Mediation Rules of International Commercial Mediation Center for the Belt & Road (For Trial Implementation)
1. General Provisions
1.1 The International Commercial Mediation Center for the Belt & Road (“the Mediation Center” or “the Center”) shall apply the principles of Independence, Impartiality, Voluntariness, Effectiveness, Efficiency and Confidentiality, facilitating all parties through mediation to solve the international commercial disputes, based on the laws and facts, in connection with (including but not limited to) the “Belt & Road” countries (the “BnR”).
1.2 Functions of the Center are as follows:
1.2.1 To appoint duly qualified mediators;
1.2.2 To organize trainings for mediators to obtain required qualifications and capabilities;
1.2.3 To provide the members of the Belt and Road Service Connections (“BNRSC”) and related parties, as well as the governments, enterprises and other commercial entities within countries or areas along or related to the “Belt & Road”, with mediation services under the Mediation Rules of International Commercial Mediation Center for the Belt & Road(For Trial Implementation)(the “Rules”);
1.2.4 To promote a harmonious, reciprocal and equal mediation culture among commercial entities within countries or areas along or related to the BnR through online and off line mediation, therefore helping to establish the economic order along the BnR;
1.2.5 To cooperate with governments, judicial authorities, national mediation and arbitration organizations of the countries or areas along or related to the BnR to support the development of the international commercial mediation practice as well as the connection with other legal procedures including the connection of litigation and mediation, the recognition and enforcement of the mediation settlement agreement;
1.3 Principles of Mediation: the Center shall respect the parties’ express choice of law for mediation during the mediation, and shall also take into consideration of other factors such as principles of fairness and equality, international business customs, market rules and publicly accepted local customs related to the parties to ensure that the mediation settlement agreement can be duly performed.
2.1. Following the procedures and principles under the Rules, a mediation settlement agreement shall be reached among the parties with the assistance of one or more mediators with a neutral stand.
2.2 The Center may accept request for mediation regarding international commercial disputes in connection with (including but not limited to) the BnR and any mediation cases assigned by courts or other organizations.
3. Application Scope of the Rules
3.1 The Rules shall apply to cases where the parties intend to seek amicable settlement and where, either stipulated in their contract or in a separate agreement, they have agreed to solve their disputes by mediation as the preferred option.
3.2 Model Clause for Mediation “The parties hereby agree that any dispute or difference arising from or in connection with this contract shall firstly be submitted to the International Commercial Mediation Center for the Belt & Road (“the Center”) for seeking settlement by mediation in accordance with its then effective mediation rules, which are to be automatically incorporated into this clause.”
3.3 In case that there is no aforementioned mediation clause between the parties, but if one party requests mediation to the Center while the other party agrees or does not express objection to the request, the Center may accept the case and proceed under the Rules.
4. Application for the Mediation
4.1 When a dispute arises, one party or both parties may apply for mediation to the Center by submitting a written Mediation Application Form, which shall include description of the disputing facts, the disputing subject and the claims, appropriate supporting evidential materials and the applicant’s identification materials.
4.2 If a party has representatives or agents attending the mediation process, the party shall provide the Center with a power of attorney bearing the particulars and the duties of the representatives or agents with their scope of authorization for settlement in such case, the settlement agreement reached hereto on reconciliation or mediation shall be confirmed by the represented party.
4.3 The Mediation Application Form shall include: name, nationality, address, phone number, email address, fax number and other contact methods of applicant and respondent. The Mediation Application Form may be delivered, or submitted, to the Center through online submission system on www.bnrsc.com or www.bnrmediation.com.
5. Responding to the Mediation Application
5.1 After receiving the Mediation Application Form from the applicant, the Center shall provide the respondent a duplicate of such form and a sample Letter for Confirming Participation of Mediation to solicit opinion from the respondent.
5.2 Within five (5) days as of receipt of the duplication of the Mediation Application Form as well as the Letter for Confirming Participation of Mediation, the respondent shall file the signed Letter for Confirming Participation of Mediation by hand delivery or by courier or via online submission system. In case that a mutually agreed mediation settlement agreement has been in place, failure by the respondent, without any reasonable reasons, to respond within 5 days shall be deemed as an acceptance of the mediation. Whereas in the absence of a mutually agreed mediation settlement agreement among parties, failure by the respondent to respond within 5 days shall be deemed as a refusal of the mediation.
5.3 It will be deemed as rejection of the mediation request if the Center fails to reach the respondent after the Center contacts the respondent according to the respondent’s address and other contact information provided by the applicant, or the respondent fails to respond within the prescribed time even if the Center has successfully contacted the respondent. In case that the respondent replies to confirm to attend the mediation process after expiry of the prescribed period, the Center may decide whether to proceed after soliciting opinions from the applicant.
5.4 After receiving the Letter for Confirming Participation of Mediation from the respondent, the Center shall timely issue the Filing Receipt, the Rules and a list of mediators to the parties. In case of the existence of a mediation settlement agreement among parties, the Center may issue the Filing Receipt, the Rules and a list of mediators to the parties directly and notify them to participate in the mediation.
5.5 When the Center solicits opinions from the parties and delivers the Filing Receipt, hearing notices and other materials, the Center may deliver them in hard-copy written form, or use the telephone, fax, email or other traceable communication methods that the parties have provided to the Center, or use the online system of the Center.
6. Appointment of the Mediator
6.1 When the Center serves the Filing Receipt, the Rules and a list of mediators to the parties, the Center may also solicit the parties’ opinions on the choice of mediators and ask them to commence the appointment of mediator(s).
6.2 The parties may jointly appoint one mediator from the mediator list, subject to the confirmation by the Center. The Center may designate one mediator from the list if the parties fail to jointly appoint one within fourteen (14) days upon the receipt of the service.
6.3 If more than one mediator are needed or an assistant for the mediator is needed due to certain factors including professionalism, languages and technologies, the Center may directly appoint one after soliciting opinions from the parties.
7. Qualification and Personal Information Disclosure of the Mediator
7.1 Mediators shall have full capabilities for legal and civil conduct as well as at least 8 years’ experience in legal or business profession. Mediators shall have passion for mediation, be fair, upright and righteous, and have never been subject to any criminal penalties. Mediators shall be familiar with the laws, commerce, languages and cultures of countries or areas of (including but not limited to) the BnR and other related countries or areas. Moreover, mediators shall handle the dispute under the principles of independence, impartiality and equality as well as in accordance with the Rules, related conduct guidelines and other rules of the Center. In addition, any mediator who is not a Chinese citizen shall have the nationality of an independent country, Any mediators from Hong Kong, Macau or Taiwan shall recognize “One China” policy under the People’s Republic of China.
7.2 Unless agreed by the parties, any person who has economical or personal interest in the disputed matter or with the disputing parties, shall not undertake the position of the mediator. Before the appointment, the proposed mediator shall submit to the Center a statement indicating his/her willingness to accept the appointment, his/her availability for the mediation as well as the status of impartiality and independence. Meanwhile, the proposed mediator shall also disclose any personal information that is likely to cause any conflict of interest, bias or impact on the reaching of a mediation settlement. The Center shall duly provide the mediator’s information to the parties.
7.3 If any party objects to the appointment of the proposed mediator within seven (7) days after the receipt of his/her information, the Center shall appoint another mediator to substitute pursuant to the aforesaid procedure.
8. Mediation Methods, Rights and Obligations of the Mediators
8.1. The mediator may conduct the mediation in the manner as he/she considers appropriate after taking into account all the circumstances of the case, the intentions of the parties and the demands for a speedy settlement of the dispute. The mediation methods include but not limited to the followings:
8.1.1 The mediator may contact all or any of the parties or the party’s agent or representative, and may meet and communicate with one party alone or with all the parties simultaneously, or have private meetings.
8.1.2 The mediator may request the parties to raise, in written form or orally, their advice and proposals as to the resolution of disputes, and the mediator may also provide his/her advice or proposals directly to the parties.
8.1.3 The mediator may, after obtaining consent from the parties, engage related experts to provide advice or appraisal for technical issues, or engage experts and translators/interpreters in the related countries, and the parties shall prepay related fees.
8.2 The mediator shall try his/her best to facilitate communications among the parties, identify mutual benefits of the parties, reach common understandings, and assist the parties to find solutions on the basis of these findings. The parties shall cooperate with the mediator.
8.3 The mediator shall faithfully and actively perform his/her duties, comply with the Rules and other conduct guidelines, keep contact with the Center to keep the Center informed of the progress of the mediation and follow the management of the Center.
9. Rights and Obligations of the Parties
9.1 Each party is entitled to equally participate in the mediation process, get access to related information, fully express their claim(s) and reasoning, provide information and materials and submit supporting evidences.
9.2 The parties shall participate in the mediation process in good faith and in accordance with the Rules, and shall cooperate with the mediator without any undue delay of the process and shall not present any false information. The parties shall strictly perform the duties of confidentiality and other related obligations.
9.3 Once the mediation process has commenced, the parties shall, to the extent permitted by law, withdraw from or suspend any legal action or judicial process in connection with the disputed subjects under the mediation. If the case is entrusted by a court or other agencies, it shall follow the rules of the entrusting authority.
10. Place for Mediation
10.1 If the applicant requests the mediation through the Center online system, with the consent of both parties, the mediation may be conducted through the online mediation management system. The mediator may conduct mediation with the parties, individually or jointly, online by instant communication tools such as video, audio and internet, or offline by face-to-face discussions or meetings. The parties may, upon the request and arrangement of the mediator, attend the discussions, talks, hearings or meetings, as well as sign and submit files including but not limited to hardcopy materials and data documents. All the online mediation process shall have the same due process standard as that for the offline mediation process, especially in terms of independence, impartiality and neutrality.
10.2 The mediation shall be conducted on the site of the Center, however, it may also be at other places if the parties agree otherwise or the mediator thinks it necessary. The costs incurred due to the change of location of mediation shall be undertaken by the parties.
10.3 If the mediation site agreed by the parties is in the same location of the branches or associated organizations of the Center, the Center may, according to the principles of convenience and cost-saving, arrange the related branches or associated organizations to conduct the mediation, and the parties shall bear related costs.
11. Working Language
11.1 In case of no special agreement by the parties on the working language, in principal the Center will use the official language where the Center is registered, i.e. Chinese. If the parties demand services of languages other than Chinese, the parties shall bear all the related costs. The mediation settlement agreement issued by the Center in non-Chinese language shall be accompanied with a Chinese version.
11.2 If the applicant submits the mediation request form in English or other non-Chinese language through the Center online system, the mediation may be conducted using English and the mediation decision may be written in English upon the consent of both parties, however, the Chinese version will also be required
11.3 If a mediation decision by the Center needs transfixion with a court for judicial recognition and enforcement, the Center shall issue the mediation decision in the official language in the place of the court. If the transfixion with a court involves international recognition and service of documents, the parties shall assume the responsibility to serve and receive the mediation decision, contact the local competent court for judicial recognition and waive the service procedure under Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.
12. Period for Mediation
12.1 The parties may agree on the mediation period through consultation. The mediator may, upon discussion with the parties, jointly decide the mediation period.
12.2 In case of no mediation period agreed upon by the parties or jointly decided by the mediators and the parties, the mediator shall complete the mediation within 42 days after the confirmation or the appointment of the mediator by the Center and obtaining all the documents of the mediation cases unless both parties apply to extend such period and obtain the consent of the Center.
12.3 The mediation entrusted by the courts and other institutions shall be conducted in accordance with the Rules within the mediation period hereof.
13. Termination of the Mediation
13.1 When the parties reach a settlement agreement after the mediation process, the mediator shall prepare a mediation settlement agreement, which shall come into effect as of the signing by the parties and the mediator, and the affixation of the seal of the Center. The mediation settlement agreement shall be binding on and complied with by all the parties. The mediation process shall then end.
13.2 When the parties reach a settlement agreement regarding part of the claims under mediation, the mediator shall prepare a mediation settlement agreement regarding such part of the claims under mediation to be signed by the parties and the mediator, and sealed by the Center, which shall be binding on and complied with by all the parties. The mediation process shall then end.
13.3 If the mediator is of the view that there is no possibility for parties to reach an agreement and there is no valid reason to continue the mediation, the mediator shall, after consultation with the parties, send a written termination notice to the parties. The mediation process shall then end.
13.4 If any party sends the mediator a written notice explicitly stating such party’s unilateral termination of the mediation, the mediation process shall end.
14.1 The mediation shall be conducted in a confidential way unless the parties agree otherwise. The Center secretary shall arrange personnel to prepare the record of the mediation process.
14.2 Confidential information. All information, materials, documentation, communications or data (including the mediation participants, the mediation process, and the mediation settlement agreement) disclosed, made or presented by any party in the mediation process shall be treated as confidential information. The mediator shall inform the Center of the information of the mediation participants, the mediation process, and the mediation settlement agreement promptly, and the Center shall designate a secretary to take notes. Each party and its representative or agent, witness, expert, interpreter, staff of the Center and other person participating in the mediation shall all have confidentiality obligation unless the parties agree otherwise or the laws stipulate otherwise.
14.3 No party is allowed to cite the statement, opinion, view, proposal and advice that any party or the mediator has raised, proposed, admitted or expressed to acknowledge during the mediation process for the purpose of reaching the mediation settlement agreement, as the basis for such party’s own claim or defense in any subsequent arbitration, litigation or other procedures regarding the same or similar dispute.
14.4 The mediator shall not be appointed as an arbitrator or an agent of any party in any subsequent arbitration, judicial proceedings or other procedures regarding the same or similar dispute as that under the mediation. No party shall have the mediator as a witness in the above-mentioned subsequent procedures.
15. Performance of the Settlement Agreement
15.1 The Center may witness and supervise the performance of the mediation settlement agreement reached under the mediation by the mediator appointed by the Center. The Center is authorized to supervise, urge, exhort, notify and reprimand the parties, or contact the relevant governmental authorities, international organizations or institutions, and industry associations to seek assistance on supervising the implementation.
15.2 The Center may assist the parties to jointly apply for notarization of the mediation settlement agreement reached under the mediation by a mediator appointed by the Center, or make the notarized legal documents on the creditors’ legal documents, proof documents, and compulsory enforcement documents in accordance with the mediation settlement agreement. And if necessary, apply to a competent court for enforcement according to the notarized agreement.
15.3 For any mediation settlement agreement reached under the mediation by a mediator appointed by the Center, the Center may coordinate the parties to jointly apply to related arbitration institutions for making the arbitral mediation agreement or arbitration award.
15.4 For any mediation settlement agreement reached under the mediation by a mediator appointed by the Center, who is also a mediator appointed by a court, the Center may coordinate the parties to jointly apply to the competent court for judicial recognition.
15.5 For any mediation cases on civil and commercial disputes entrusted by a court or any relevant competent institution, the Center shall handle the cases in accordance with the relevant laws and the rules of such court or relevant competent institution thereof.
16.1 Unless otherwise agreed, each party participating the mediation under the Center shall bear its own costs and shall equally share the mediation fees and other payable costs and expenses.
16.2 The parties shall undertake the joint and several liabilities for payment of the following costs to the Center:
16.2.1 The mediator’s fees and expenses;
16.2.2 The expenses for the witness, expert, technical consultation, translation, etc., which are engaged by the mediator upon the consent of the parties;
16.2.3 Other administrative costs for the mediation, including but not limited to the cost for case registration, case handling, online system development and maintenance, archive and record, and management of the Center;
16.2.4 The cost related to hearings, meetings, video, office, rent, travel incurred in the mediation case.
16.3 All the cost shall be pre-paid and settled at end of the mediation pursuant to the rules on payment of fees of the Center. The balance of the pre-paid amount shall be returned to the parties after the mediation procedure ends.
16.4 The above-mentioned costs and fees shall be under the management by the Center.
17. Performance Bond
17.1. When the parties have a joint intention for settlement or have reached a mediation agreement, and agree to pay a performance bond to the Center to facilitate the performance of the mediation settlement agreement, the mediator may, at the request of the parties, provide the performance bond bank account information managed by the Center to the parties.
17.2 The performance bond agreed and paid by the parties shall be collected by the Center and managed under the Performance Bond Management Rules of the Center.
When the parties have signed a mediation settlement agreement and such agreement has been implemented or the performance bond has been fully paid, the other party shall waive all claims related to the subject matter settled.
19. Immunity of Mediator’s Liabilities
The mediators and the Center shall not be liable for any consequences arising out of any acts in connection with the mediation conducted under the Rules, except for the consequences of fraud or dishonest conduct.
20. Miscellaneous Provisions
20.1 The Rules shall become effective as of the date of issuance.
20.2 “Day(s)” in the Rules refer to calendar day(s).
20.4 The Center has the right of interpreting and revising the Rules.
October 18, 201