his or her participation in the arbitral proceedings. Article 20 Replacement of an Arbitrator 1. Where an arbitrator is prohibited by law from or in fact incapable of performing the duties, which seriously affects the arbitral proceedings, the arbitrator may voluntarily withdraw, and the parties may also request to replace the arbitrator. The presiding arbitrator or the arbitrator appointed by the other party may be replaced through negotiation with the other party. If the negotiation fails, an application for replacement may be submitted to the appointing authority. Replacement shall be decided by the appointing authority. 2. Where an arbitrator withdraws or is replaced during the arbitral proceedings, a substitute arbitrator shall be nominated or appointed pursuant to the same procedure that was applicable to the nomination or appointment of the replaced arbitrator. 3. After the replacement of the substitute arbitrator, the arbitral tribunal shall decide whether or not to re-arbitrate. Article 21 Continuation of Arbitration by Majority After the conclusion of the last oral hearing, if one of the arbitrators of the three-arbitrator tribunal is unable to participate in the panel and make an award or decision due to death, disappearance, incapacity or other reasons, the parties may jointly consult with the arbitral tribunal, and the two arbitrators shall continue the arbitral proceedings and make an award or decision.
Section 3 Hearing
Article 22 Methods of Hearing 1. Unless otherwise agreed by the parties, the arbitral tribunal may hear the case in such manner as it deems appropriate. The arbitral tribunal shall treat both parties equally, give both parties a reasonable opportunity to present and argue, avoid unnecessary delays and expenses, and ensure fair and effective procedures. 2. The arbitral tribunal shall hold oral hearings of the case. If the parties agree and the arbitral tribunal agrees, or if the arbitral tribunal considers it unnecessary to hold a hearing and obtains the consent of the parties, the hearing may be conducted solely on the basis of written documents. 3. Once the arbitral tribunal is constituted, it shall, in accordance with the opinions of the parties and the actual situation, convene a case management conference as soon as possible and determine the schedule of arbitral proceedings. The timetable of the arbitral proceedings shall include an opportunity for the parties to submit additional or further statements or responses. The arbitral tribunal may make arrangements for such procedural issues as scheduling an online hearing or a written hearing, and the scope and time of submission of evidence. 4. If an emergency arises that requires the arbitral tribunal to make an interim or partial award in respect of a particular claim, the parties may submit a written application to the arbitral tribunal stating the emergency, the request for the arbitral tribunal to make an interim or partial award and the facts and reasons relating thereto. The arbitral tribunal may make an interim or partial award with the consent of the other parties, or if the other parties do not agree, the arbitral tribunal may consider it necessary. 5. The arbitral tribunal may, after consultation with the parties, decide to extend or shorten the period of time provided for in these Rules or agreed upon by the parties, as required by procedure, in particular, in cases where an emergency requires an interim or partial award to be made first. 6. In hearing a case, the arbitral tribunal may issue a procedural order, a list of questions, a statement of terms of reference and convene a pre-tribunal conference. The arbitral tribunal may authorize the presiding arbitrator to make procedural arrangements for arbitral proceedings alone. Article 23 Statement of Claim 1. The claimant shall communicate its statement of claim in writing to the respondent and to each of the arbitrators within a period of time to be determined by the arbitral tribunal. The claimant may submit the statement of claim at the same time as the submission of the notice of arbitration, or the notice of arbitration provided in Article 11 of these Rules may be regarded as a statement of claim, provided that the notice of arbitration meets the requirements of Paragraph 2 of this Article. 2. The statement of claim shall include the following particulars: (a) Names of the parties, contact details and other information necessary to identify the parties; (b) The arbitral claims; (c) The facts and grounds on which the arbitral claims are based; (d) Evidence and relevant supporting materials. The statement of claim should be accompanied by all documents and other evidence relied upon by the claimant, or indicate an index of such evidence. Article 24 Statement of Defence 1. The respondent shall communicate its statement of defence in writing to the claimant and to each of the arbitrators within a period of time to be determined by the arbitral tribunal. The respondent may elect to treat its response to the notice of arbitration referred to in Article 12 as a statement of defence, provided that the response to the notice of arbitration complies with the requirements of Paragraph 2 of this Article. 2. The statement of defence shall reply to items (b) to (d) to be included in the statement of claim, in Paragraph 2 of Article 23. The statement of defence should be accompanied by all documents and other evidence relied upon by the respondent, or indicate an index of such evidence. 3. In its statement of defence, or at a later stage of the arbitral proceedings designated by the arbitral tribunal, the respondent may file a counterclaim. The counterclaim shall include the matters set forth in items (b) to (d) in Paragraph 2 of Article 23. 4. The failure of the respondent to defend or submit evidence shall not affect the continuation of the arbitral proceedings. Article 25 Objection to Arbitration Agreement and Jurisdiction 1. The arbitral tribunal has the power to determine the formation, validity of an arbitration agreement and its jurisdiction over an arbitration case. 2. An objection to the jurisdiction shall be raised in the statement of defence at latest or in the statement of defence to the counterclaim at latest if such objection is related to the counterclaim. However, an objection that the arbitral tribunal is exceeding the scope of its authority shall be raised within ten (10) days from the date on which the excess of its authority is known or should have been known. 3. The arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction. The appointment of an arbitrator or a substantive defence by a party shall not affect its right to object to jurisdiction. 4. Aforesaid objections include objections to a party’s standing to participate in the arbitration. 5. The arbitral tribunal shall make a decision on jurisdiction within twenty (20) days after receiving the parties’ jurisdiction objection. If the decision cannot be made in time, it may be extended by ten (10) days. 6. Where the objection involves substantive issues and a jurisdictional decision may need to be made in the final award, the jurisdictional decision may be made together in the final award, provided that the parties shall be informed in a reasonable manner. 7. The arbitral tribunal, having decided that it has no jurisdiction over an arbitration case, shall decide to dismiss the case. Article 26 Amendments to the Claim or the Counterclaim 1. The claimant may apply to amend its claim; the respondent may apply to amend its counterclaim. The arbitral tribunal has the power to reject an application to amend if it considers that such application for amendment is so late that it will delay the normal progress of the arbitral proceedings. 2. If the amended claim or counterclaim exceeds the jurisdiction of the arbitration agreement, the arbitral tribunal shall not hear it. Article 27 Joinder of Additional Parties 1. After the arbitral tribunal is constituted, a party may apply for an additional party under the same arbitration agreement to participate in the arbitration. The arbitral tribunal shall make a decision after it hears from all parties including the additional party if it considers the joinder necessary. The date on which the arbitral tribunal receives the application for an additional party shall be deemed to be the date on which the arbitration against the added party commences. 2. After the addition of a party, any party that does not participate in the proceedings for the nomination of an arbitrator shall be deemed to have waived this right, without prejudice to the right of that party to apply for the withdrawal of an arbitrator in accordance with Article 19 of these Rules. 3. The request for joinder shall contain the title of the existing arbitration case; the names, addresses, and contact details of all the parties involved, including the additional party; the arbitration agreement invoked to join the additional party as well as the facts and grounds the request relies upon; and the claim. The relevant evidence materials and other supporting documents on which the request is based shall be attached to the request for joinder. 4. The arbitral proceedings shall continue after the parties have been added, unless the arbitral tribunal decides otherwise. Article 28 Concurrent Hearings 1. The arbitral tribunal may hear two or more arbitration cases concurrently if the following conditions are met: (a) The subject matter of the arbitration cases are of the same kind or related; (b) Upon application of one party and consent of the other parties; (c) The composition of the arbitral tribunal is the same. 2. In the case of concurrent hearings, the arbitral tribunal may decide: (a) that the documents submitted by the parties in one arbitration shall be made available to the parties in the other arbitration; (b) that the evidence produced in one arbitration shall be accepted and admitted in the other arbitration, provided that all parties being given opportunities to comment on such evidence. Article 29 Preservation and Other Interim Measures 1. A party may apply to the court for preservation according to law, before commencement of arbitration or during arbitral proceedings. 2. If a party files an application for preservation with the arbitral tribunal, the arbitral tribunal shall promptly forward the application to the court with jurisdiction specified by the party. 3. The parties may, in accordance with law or by agreement, apply to the arbitral tribunal for one or more of the following interim measures: (a) Maintain or restore the status quo pending determination of the dispute; (b) Order a party to do a certain act or prohibit it from doing a certain act; (c) Preserve property to ensure enforcement of the arbitral award; (d) Others. 4. If the arbitral tribunal decides to grant an interim measure, it may require the applicant for the interim measure to provide appropriate security. 5. Interim measures may be granted in the form of decisions or interim awards. 6. The party requesting interim measures shall be liable for compensation, if the application for interim measures is wrong and damages are caused to the relevant parties, which may be made in the award after the other party makes a request and the arbitral tribunal hears the case. Article 30 Evidence 1. Each party shall bear the burden of proving the facts supporting its claim, counterclaim or defence. 2. The arbitral tribunal may specify a time period within which the parties shall produce evidence. If a party submits evidence after the time limit, the arbitral tribunal shall decide whether to accept it or not. 3. Where a case is examined by way of an oral hearing, the evidence shall be presented at the oral hearing and may be examined by the parties, unless otherwise agreed by the parties and with the consent of the arbitral tribunal. For evidence submitted after the oral hearing, the arbitral tribunal shall solicit opinions from the parties and may examine the evidence in writing and submit their opinions thereon in writing. Examination of evidence in writing shall be deemed to have been examined during the hearing. 4. The arbitral tribunal may, after hearing the views of the parties, decide on the rules of evidence to be applied in the case. 5. The parties may submit witness testimony, engage appraisers, experts or persons with special knowledge to issue expert reports or opinions or testify in oral hearings. The arbitral tribunal shall decide whether to accept such statements. Article 31 Oral Hearing 1. In the case of oral hearing, the arbitral tribunal shall notify the parties of the date, time and place of the hearing twenty (20) days in advance. Where a party concerned applies for postponement of the oral hearing, it shall submit an application for postponement of the oral hearing to the arbitral tribunal at least five (5) days in advance of the oral hearing and state the reasons therefor. The arbitral tribunal shall decide whether or not to postpone the oral hearing. The arbitral tribunal has the power to decide whether to accept an application for postponement of the oral hearing submitted after the above time limit. 2. Unless otherwise agreed by the parties, an oral hearing shall be held in private. 3. The arbitral tribunal may, after consulting the parties, decide on its own, in light of the specific circumstances of the arbitration case, to hold the hearing through on-site attendance, remote video and other appropriate electronic means of communication. 4. Witness, appraiser, expert or person with special knowledge shall be examined in manners and upon conditions determined by the arbitral tribunal. Article 32 Expert and Appraiser Appointed by the Arbitral Tribunal 1. Upon soliciting the views of the parties or upon the application of any party, the arbitral tribunal may appoint an independent expert or appraiser to issue written reports to the arbitral tribunal on specific issues in the case. 2. The expert or appraiser shall, before accepting his or her appointment, submit to the arbitral tribunal and the parties proof of his or her qualifications and a declaration of independence and impartiality. Where a party challenges the qualifications, impartiality or independence of an expert or appraiser, the arbitral tribunal shall have the power to decide whether to replace the expert or appraiser. 3. The arbitral tribunal has the power to request the parties, and the parties are also obliged, to deliver to or supply the expert or appraiser any relevant materials, documents, property, or physical objects for review, inspection or appraisal. 4. Copies of the expert’s or appraiser’s report shall be forwarded to the parties who shall have an opportunity to comment thereon. The parties shall have the right of access to any document on which the expert or appraiser has relied in the report. The expert or appraiser shall give a written explanation of the written opinions submitted by the parties in a timely manner. 5. At the request of any party, the expert or appraiser shall attend oral hearings, and be interrogated by the parties and the arbitral tribunal. Any party may appoint an expert, a person with special knowledge or a witness to appear before the hearing to give an opinion thereon. Article 33 Default 1. If the claimant fails to appear at a hearing without any justified reason, or withdraws from an on-going oral hearing without the permission of the arbitral tribunal, the claimant may be deemed to have withdrawn its application for arbitration; where the respondent has filed a counterclaim, the arbitral tribunal shall proceed with hearing the counterclaim and make an award. 2. If the respondent fails to appear at a hearing without any justified reason or withdraws from an on-going oral hearing without permission of the arbitral tribunal, the arbitral tribunal may proceed with the arbitration in the absence of the respondent and make an award; where the respondent has filed a counterclaim, the respondent may be deemed to have withdrawn its counterclaim. Article 34 Suspension of Arbitral Proceedings 1. The arbitral proceedings may be suspended where the parties jointly request or when one party requests with no other parties’ objection, or when other circumstances necessitating the suspension arise. 2. The arbitral proceedings shall resume as soon as the reason for the suspension disappears or the suspension period ends. 3. The suspension and resumption of the arbitral proceedings shall be determined by the arbitral tribunal. Article 35 Withdrawal of Claim 1. A party may withdraw its claim or counterclaim in its respective entirety. In the event that the claimant withdraws its claim in its entirety, the arbitral tribunal may proceed with determination on the counterclaim and render an arbitral award thereon. In the event that the respondent withdraws its counterclaim in its entirety, the arbitral tribunal may proceed with the determination on the claim and render an arbitral award thereon. 2. If both the claims and counterclaims are withdrawn, the arbitral tribunal may decide to terminate the arbitral proceedings and dismiss the case. 3. A party may be deemed to withdraw its claim or counterclaim if the party cannot proceed with the arbitral proceedings for reasons attributable to the party itself or relevant law provisions. 4. If the parties withdraw all their claims or counterclaims and apply for arbitration again, it shall not constitute res judicata or repeated arbitration. Article 36 Mediation/Conciliation 1. The parties may settle on their own, or the arbitral tribunal may conduct conciliation for the parties. 2. The principle of conciliation shall be voluntary. The arbitral tribunal may conduct conciliation at the request of the parties. 3. When the parties have reached a settlement agreement through conciliation by the arbitral tribunal or by themselves, they may request the arbitral tribunal to render an award or issue a conciliation statement in accordance with the terms of the reconciliation or settlement agreement. The conciliation statement and the award shall have the same legal effect and come into force upon signing by both parties. If the parties renege before the signing of the conciliation statement, the arbitral tribunal shall continue to render an award. 4. If the conciliation statement contains miscalculations, clerical errors, typographical errors or any errors or omissions of a similar nature, the arbitral tribunal shall make corrections. The parties also have the right to request correction within thirty (30) days after signing the conciliation statement. The modification of the conciliation statement shall be an integral part of the conciliation statement and shall become effective upon receipt by both parties. 5. Where conciliation is not successful, the arbitration procedure shall continue. Neither party may invoke any offers or counter offers, any facts recognized or denied, and any opinions expressed by either party in the process of conciliation as grounds for finding that party liable or waiving its rights in subsequent arbitral proceedings. Article 37 Early Dismissal 1. Any party may request for the early dismissal of a claim or counterclaim in whole or in part on the ground that the claim or counterclaim is manifestly without legal merit, or is manifestly outside the jurisdiction of the arbitral tribunal. 2. A request for early dismissal shall be in writing and shall state its factual and legal grounds. The arbitral tribunal may require the requesting party to provide justification for the request and to demonstrate that the early dismissal process will expedite the entire arbitral proceedings, thereby preventing the abuse of the request to prolong the arbitral proceedings. A request for early dismissal by the parties shall not prevent the arbitral tribunal from proceeding with the arbitration. 3. The parties shall request for an early dismissal as early as possible. 4. The arbitral tribunal shall have the power to decide on whether to accept a request for early dismissal after inviting the parties to express their views. 5. The arbitral tribunal shall render a decision or an award on the request for early dismissal with reasons stated within thirty (30) days from the date on which such request is made. The arbitral tribunal may extend the period of time if it considers such extension justified and necessary. 6. Where the arbitral tribunal renders an award granting the request for early dismissal, in whole or in part, such award shall not prevent the arbitral tribunal from continuing the hearing of other claims and counterclaims, if any.
Chapter III. Arbitral Award (Decision)
Article 38 Time Limit and Principles for Award
1. The award shall be made within six (6) months from the date of the composition of the arbitral tribunal unless otherwise agreed by the parties. The arbitral tribunal may extend the time period as it has justifiable and necessary reasons. 2. The arbitral tribunal shall make the award on the basis of the facts of the case and the contractual provisions of the parties, in accordance with the law and with reference to applicable commercial customs and practices. 3. The award or decision of the three-arbitrator tribunal shall be made by majority of the arbitrators. When there is no majority, the presiding arbitrator may decide alone. 4. The dissenting opinion of the arbitrator may be kept with the file and may be appended to the award if agreed the parties. The dissenting opinion shall not form part of the award.
Article 39 Form and Effect of Award
1. Arbitral award shall be made in writing, and state the reasons upon which the award is based in its award. The arbitral award shall be final and binding on the parties. The parties shall perform the award within the period of time set forth therein. 2. The award shall be signed by the arbitrators and it shall contain the date on which the award is made and indicate the seat of arbitration. If an arbitrator fails to sign, the reasons may be attached to a separate page. The failure of the arbitrator to sign the dissenting opinion shall not affect the validity of the award. The electronic signature of an arbitrator shall have the same legal effect as a handwritten signature or seal. 3. With the consent of all the parties, an award may be made public; An award may be made public where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority. 4. Hard originals of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal.
Article 40 Partial Award and Interim Award
1. Where the arbitral tribunal considers it necessary, or where a party so requests and with the consent of the arbitral tribunal, the arbitral tribunal may make a partial award disposing of particular claims before the proceeding to make the final award. 2. Where the arbitral tribunal considers it necessary, or where a party so requests and with the consent of the arbitral tribunal, the arbitral tribunal may make an interim award on disputed procedural or substantive issues. 3. Failure of either party to perform a partial award or an interim award shall neither affect the subsequent arbitral proceedings nor prevent the arbitral tribunal from making the final award.
Article 41 Applicable Law
1. The arbitral tribunal shall apply the law and regulations agreed by the parties to be applicable to the substance of the dispute. Unless otherwise agreed by the parties, the law applicable to the agreement shall be substantive law, rather than law of conflict of laws. 2. In the absence of such agreement by the parties, the arbitral tribunal shall apply such law as it deems appropriate. 3. With the consent of all the parties, the arbitral tribunal may make an award based on the principle of fairness and reasonableness, which shall not violate any mandatory provisions of the relevant laws and the public interest or harm the legitimate rights and interests of a third party.
Article 42 Interpretation of Award
1. Within thirty (30) days after the receipt of the award, a party, with notice to the other parties, may request that the arbitral tribunal give an interpretation of the award with respect to any matters that it considers may be unclear or ambiguous. 2. If the arbitral tribunal considers it necessary, the interpretation shall be given in writing within forty-five (45) days after the receipt of the request, and the interpretation shall form part of the award. If the arbitral tribunal considers it unnecessary, the decision on not to give written interpretation shall be made in writing and communicated to the parties within fifteen (15) days after the receipt of the request.
Article 43 Correction of Award
1. Within thirty (30) days after the receipt of the award, a party, with notice to the other parties, may request the arbitral tribunal to correct in the award any error in computation, any typographical error or any error or omission of a similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within forty-five (45) days after the receipt of the request. 2. The arbitral tribunal may within forty-five (45) days after the communication of the award make corrections on its own initiative. 3. Such corrections shall be in writing and shall form part of the award.
Article 44 Additional Award
1. Within thirty (30) days after the receipt of the award, a party, with notice to the other parties, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal. 2. If the arbitral tribunal considers the request for an additional award to be justified, it shall render or complete its award within sixty (60) days after the receipt of the request. The arbitral tribunal may extend, if necessary, the period of time within which it shall make the award.
Chapter IV. Expedited Procedure
Article 45 Application of Expedited Procedure
1. Where the parties have agreed in writing or consented to apply the expedited procedure, this chapter shall apply. 2. At any time during the arbitral proceedings, the arbitral tribunal may decide to change the expedited procedure to the ordinary procedure under Chapter II and Chapter III of these Rules if the parties jointly apply, or a party applies and the other parties agree, or the arbitral tribunal deems that there are justified and necessary reasons. 3. The expedited procedure shall not be affected by the amendment of claim or the submission and amendment of counterclaim. If either party considers that the expedited procedure shall be affected, it may request the arbitral tribunal apply the ordinary procedure under Chapter II and Chapter III of these Rules. The change of arbitral procedure shall be decided by the arbitral tribunal.
Article 46 Commencement of Expedited Procedure
1. Where the expedited procedure is applicable, the notice of arbitration shall also include: (a) A proposal for appointing authorities; (b) A proposal for the nomination of arbitrators in accordance with Paragraphs 1, 2 or 3 of Article 16 of these Rules. 2. When communicating its notice of arbitration to the respondent, the claimant shall also communicate its statement of claim. 3. The claimant shall communicate the notice of arbitration and the statement of claim to the arbitral tribunal within three (3) days after its composition. 4. Where the expedited procedure is applicable, within ten (10) days of the receipt of the notice of arbitration from the claimant, the respondent shall respond to the issues raised in the notice of arbitration, which shall also include responses to the contents set forth in the notice of arbitration pursuant to items (a) and (b) of Paragraph 1 of this Article. 5. The respondent shall communicate its statement of defence to the claimant and the arbitral tribunal within fifteen (15) days after the composition of the arbitral tribunal.
Article 47 Composition of the Arbitral Tribunal
1. Unless otherwise agreed by the parties, the case under expedited procedure shall be heard by a sole arbitrator. The nomination of the arbitrator shall refer to relevant provisions of Section 2 of Chapter II of these Rules. 2. If the arbitrator is appointed by the appointing authority, the appointing authority shall, within ten (10) days from the date of receipt of the application, make the relevant appointment, and notify the parties in writing thereof. 3. If a party requests an arbitrator to withdraw, it shall, within five (5) days after receiving the arbitrator’s declaration, submit its written request. 4. If the parties have a dispute over whether the arbitrator should withdraw, any party may, within five (5) days after filing the application for withdrawal, apply in writing to the appointing authority for a decision. The appointing authority shall make a decision within five (5) days after receiving the application for withdrawal from any party and inform the parties and the arbitral tribunal in writing.
Article 48 Methods of Hearing
1. Expedited procedure may be conducted on a document-only basis. Where the arbitral tribunal decides or both parties agree to hold an oral hearing to hear the case, the parties shall make statements focusing on the issues in question. The arbitral tribunal may allocate and limit the time for each party to make statements. 2. In the case of an oral hearing, the arbitral tribunal shall notify the parties of the date, time and place of the hearing ten (10) days in advance. Where a party applies for postponement of the oral hearing, it shall submit an application for postponement of the oral hearing to the arbitral tribunal at least five (5) days in advance of the oral hearing and state the reasons therefor. The arbitral tribunal shall decide whether or not to postpone the oral hearing. The arbitral tribunal has the power to decide whether to accept an application for postponement of the oral hearing submitted after the above time limit. 3. The arbitral tribunal shall promptly arrange the arbitral proceedings schedule and the scope of hearing.
Article 49 Time Limit for Award
In the case of an arbitration on the document-only basis, the arbitral tribunal shall make an award within thirty (30) days from the date on which the last document is submitted by the parties according to the arbitration schedule. In the case of an oral hearing, the arbitral tribunal shall make an award within thirty (30) days from the date of the oral hearing. However, the arbitral tribunal shall make its award at the latest within sixty (60) days from the date of the composition of the arbitral tribunal.
Article 50 Application of Other Provisions
Other relevant provisions of these Rules shall apply or be referenced on any matter not covered in this Chapter.
Chapter V. Others
Article 51 Third-party Funding
1. Once a third-party funding agreement is concluded, the funded party shall promptly communicate in writing to the arbitral tribunal and the parties concerned, the existence of the third-party funding arrangement, the financial interest therein, the information of the third party funder and other relevant information. The arbitral tribunal may order the funded party to disclose other relevant information of the funding if it deems necessary. 2. When deciding the costs of arbitration and other fees in the award, the arbitral tribunal may take into account of the existence of the third-party funding arrangement and the fact whether the requirements set forth in the preceding Paragraph 1 are complied with by the funded party.
Article 52 Costs
1. The arbitral tribunal shall fix the costs of arbitration in the final award and, if it deems appropriate, in another award or decision. 2. The term “costs” encompasses: (a) The fees of the arbitral tribunal; (b) The travel and other reasonable expenses incurred by the arbitrators in connection with the case; (c) The reasonable costs of expert advice and of other assistance required by the arbitral tribunal; (d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal; (e) The attorney’s fees and other costs of the parties in relation to the arbitration, but only to the extent of a reasonable amount of such costs as determined by the arbitral tribunal; (f) Any fees and expenses of the appointing authority; (g) Other actual costs of the arbitral tribunal and arbitrators in relation to the arbitration; (h) The costs that may incur by interpretation and correction of award or additional award; (i) Other reasonable expenses.
Article 53 Fees and Expenses of Arbitrators
1. The fees and expenses of the arbitrators shall take into account the complexity of the subject matter, the time spent by the arbitrators and any other relevant circumstances of the case, and may be computed as a percentage of the amount in dispute or as the time spent by the arbitrators. 2.The arbitral tribunal shall inform the parties as to how it proposes to determine its fees and expenses, including any rates it intends to apply. Where the parties concerned agree, it shall be implemented accordingly. Where the party has objections, it may, within fifty (15) days after receiving the proposal, submit it to the appointing authority for review. Within fifty (15) days of receipt of the request for review, the appointing authority shall make necessary adjustments thereto, which shall be binding upon the arbitral tribunal. If no adjustment is made within the specified time limit, the proposal shall be deemed as having been confirmed. Any such adjustments shall be included by the arbitral tribunal in its award. If the award has already been rendered, the arbitral tribunal shall make corrections to the award or render an additional award so as to include such adjustment.
Article 54 Allocation of Costs
1. The costs of the arbitration shall in principle be borne by the losing party or parties. The arbitral tribunal may apportion the percentage or amount of each of such costs between the parties, taking into account the circumstances of the case. 2. The arbitral tribunal shall award or determine the amount of costs to be paid by one party to the other party in the final award or in such other award or decision as it deems appropriate.
Article 55 Deposit of Costs
1. The arbitral tribunal, after its composition, may request the claimant to pay (deposit) arbitration fee in advance solely, or request the parties to pay (deposit) arbitration fee equally. 2. If necessary, the arbitral tribunal may request supplementary deposits from the parties. 3. Unless otherwise agreed by the parties, the parties shall be jointly and severally liable for the payment of arbitration fees. If the required deposits are not paid in full within fifteen (15) days after the receipt of the requirement, the arbitral tribunal shall so inform the parties in case the other party may make the required payment. If such payment is not made by the parties within the specified time limit, the arbitral tribunal may order the suspension or termination of the arbitral proceedings. 4. The arbitral tribunal shall have the authority to suspend any decision or award if the parties have not paid the required deposit in full. 5. After the final award has been made, the arbitral tribunal shall render a bill of arbitration fees to the parties and return any remaining deposits to the parties.
Article 56 Custody of Files
The arbitral tribunal shall make arrangement for the custody of the case files. The arbitral tribunal may decide to keep the case files on its own or entrust appointing authority or other third party to keep the case files. In the absence of such arrangement, the arbitral tribunal shall keep the case files on its own at its own cost. The case files shall be kept for at least five years.
Article 57 Exclusion of Liability
Except for deliberate misconduct, the parties waive, to the maximum extent permitted under the applicable law, any claim against the arbitrators, the appointing authority, its relevant staff, and any person appointed by the arbitral tribunal based on any act or omission in connection with the arbitration.
Article 58 Interpretation
1. These Rules shall be interpreted by the SHAA. 2. The headings of the articles in these Rules are for the convenience of reference only and shall not be used to interpret the meanings of the articles contained therein.
Article 59 Effectiveness and Implementation
These Rules shall enter into force and effect as of the first day of August, 2024.
Appendix
Ad Hoc Arbitration Model Arbitration Clause (Sample)
Any dispute arising from or in connection with this contract shall be resolved by arbitration in accordance with the Shanghai Arbitration Association (SHAA) Ad Hoc Arbitration Rules. The arbitral award shall be final and binding on the parties. Note: The parties may consider adding the following: 1. The appointing authority shall be [name of organization or person]. 2. The arbitral tribunal shall be composed of [one or three] arbitrator(s). 3. The seat of arbitration shall be […]. 4. The language of the arbitration shall be […]. 5. The arbitration agreement shall be governed by the law of […].
Declaration of Arbitrator (Sample)
I confirm that I can devote the time necessary to conduct this arbitration diligently and efficiently in accordance with the time limit provided for in these Rules. □ No Circumstances to Disclose I am strictly impartial and independent of each of the parties and will hear the case impartially. I also confirm that, to the best of my knowledge, I have no relative, property, or professional relationship of any nature whatsoever with the parties or their representative, which is sufficient to affect the hearing of the case, nor do I have any personal interest in the outcome of the case, nor are there other circumstances which would give rise to justifiable doubts as to my impartiality or independence, and therefore I must withdraw. □ Circumstances to Disclose I am strictly impartial and independent of each of the parties and will hear the case impartially. However, in view of the following circumstances between the parties or their representative, which may give rise to doubts as to my impartiality or independence, I hereby disclose in accordance with Article 18 of the Shanghai Arbitration Association Ad Hoc Arbitration Rules: [insert statement]. I acknowledge that the foregoing circumstances do not affect my impartiality and independence. Duty to Disclose I will notify the parties and the other arbitrators promptly if I become aware of any new circumstances which may give rise to doubts as to my impartiality or independence. Arbitrator (signature) : Date: