Hainan International Arbitration Court
(Hainan Arbitration Commission)
Mediation Rules of the International Mediation Center
Chapter 1 General Provisions
Article 1 Hainan International Arbitration Court (Hainan Arbitration Commission) International Mediation Center (hereinafter referred to as the "Mediation Center") is a commercial mediation service organization established by the Hainan International Arbitration Court (Hainan Arbitration Commission), and aims to encourage commercial entities to settle disputes by mediation, provide better services for development of Hainan Free Trade Port business environment, and serve for harmonious development of economic society.
Article 2 The Mediation Center shall accept the cases within the scope of commercial disputes between natural persons, legal persons and other organizations with equal subjects at home and abroad, including contractual disputes and other disputes over rights and interests in property.
Article 3 Where the parties agree to submit their disputes to the Mediation Center for mediation, these Rules shall apply. Where the parties agree otherwise, such agreement shall prevail.
These Rules shall not apply in the mediation presided over by an arbitral tribunal during the arbitral proceedings.
Article 4 The mediation shall be conducted in accordance with the relevant laws and regulations, by referring to international practices and transaction practices, on the basis of the free will of all parties concerned and in light of the principles of objectivity, impartiality, fairness and reasonableness, so as to promote the mutual understanding, mutual accommodation and settle the disputes by mediation of the parties concerned.
Article 5 Mediation may be conducted in writing forms or by electronic data massages (including telegram, telex, facsimile, electronic data interchange, etc.).
Chapter 2 Application and Acceptance
Article 6 Where the parties have an arbitration agreement, the Mediation Center accepts a mediation case upon the application filed by one party or both parties. Where there is no arbitration agreement between the parties, The Mediation Center accepts the case as well.
The Mediation Center may mediate the disputes between the parties according to the transfer or entrustment from the people's court or any other institutions.
Article 7 The parties shall submit the following materials when applying for mediation:
(I) A written form of application for mediation, which shall state:
1. name, domicile and contact means of the parties;
2. mediation claims and facts of the dispute.
(II) Other relevant documents or evidence, which can be declared as the reference only for mediator; and
(III) Proof of the party’s identity.
Article 8 Upon receipt of an application for mediation from one party, the Mediation Center shall immediately send the mediation notice to the counter party, these Rules and the panel list of mediators.
Article 9 The counter party shall, within five (5) days after receiving the notice of mediation, submit the following materials to the Mediation Center:
(I) Its written opinion on whether the dispute shall be submitted to the Mediation Center for mediation;
(II) Its written opinion on the requirements of the counter party;(III) Other relevant documents or evidence, which can be declared as the reference only for mediator; and
(IV) Proof of the party’s identity.
Article 10 Any written documents submitted as exclusive reference for the mediator shall be submitted in one copy.
If there are two or more mediators, the copies shall be added accordingly.
Other documents not being declared as exclusive reference for the mediator shall be submitted in two copies, and the number of copies shall be added correspondingly on the basis of the number of parties or the mediators.
Where the People's Court or any other institutes have forwarded or entrusted a mediation case along with the corresponding materials, the parties are not required to submit additional materials.
Article 11 Where the counter party agrees to the mediation, the party applying for mediation shall, within five (5) days as of receiving the notice of payment sent by the Mediation Center, pay the mediation fee in advance pursuant to the charging rates for mediation of the Mediation Center.
Where the parties do not pay mediation fee, they shall be deemed not to have applied for mediation.
Article 12 Where both parties jointly apply for mediation, the Mediation Center shall, upon receipt of an application, send a notice of mediation, these Rules, the panel list of mediators and a notice of payment to both parties. Both parties shall pay the mediation fee in advance within three (3) days upon receipt of the notice of payment for mediation.
Where the parties do not pay mediation fee in advance, they shall be deemed not to have applied for mediation.
Article 13 Where a party entrusts one or more representatives for the mediation, the power of attorney stating specific entrusted matters and the scope of authority and the identity documents of the entrusted representatives shall be submitted.
Chapter 3 Nomination or Appointment of Mediator
Article 14 The mediation shall be conducted by one mediator, unless otherwise agreed by the parties.
Article 15 The Mediation Center shall classify panel (s) of mediators according to different industries or specialties for the parties to nominate. The parties can also nominate mediators from outside the panel (s) of mediators.
Where the parties nominate a mediator from outside the panel list, the professional qualification, resume, identity document and contact information of the mediator shall be submitted.
Article 16 The parties may jointly nominate or jointly entrust the Mediation Center to appoint a mediator within five (5) days upon their receipt of the notice on mediation. If the parties fail to jointly nominate or jointly entrust the Mediation Center to appoint the mediator within the specified time limit, the mediator shall be appointed by the Mediation Center.
Article 17 After the mediator accepts the parties' nomination or the Mediation Center' s appointment, where there is any circumstance under which the parties may reasonably doubt the independence or impartiality of the mediator, such circumstance shall be disclosed. The parties shall, within three (3) days after receiving the disclosure from the mediator, submit their opinions on whether to replace the mediator; If the parties fail to submit their opinions within the time limit, it shall be deemed as consenting to the mediator's continuous mediation.
Article 18 Under any of the following circumstances, a mediator shall challenge himself or herself, and the parties shall have the right to apply to challenge a mediator:
(I) The mediator is a party to the case or a close relative of the representative to the case;
(II) The mediator has an interest in the case;
(III) The mediator has any other relationship with a party to the case or a party's representative, which may affect the impartiality of the mediation; or
(IV) Other circumstances.
Article 19 Where a party applies for challenging the mediator or replacing the mediator, or where a mediator challenge himself or herself or the mediator is unable to continue to perform his/her duties due to his/her own reason, the mediator shall withdraw from the mediation of the case. The parties shall, within three (3) days after receiving the notice of the Mediation Center, nominate a mediator again. If they cannot jointly nominate a mediator or cannot jointly entrust the Mediation Center to appoint a mediator, the mediator shall be appointed by the Mediation Center.
Chapter 4 Manner and Period of Mediation
Article 20 A mediator shall treat all parties fairly and impartially and assist the parties in resolving the dispute.
The mediator may adopt a method it deems favorable for the parties concerned to reach a mediation agreement to mediate the dispute. The means of mediation include, but not limited to:
(I) After the mediation procedure starts, the mediator may meet the parties and their representative (s) individually or simultaneously in the Mediation Room of HIAC for mediation, and the secretary in charge shall be present at the meeting;
(II) During the course of mediation, the mediator may request the parties to put forward written or oral mediation opinions or proposals;
(III) The mediator may, according to the specific circumstances of the case and after obtaining the consent of both parties, retain the relevant experts to provide consultation, suggestions or appraisal opinions on technical issues, and the expenses incurred therefrom shall be borne by the parties concerned. If the parties fail to pay the expenses for retaining the experts in advance, it shall be deemed that they have not applied for retaining any expert;
(IV) The mediator may require the parties to submit supplementary materials; and
(V) During the course of mediation, a mediator may, according to the known information and the principle of fairness and reasonableness, put forward a proposal or suggestion for settling the dispute to the parties.
Article 21 The mediation shall take place in the place where the Mediation Center is located. The parties may agree, in addition, on other places, and the expenses arising therefrom shall be borne by them.
Article 22 The mediation shall be conducted in Chinese. The expenses incurred thereof shall be borne by the parties unless otherwise agreed by the parties.
Article 23 The mediation shall be conducted in private. If the parties concerned agree, such information may be disclosed, unless any state secret, third party business secret or personal privacy is involved.
Where a case is mediated in private, the mediators, the parties concerned and their representative, witnesses, experts, Mediation Center personnel and other persons participating in the mediation shall be obliged to keep the mediation confidential.
Article 24 The parties may, by agreement, set a time limit for the mediation. The mediator may also set a time limit for the mediation with the consent of the parties. mediator may also set a time limit for the mediation with the consent of the parties.
Where there is no specific time limit for mediation set by the parties or the mediator, the mediator shall complete the mediation within thirty (30) days of the date of his/her appointment or nomination, unless the parties agree upon a suitable extension of the time limit.
Article 25 The parties and their representative (s) shall actively cooperate with the mediators during the mediation procedure to ensure the smooth conduct of the mediation procedure.
Chapter 5 Mediation Results
Article 26 Upon mediation, where the parties reach an agreement, the mediator shall cause the parties to enter into a mediation agreement. Where the parties reach an agreement on a partial request, a partial mediation agreement may be concluded accordingly. Where the parties are unable to reach a mediation agreement, the mediator may guide the parties concerned to settle the dispute through a substitute method.
The parties may apply to the HIAC for arbitration in accordance with the arbitration agreement (clause) concluded beforehand or afterwards, and the arbitral tribunal shall make a statement of mediation or an arbitral award in respect of the contents of the mediation agreement.
Article 27 The mediation procedure shall be terminated if any of the following circumstances arises:
I. The parties declined mediation;
II. The mediator concludes that it is unlikely to have successful mediation and declares in writing to terminate the mediation procedure;
III. The parties or one party declares in writing to the mediator that the mediation proceedings shall be terminated;
IV. When the mediation term expires, if the parties do not agree to an extension or if one of the parties expressly states that it will not continue.
V. The parties concerned reach a mediation agreement.
Article 28 Any party shall not in any manner produce any statements, views, opinions or proposals put forward by the parties or the mediator, for the purpose of reaching a settlement, in the course of mediation, as grounds for claim(s), defense(s) or counterclaims in any subsequent arbitration procedure.
The parties shall not request the mediator to act as a witness in any of the procedures as prescribed in the preceding paragraph.
Article 29 The mediator may not act as an arbitrator or as one party's representative in the subsequent arbitration proceedings, unless the parties agree otherwise.
Chapter 6 Supplementary Provisions
Article 30 The mediation fee and other expenses under these Rules to be borne by the parties concerned shall be paid in advance by the applicant, where both parties make a joint application, the parties concerned shall pay 50% of the mediation fee and other expenses in advance, unless otherwise agreed by the parties.
Article 31 The mediation fee shall be charged at 50% of the arbitration case fee rate set by the HIAC. The mediator’s remuneration shall be paid with reference to the remuneration paid to the arbitrator by HIAC.
Article 32 Where the mediation fails, the mediation fee paid in advance by the parties shall be refunded to the parties after deduction of the mediator's remuneration and the relevant expenses.
Article 33 Where the mediation succeeds and the parties apply to the HIAC to form an arbitral tribunal to make a statement of mediation or arbitration award in respect of the content of the mediation agreement, the arbitration fees shall be charged separately at 50% of the arbitration case fee rate set by the HIAC.
Article 34 The power to interpret these Rules shall remain with HIAC.
Article 35 These Rules shall come into force at the date of June 1, 2020.