Mediation rules of Shenzhen Qianhai international commercial mediation center (Trial)

（These Rules shall be deliberated and adopted by the first Council of Shenzhen Qianhai international commercial mediation center on August 15, 2020, and shall come into force as of the date of promulgation）

    Chapter I General Provisions

    Article 1 These rules are formulated in accordance with relevant laws, regulations and judicial reform policies, with reference to Hong Kong, Macao and international practices, in order to improve commercial mediation procedures, standardize commercial mediation activities, help the parties to resolve commercial disputes in a timely, independent, fair and effective manner, promote a harmonious and lasting commercial relationship between the parties, and maintain a normal and orderly commercial legal order.

    Article 2 mediation as mentioned in these Rules refers to the activities organized by Shenzhen Qianhai international commercial mediation center (hereinafter referred to as the "mediation center") to employ registered mediators to use persuasion, persuasion and other methods to urge the parties to reach a mediation agreement voluntarily on the basis of equal consultation and solve commercial disputes.

    The term "mediator" as mentioned in these Rules refers to the professional personnel specially engaged by the mediation center to provide commercial mediation services for the parties in accordance with the prescribed conditions and procedures.

    The mediation center and its mediators shall carry out mediation activities in accordance with these rules and shall be protected by law. No unit or individual may illegally interfere.

    Article 3 these rules are applicable to the mediation of commercial disputes between the following parties:

    （1） Commercial disputes in which both parties are mainland enterprises, institutions and natural persons;

    （2） Commercial disputes in which one or both parties are enterprises, institutions or natural persons in the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region;

    （3） Commercial disputes in which one or both parties are foreign enterprises, institutions or natural persons.

    The commercial disputes mentioned in the preceding paragraph include disputes in the fields of trade, investment, merger and acquisition, finance, securities, insurance, intellectual property, real estate, engineering construction, transportation and other commercial and maritime matters.

    Article 4 a mediation center and its mediators shall abide by the following principles in carrying out mediation activities:

    （1） Mediation should be carried out on the basis of the parties' willingness, equality and true expression of will;

    （2） It does not violate the applicable laws, regulations, policies and international practices for dispute settlement;

    （3） When mediators preside over mediation, they should adhere to principles, conduct justice, be diligent and responsible, and abide by the obligation of confidentiality;

    （4） Respect the rights of the parties and shall not prevent the parties from safeguarding their rights through arbitration, judicature and other channels.

    Chapter I General Provisions

    Article 1 These rules are formulated in accordance with relevant laws, regulations and judicial reform policies, with reference to Hong Kong, Macao and international practices, in order to improve commercial mediation procedures, standardize commercial mediation activities, help the parties to resolve commercial disputes in a timely, independent, fair and effective manner, promote a harmonious and lasting commercial relationship between the parties, and maintain a normal and orderly commercial legal order.

    Article 2 mediation as mentioned in these Rules refers to the activities organized by Shenzhen Qianhai international commercial mediation center (hereinafter referred to as the "mediation center") to employ registered mediators to use persuasion, persuasion and other methods to urge the parties to reach a mediation agreement voluntarily on the basis of equal consultation and solve commercial disputes.

    The term "mediator" as mentioned in these Rules refers to the professional personnel specially engaged by the mediation center to provide commercial mediation services for the parties in accordance with the prescribed conditions and procedures.

    The mediation center and its mediators shall carry out mediation activities in accordance with these rules and shall be protected by law. No unit or individual may illegally interfere.

    Article 3 these rules are applicable to the mediation of commercial disputes between the following parties:

    （1） Commercial disputes in which both parties are mainland enterprises, institutions and natural persons;

    （2） Commercial disputes in which one or both parties are enterprises, institutions or natural persons in the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region;

    （3） Commercial disputes in which one or both parties are foreign enterprises, institutions or natural persons.

    The commercial disputes mentioned in the preceding paragraph include disputes in the fields of trade, investment, merger and acquisition, finance, securities, insurance, intellectual property, real estate, engineering construction, transportation and other commercial and maritime matters.

    Article 4 a mediation center and its mediators shall abide by the following principles in carrying out mediation activities:

    （1） Mediation should be carried out on the basis of the parties' willingness, equality and true expression of will;

    （2） It does not violate the applicable laws, regulations, policies and international practices for dispute settlement;

    （3） When mediators preside over mediation, they should adhere to principles, conduct justice, be diligent and responsible, and abide by the obligation of confidentiality;

    （4） Respect the rights of the parties and shall not prevent the parties from safeguarding their rights through arbitration, judicature and other channels.

    （5） The proposed dispute resolution scheme shall not violate the mandatory provisions of laws and regulations, and shall not infringe upon the interests of others and public interests;

    （6） Respect the other party's exercise of rights;

    （7） Abide by the provisions on confidentiality of mediation and relevant agreements;

    （8） Other obligations stipulated by laws, regulations and these rules.

    After the initiation of mediation procedure, the parties shall automatically suspend or suspend the commercial act or litigation procedure related to the dispute within the scope permitted by law.

    Chapter III mediation services and obligations of mediators

    Article 10 a mediation center and its mediators shall provide the parties with the following mediation services:

    （1） To examine and accept mediation applications;

    （2） Guide the parties to choose mediators independently or appoint mediators by entrustment;

    （3） Organize and carry out mediation activities in accordance with these rules to maintain mediation order;

    （4） Promote the parties to form a dispute resolution scheme on the basis of equal consultation and mutual understanding, and help the parties to reach a mediation agreement voluntarily;

    （5） Urge the parties to consciously perform the mediation agreement;

    （6） After the mediation fails, guide the parties to seek other dispute resolution ways according to law;

    （7） Other services related to the success of mediation.

    The mediation center shall provide necessary conditions, services and guarantees for mediators to perform their duties and carry out mediation, and manage and supervise mediation activities.

    Article 11 when conducting mediation, a mediator shall abide by the following provisions:

    （1） These rules and the rules for mediators shall not be violated;

    （2） No act of favoritism, misleading, deceiving or coercing the parties;

    （3） It is not allowed to ask for or accept the property of the parties or seek other illegitimate interests through mediation;

    （4） It shall not force or induce the parties to reach a mediation agreement;

    （5） The parties shall not be prevented from safeguarding their rights through other dispute resolution channels in accordance with the law because of mediation or failure of mediation;

    （6） It shall not disclose the facts of a dispute case, mediation information, privacy and trade secrets of the parties, except as otherwise provided by law;

    （7） Other obligations stipulated by laws, regulations and these rules.

    Article 12 If a mediator is complained by a party for violating these rules and the rules for mediators, the mediation center shall order him to correct in time; If the circumstances are serious, the mediation center shall dismiss him in accordance with the prescribed procedures. If the mediator violates the law and regulations and causes losses to the parties, the parties may investigate their legal responsibilities according to law.

    The mediator and the mediation center shall not be liable for the consequences of mediation in accordance with these rules, except for intentional or gross negligence violations.

    Chapter IV mediation procedure

    Section 1 acceptance of cases

    Article 13 if the parties have an agreement on Mediation in the dispute settlement provisions of the contract, or agree to resolve the dispute by mediation after the dispute occurs, one or both parties may apply to the mediation center for mediation.

    If there is no mediation agreement between the parties, one party may also apply to the mediation center for mediation, but only with the consent of the other party can it be accepted.

    Article 14 when applying for mediation, the parties shall submit the following materials to the mediation center:

    （1） Application for mediation. The application shall state:

    1. The name, legal representative, domicile, correspondence address and contact information of the applicant and the respondent;

    2. The willingness of both parties to accept mediation voluntarily or to request mediation unilaterally;

    3. The facts of the case, the matters in dispute, the appeal for mediation and its rationale;

    4. Other problems to be explained.

    （2） Evidence materials and other relevant supporting documents.

    （3） Where an agent is appointed, a written power of attorney shall be submitted.

    Article 15 if the mediation center receives the mediation application materials and considers that they meet the acceptance conditions after examination, it shall timely serve the acceptance notice and application materials to the respondent; The respondent shall, within 10 working days from the date of receiving the materials, inform the mediation center in writing of the opinions of agreeing or disagreeing with the mediation; Failure to inform within the time limit shall be deemed as refusal of mediation.

    If the respondent agrees to mediation, the mediation center shall make a decision on acceptance and send it to the applicant and the respondent in time.

    If the mediation center decides to accept the case, it shall register the case for mediation.

    Article 16 after receiving the acceptance decision, the mediation applicant and the respondent shall pay the mediation registration fee to the mediation center in accordance with the provisions.

    Article 17 The Mediation Center shall not accept the application for mediation under any of the following circumstances:

    （1） According to the laws and regulations of our country, mediation is not allowed to solve the cases;

    （2） Cases not within the scope of the mediation center;

    （3） A case in which the respondent does not give his opinion or explicitly refuses to mediate within a specified period of time.

    The mediation center shall make a notice of rejection of a case that is not accepted and deliver it to the applicant and the respondent in a timely manner.

    If one or both parties refuse to pay the mediation registration fee, the mediation center may withdraw the acceptance decision.

    Section 2 selection and designation of mediators

    Article 18 when serving the acceptance decision, the mediation center shall inform the parties at the same time that, within 10 working days from the date of receiving the acceptance decision, the mediation center shall, in accordance with the provisions of this section, independently select mediators from the list of mediators of the mediation center, or entrust the mediation center to appoint mediators.

    Article 19 in the mediation of general dispute cases, a mediator may be selected or appointed as the sole mediator.

    For the mediation of major difficult disputes or cases with great difficulties in the application of law, professional field, technical factors, working language, etc., multiple mediators may be selected or designated to participate in the mediation by agreement of the parties or by the mediation center with the consent of the parties.

    If more than one mediator is selected or appointed, the mediation center shall appoint one of them as the chief mediator.

    Article 20 the selection or appointment of mediators shall be made from the mediators who have the qualifications, professional expertise, mediation experience, working language and other conditions and abilities required for mediating the case.

    The register of mediators shall contain such information as the practicing (Professional) qualification, professional and technical position, professional field and working language of mediators.

    Article 21 the selection of mediators shall be made by the two parties independently selecting at least two or more persons from the list of mediators. According to the agreed number, the mediation center shall select one or more persons selected by both parties from the list of candidates as mediators of the case.

    If the candidates selected by the parties do not overlap or the number of overlapping persons is insufficient, the mediation center shall appoint one or more mediators as the mediators of the case, subject to the consent of the parties.

    The parties may give up their own choice and jointly entrust the mediation center to appoint the mediator of the case.

    Article 22 the parties may, according to the needs of dispute resolution and with the consent of the mediation center, jointly select professionals other than those on the list of mediators to act as temporary mediators in the case.

    The interim mediator has the same rights and obligations as the mediator.

    Article 23 If a mediator accepts the selection of the parties or the appointment of the mediation center, he / she shall guarantee that he / she can fully perform his / her duties, and disclose whether there are circumstances that may affect the independence and impartiality of his / her mediation.

    If a mediator is unable to perform his duties under the circumstances specified in the preceding paragraph, he shall inform the mediation center in time, and the mediator shall be re selected or appointed.

    Article 24 a mediator who has been selected or appointed shall voluntarily withdraw under any of the following circumstances, and the parties may also apply for his withdrawal:

    （1） Is a party to the case or a close relative of a party or agent;

    （2） Having an interest in the case;

    （3） Having other relations with the parties to the case, which may affect their mediation independence and impartiality.

    The withdrawal of the mediator shall be reviewed and decided by the mediation center, and the mediator shall be re selected or appointed.

    If the withdrawal of a mediator occurs after the mediation procedure begins, the effectiveness of the procedure shall be decided by the new mediator after consulting the mediation center.

    Article 25 If a mediation center accepts the entrustment of a people's court, arbitration commission or other dispute settlement agency to mediate a dispute case, the selection or appointment of mediators shall be handled in accordance with the provisions of this section.

    If the mediation center is invited to mediate a dispute case jointly with relevant dispute resolution agencies, the mediators involved shall be designated by the mediation center.

    Section 3 procedures and methods of mediation

    Article 26 a mediator shall start the mediation procedure within 10 working days from the date of accepting the selection or appointment.

    In the stage of starting mediation, the mediator should inform the parties of the nature of mediation, mediation procedures, legal consequences of mediation, rights and obligations of the parties in oral or written form, but shall not make any commitment or guarantee to the mediation results.

    Article 27 mediation meetings are generally arranged in the place where the mediation center is located.

    If the parties agree otherwise, or if the mediator considers the convenience of the parties and the parties agree, the mediation meeting may be held at the place provided by the parties or at a place other than the mediation center. The expenses arising therefrom shall be borne by the proposing party or by both parties equally.

    Article 28 the language to be used in mediation shall be determined by the parties concerned through consensus according to their needs; If the negotiation fails, the mediator shall consult with the mediation center for confirmation.

    If the parties request to provide translation services for the terms of mediation work, the required translation shall be engaged by the parties or the mediation center, and the expenses for engaging the translation shall be borne by the parties.

    Article 29

    Before a mediation meeting is held, the mediator shall understand and analyze the facts of the case, the disputed matters, the demands and justifications of all parties, review the evidence, and require the parties to supplement and correct relevant materials, draw up a mediation plan, and make other preparations. On this basis, the mediator shall determine the plan, time and place of the mediation meeting.

    The mediator shall notify the parties and their agents of the time, place and necessary preparations of the mediation meeting five working days before the meeting is held; It can also negotiate with the parties to determine the way, time and place of the mediation meeting.

    Article 30 according to the needs of dispute resolution, the mediation meeting may be conducted by face-to-face joint consultation or back-to-back separate consultation before face-to-face joint consultation; At the request of the parties or with the consent of the parties, it can also be conducted by means of teleconference or online video conference.

    Article 31 when presiding over a mediation meeting, a mediator shall fully listen to the parties' statements on the facts of the case, the matters in dispute, the demands for mediation and their justifications, explain the relevant laws, regulations, policies and international practices, and guide the parties to put forward and form a dispute settlement plan on the basis of equal consultation, clear responsibilities, mutual understanding and accommodation, Urge the parties to reach a mediation agreement voluntarily.

    If mediation fails at one meeting, the mediator shall negotiate with the parties to determine the arrangement for holding another mediation meeting.

    Article 32 according to the needs of dispute settlement, relevant witnesses may be invited to attend the mediation meeting to give evidence at the request of the parties or at the suggestion of the mediator and with the consent of the parties; Relevant experts may also be invited to provide advisory or expert opinions on the application of law, legal identification, evidence identification and other relevant technical issues, and may be invited to attend mediation meetings as expert witnesses.

    The expenses arising from the matters listed in the preceding paragraph shall be borne by the parties through consultation.

    Article 33 If the parties reach a dispute settlement agreement voluntarily under the auspices of a mediator, a mediation agreement shall be concluded. The mediation agreement shall be concluded with reference to the following contents:

    （1） The basic information of the parties and their agents;

    （2） The main facts of the case, the matters in dispute and the claims of the parties concerned;

    （3） The content of the mediation agreement reached by the parties, the way and time limit of performance;

    （4） Legal liability for breach of the agreement;

    （5） The parties shall sign and seal, and the mediator shall sign and seal the mediation center;

    （6） Signature and effective date.

    The mediation agreement shall be drafted and signed by the parties in accordance with the parties' willingness and specific agreement to resolve the dispute.

    Each party shall hold one copy of the mediation agreement, and the mediation center shall keep one copy.

    Between the parties only

    If a settlement is reached on some of the disputes, the relevant mediation agreement may be concluded with reference to the provisions of paragraph 1.

    Article 34 a mediator shall complete the mediation within 60 working days from the date of accepting the selection or appointment; The mediation period can also be agreed by the parties themselves, or determined by the mediator and the parties through consultation.

    If no mediation agreement has been reached at the end of the mediation period, the mediation period may be appropriately extended at the request of the parties and with the consent of the mediator, and the resulting expenses shall be borne by the parties.

    Article 35 the mediation procedure shall be terminated under any of the following circumstances:

    （1） One or both parties voluntarily withdraw the mediation application after the mediation procedure begins;

    （2） No mediation agreement has been reached at the end of the mediation period, and the parties have not requested an extension of the mediation period;

    （3） One or both parties request to terminate the mediation procedure in the process of mediation;

    （4） The mediator decides to terminate the mediation procedure because the parties have seriously violated these rules or think that mediation is no longer possible;

    （5） Other circumstances leading to the termination of the mediation procedure.

    The mediation procedure is terminated due to the circumstances specified in (3) (4) of the preceding paragraph, but

    If both parties indicate that they are willing to continue to accept mediation, the mediation center shall decide at its discretion whether to resume the mediation procedure.

    If mediation is terminated, the mediation center shall register the termination of mediation, stating the reasons and grounds for the termination, the time of termination, and the opinions of the parties.

    Article 36 if mediation fails at the end of the time limit, the mediator shall inform or guide the parties to choose arbitration, litigation or other dispute resolution channels on their own and continue to settle their disputes according to the procedures prescribed by law.

    Article 37 when a mediation center accepts the entrustment of a people's court to mediate a dispute case, the connection between the mediation center and the litigation procedure shall be handled according to the following methods:

    （1） In case of entrusted mediation of a case in litigation, the relevant litigation procedures may be postponed and the limitation period of action may be recalculated upon the application of the parties and with the consent of the people's court;

    (two) if mediation is not completed before the mediation is made, the people's court may exempt the mediation procedure before proceeding.

    Cases entrusted by an arbitration commission for mediation shall be handled with reference to the provisions of the preceding paragraph.

    thirty-eighth

    In arbitration, litigation or other dispute settlement procedures after mediation fails, the parties shall not provide or use the following information or materials as evidence:

    （1） The fact that the parties apply for mediation or agree to accept mediation;

    （2） The statement or admission of the disputed facts made by the parties in the mediation procedure;

    （3） Solutions or suggestions put forward by the parties in the process of mediation;

    （4） The dispute resolution proposal proposed by the mediator;

    （5） A document specially prepared by a party for mediation proceedings.

    The parties may not require the mediator to act as a witness in the dispute settlement procedure after the mediation fails, unless otherwise provided by law.

    Article 39 a mediator shall not act as an arbitrator, a judge, a jury, a mediator, a witness or an agent of the parties in an arbitration, litigation or other dispute settlement procedure after the original dispute mediation fails, unless otherwise agreed by the parties.

    Article 40 mediation procedures and results presided over by mediators shall not be made public. Mediators, parties and their agents, witnesses, consultants, experts, translators and other staff involved in the mediation shall not disclose the case information, mediation information, privacy and trade secrets of the parties that they know in the process of participating in the mediation, except those that should be disclosed, can be disclosed or the parties agree to disclose according to the law.

    Section 4 performance of mediation agreement

    Article 41 a mediation agreement reached by the parties after mediation has the legal binding force of a civil contract, and the parties shall consciously perform the agreed obligations in accordance with the agreement.

    If the debtor party has voluntarily performed the obligations stipulated in the agreement, the creditor party shall automatically give up all claims related to the original dispute, unless otherwise provided by law.

    Article 42 If, according to the agreement on the mode of performance in the mediation agreement or the agreement of the parties at the time of performance of the agreement, the debtor party pays the performance bond in advance to promote the performance of the mediation agreement, the mediation center may agree to collect and keep the performance bond on its behalf, and return it to the parties after the mediation agreement has been fully performed.

    According to the agreement of the parties, the mediation center can help the parties to apply for deposit with the notary organization or the people's court with jurisdiction if the way of handling the subject matter of the creditor's rights is adopted to ensure the performance of the mediation agreement.

    fourth

    Article 13 The Mediation Center shall supervise the performance of the mediation agreement and urge the parties to consciously perform the agreed obligations.

    In the process of the performance of the mediation agreement, if there is a dispute between the parties on the content of the mediation agreement, it can be submitted to the mediation center for review or mediation again. If the mediation agreement is really wrong or has major defects, it should be corrected.

    If there is a dispute between the parties over the performance of the mediation agreement, they may apply to the mediation center for supervision or further mediation, or they may bring an arbitration or lawsuit to the arbitration commission or the people's court for the original dispute.

    Article 44 in order to enhance the enforceability of a mediation agreement, with the consent of the parties, the mediation center may help the parties to take the following measures:

    （1） We ask the people's court to transform the mediation agreement reached by the people's court into a court mediation agreement;

    （2） To request the Arbitration Commission to convert the mediation agreement into an arbitration award or an arbitration mediation agreement in accordance with the arbitration provisions;

    （3） Apply to the people's court for judicial confirmation of the mediation agreement;

    （4） The mediation agreement with payment content shall be applied to the notary organization for notarization of obligatory documents with compulsory enforcement effect.

    If the debtor party fails to perform or improperly performs the obligations specified in the mediation agreement or relevant legal documents after taking the measures specified in the preceding paragraph, the creditor party shall

    It may apply to the people's court with jurisdiction for compulsory execution in accordance with the law. The creditor party may include the penalty, overdue fine, interest, etc. arising from the debtor Party's failure to perform or improper performance in the subject matter of application for enforcement.

    Chapter V mediation fees

    Article 45 If a party applies for mediation or agrees to accept mediation, he shall pay the mediation registration fee and mediation service fee to the mediation center.

    Article 46 the standard for collecting the mediation registration fee shall be formulated by the mediation center, and both parties shall pay the fee to the mediation center after receiving the acceptance decision.

    Mediation service fee shall be charged in accordance with the proportion of the object in dispute or by time. The specific charging method and standard shall be formulated by the mediation center.

    Mediation fees shall be borne equally by both parties, unless otherwise agreed by the parties.

    The method and specific standard for payment of mediation service fee shall be determined by the mediation center and the parties through negotiation, and a fee agreement shall be signed, and the parties shall pay to the mediation center according to the agreed payment method and time limit.

    If the mediation procedure is terminated due to the actual situation, the mediation center may, at its discretion, return part of the fees paid by the parties after deducting the mediation service costs already paid.

    Article 47 at the request of one party or with the consent of both parties, expenses for inviting witnesses, hiring experts, translators and other relevant personnel, expenses for expert consultation, legal investigation, judicial appraisal, etc., and expenses for renting mediation meeting places and handling relevant legal procedures, It shall be undertaken by the requesting party or by both parties through negotiation.

    Chapter VI mediation archives

    Article 48 A Mediation Center shall, after the completion of each mediation case, establish a mediation case file and keep it on file according to the year and category by registering the mediation case, the mediation application materials, the acceptance decision, the minutes of the mediation meeting, the mediation agreement or the termination record of the mediation procedure, and the closing report.

    Article 49 The Mediation Center shall keep the mediation files properly to ensure the integrity and safety of the mediation files.

    The mediation center shall not allow any unit or individual other than the parties to view or borrow the mediation files, and shall not disclose the materials and information collected and recorded in the mediation files, except as otherwise provided by law.

    Chapter VII supplementary provisions

    Article 50 the contents listed in this article are the model clauses for the parties to conclude a commercial contract to agree that the mediation of this mediation center shall be selected as the prior procedure for the settlement of disputes. The content of the model mediation clause is as follows:

    All parties to this contract agree that any dispute arising from or in connection with this contract shall be submitted to Shenzhen Qianhai international commercial mediation center for mediation in accordance with its mediation rules if it can not be settled through self negotiation, and the mediation rules shall be automatically incorporated into this clause.

    Article 51 in order to facilitate the parties and improve the efficiency of mediation, the mediation center shall use modern network and information technology to open up online mediation service mode, and the specific measures shall be stipulated separately.

    Article 52 A mediation center may, at the request of a party, provide such services as legal consultation, legal investigation, dispute resolution consultant, and legal professional training. The specific methods shall be stipulated separately.

    Article 53 the mediation center may, in accordance with these rules, formulate detailed rules or special provisions for the implementation of all procedures and links of mediation, and formulate various forms of documents required for mediation activities.

    Article 54 these Rules shall be formulated, revised and interpreted by the Council of the mediation center.

    Article 55 these Rules shall come into force as of the date of promulgation.