Law of China on Mediation and Arbitration of Labor Disputes Ⅲ

Section 2 Application and Acceptance

Article 27 The time limit for application for arbitration in labor disputes is one year. The validity of arbitration shall be calculated from the date the parties know or shall have known the infringement of their rights.

The validity of arbitration as prescribed in the previous paragraph shall be interrupted where either party claims its rights against the other party; or the relevant department requests for the right of relief, or the other party agrees to perform its obligations. The validity of arbitration shall be calculated again from the time of interruption.

Where the parties cannot apply for arbitration within the validity of arbitration as prescribed in Paragraph One of this article due to force majeure or other proper reasons, the validity of arbitration is suspended. The validity of arbitration shall resume following the non-existence of the reason for suspension.

Where a dispute arises within the subsistence of labor relations due to labor remunerations in arrears, the laborer that applies for arbitration shall not be restricted by the validity of arbitration prescribed in Paragraph One of this article. However, where the labor relations are terminated, the application for arbitration shall be submitted within one year of the termination of the labor relations.

Article 28 The applicant that applies for arbitration shall submit a written arbitration application and submit duplicates in accordance with the number of the respondents.

The arbitration application shall set out the following matters:

1. Name, gender, age, occupation, working unit and domicile of the laborer; name and domicile of the employing unit and name and duties of the legal representative or person-in-charge;

2. the request for arbitration and the facts and reasons on which such request is based; and

3. evidence and the source thereof, the name and domicile of the witness.

Where the applicant has difficulty in submitting a written arbitration application, an oral application may be made and recorded by the labor dispute arbitration commission which informs the other party.

Article 29 The labor dispute arbitration commission shall, within five days of receipt of the arbitration application, accept the application and inform the applicant if it considers that the acceptance conditions are fulfilled; if the acceptance conditions are not fulfilled, it shall notify the applicant in writing and state the reason. Where the labor dispute arbitration commission does not accept or fails to make a decision within the time limit, the applicant may initiate litigation to the people's court in respect of such labor dispute.

Article 30 The labor dispute arbitration commission shall, after acceptance of the arbitration application, serve a duplicate of the arbitration application on the respondent within five days.

The respondent shall, upon receipt of the duplicate of arbitration application, submit a statement of defense to the labor dispute arbitration commission within 10 days. The labor dispute arbitration commission shall, within five days of receipt of the statement of defense, serve a copy of the defense on the applicant. Where the respondent does not submit a statement of defense, the arbitration proceedings shall not be affected.

Section 3 Hearing and Award

Article 31 The award of labor disputes cases by labor dispute arbitration commissions adopts the arbitral tribunal system. The arbitral tribunal shall comprise three arbitrators and has a chief arbitrator. Simple labor dispute cases may be arbitrated solely by an arbitrator.

Article 32 The labor dispute arbitration commission shall, within five days of acceptance of arbitration application, inform the applicant of the composition of the arbitral tribunal in writing.

Article 33 Where an arbitrator is under any of the following circumstances, he shall withdraw, and the parties also have the right to submit written or oral withdrawal application:

1. he is a party to the case or a close relative of the parties or agents;

2. he has an interest in the case;

3. he has other relations with the parties to the case and their agents which may affect fair award;

4. he has meetings with the parties or agents without authorization or send gifts to the parties or agents.

The labor dispute arbitration commission shall timely make a decision on withdrawal application and inform the parties orally or in writing.

Article 34 Where an arbitrator is under the circumstances prescribed in Item 4 of Article 33 hereof or accepts bribe, practices graft or perverts the law, he shall assume legal liability in accordance with the law and the labor dispute arbitration commission shall dismiss him.

Article 35 The arbitral tribunal shall inform both parties of the date and place of hearing in writing five days before the hearing. Where either party has a proper reason, an extension of hearing may be requested three days before the hearing. The labor dispute arbitration commission shall make a decision on extension or not.

Article 36 Where the applicant has received a written notification but fails to be present without proper reason or withdraws from the hearing without the approval of the arbitral tribunal, it may be deemed revocation of arbitration application.

Where the respondent has received a written notification but fails to be present without proper reason or withdraws from the hearing without the approval of the arbitral tribunal, he may be absent from the award.

Article 37 Where the arbitral tribunal considers that verification is required for specialized issues, the parties may agree on the verification organization, where there is no agreement or no agreement can be reached between the parties, verification shall be done by the verification organization designated by the arbitral tribunal.

The verification organization may, at the request of the parties or the arbitral tribunal, dispatch verification personnel to participate in the hearing. The parties may raise questions to the verification personnel with the permission of the arbitral tribunal.

Article 38 The parties shall have the right to cross-examine evidence and debate in arbitral proceedings. Upon the completion of cross-examination of evidence and debate, the chief arbitrator or the sole arbitrator shall solicit the final opinion of the parties.

Article 39 The arbitral tribunal shall, upon verification that the evidence provided by the parties are substantiated, confirm that it is the basis of the acknowledged facts.

Where the laborer fails to give evidence in relation to the arbitration request handled and managed by the employing unit, the arbitral tribunal may request the employing unit to provide such evidence within the prescribed time limit. Where the employing unit fails to provide such evidence within the prescribed time limit, it shall assume the unfavorable consequences.

Article 40 The arbitral tribunal shall make a written record of the hearing. The parties and other participants of arbitration shall have the right to make correction if they consider that the records of their statements are omitted or in error. If no supplementation is made, such application shall be recorded.

The written record shall be signed or sealed by the arbitrators, recording personnel, the parties and other participants of arbitration.

Article 41 The parties may settle on their own after application for labor dispute arbitration. Where the settlement agreement is reached, the arbitration application may be withdrawn.

Article 42 The arbitral tribunal shall mediate before making an award.

Where an agreement is reached after mediation, a statement of mediation shall be prepared by the arbitral tribunal.

The statement of mediation shall state the request for arbitration and the result agreed by the parties. The statement of mediation shall be signed by arbitrators and sealed by the labor dispute arbitration commission and serve on the parties. The statement of mediation shall carry legal effect after acknowledgement.

If mediation fails or either party gives back before the service of the statement of mediation, the arbitral tribunal shall make an award timely.

Article 43 Where the arbitral tribunal makes an award to labor dispute cases, it shall do so within 45 days of the acceptance of the arbitration application by the labor dispute arbitration commission. If an extension is required due to complexity of the case, an extension may be allowed with the approval of the officer of labor dispute arbitration commission and the parties shall be informed in writing, but the extension may not exceed 15 days. If no arbitral award is made after the time limit, the parties may initiate litigation in relation to the labor dispute to the people's court.

Where the arbitral tribunal makes an award to a labor dispute case and partial facts are clear, an award may be made on such parts.