您现在的位置:  首页 > 调解与ADR > SFDRC-Mediation Rule

SFDRC-Mediation Rule


Shenzhen Securities and Futures Dispute Resolution Centre

 

Mediation Rules (Trial)

 

 Article 1 Objectives

These mediation rules are made in accordance with Bylaws of Shenzhen Securities and Futures Dispute Resolution Centrehereinafter the “Bylaws” for the purpose of regulating mediation activities, clarifying mediation proceedings, guaranteeing smooth dispute mediation process of Shenzhen Securities and Futures Dispute Resolution Centrehereinafter the “Resolution Centre and promoting the healthy development of Shenzhen capital market.

 

Article 2 Mediation Principles

Mediation shall follow the principles of independence, voluntariness, impartiality, convenience and effectiveness.

Article 3 Jurisdiction

Commercial disputes arising from or in connection with the securities and futures business or other business in the capital market between investors, securities and futures institutions or other capital market entities may be referred to the Resolution Centre for mediation.

A dispute may not be accepted by the Resolution Centre in any of the following circumstances:

     (1) Reporting and complain of acts of the related institutions and their employees suspected of violating laws and regulations, and requesting for investigation and punishment;

    (2)Disputes involving labor disputes, internal punishments or other non-securities or non-futures business disputes of the related institutions;

          (3)No specific relative party or specific issue in dispute in the mediation application;

         (4)No relevant evidence can be provided by the party / the parties to prove the claims;

         (5)The dispute has already been mediated by the Resolution Centre;

(6)For other reasons, the Resolution Centre holds that it is inappropriate to mediate.

     Article 4 Scope of Application

The parties shall be deemed to have agreed to mediation in accordance with these rules if they have agreed to mediation by the Resolution Centre.

The parties shall be deemed to have agreed to mediation in accordance with these rules if they are members of Securities Association of ShenzhenShenzhen Futures Association or Shenzhen Asset Management Association, and have promised to accept the mediation of the Resolution Centre.

If the parties have agreed otherwise and which is consented by the Resolution Centre, the parties’ agreement shall prevail.

 

    Article 5 Request for Mediation

 

Any party, both parties or multi-parties may apply to the Resolution Centre for mediation.

   

Any party (ies) applying to the Resolution Centre for mediation shall submit a written Request for Mediation. The Request for Mediation shall include a brief introduction to the facts under dispute, related materials, and the effective contact information of the parties or their representative(s). A Power of Attorney shall be forwarded if a party is represented by its representative(s) in the mediation.

 

 

 

Article 6 Acceptance of Joint Application

Under the circumstance of joint application, the Resolution Centre shall dispatch to the parties the Notice of Mediation together with the Mediation Rules, the Panel of Mediators and other relevant materials within 3 working days from the date of receipt of the mediation application.

 

 Article 7 Acceptance of Unilateral Application

 

If a party unilaterally applies for mediation and the respondent(s) complies with the circumstance stipulated in Article 4(2), the Resolution Centre shall send to each party a Notice of Mediation together with the Mediation Rules, the Panel of Mediators and other relevant materials.

   

If a party unilaterally applies for mediation and the respondent does not make a prior promise, the Resolution Centre shall send to the respondent(s) a Request for Mediation. If the respondent agrees to participate in the mediation, the Resolution Centre shall send to each party a Notice of Mediation together with the Mediation Rules, the Panel of Mediators and other relevant materials.

 If the respondent explicitly refuses mediation or does not reply within 5 working days from the date of receipt of the Request for Mediation, the Resolution Centre shall not accept the case.

 

 

 Article 8 Copies of Submissions

 

    The parties shall submit one copy of submissions if they specifically declare the submissions are only for mediators. When there is more than one mediator, additional copies shall be provided accordingly.

The parties shall submit submissions in duplicate unless they specifically declare the submissions are only for the mediator. When there are mutiple parties or there is more than one mediator, additional copies shall be provided accordingly.

 

Article 9 Mediation Fees and Costs

A dispute between a small or medium investor and a member of Securities Association of Shenzhen, Shenzhen Futures Association or Shenzhen Asset Management Association, or a dispute between members of Securities Association of Shenzhen, Shenzhen Futures Association or Shenzhen Asset Management Association shall be free of charge.

 

Article 10 Appointment of Mediator

 

Unless otherwise agreed by the parties, the mediation case shall be mediated by one mediator.

The parties shall appoint one mediator jointly from the Panel of Mediators provided by the Resolution Centre within 5 days from the date of receipt of the Notice of Mediation. Where the parties fail to jointly appoint the mediator within the prescribed time period, the mediator shall be appointed by the Resolution Centre.

 

    Article 11 Disclosure

The appointed mediator shall promptly and actively disclose to the Resolution Centre and the parties any circumstances likely to influence the independence or impartiality of mediation.

 

Article 12 Challenge and Replacement of Mediator

A party has the right to challenge the mediator.

In the event that a mediator is unable to fulfill his/her functions due to being challenged or other reasons, a substitute mediator shall be appointed in the manner stipulated in Article 10, unless the parties otherwise agreed.

 

Article 13 Conduct of Mediation

The mediator may mediate the disputes in such manner as he/she considers advantageous in facilitating settlement between  the parties, including, but not limited to:

 

Meeting separately or jointly with the parties and/or their representatives for mediation;

 

Communicating by writing, internet or telephone instead of meeting at scene

 

Requiring the parties to put forward written or oral suggestions or proposals; and

 

Presenting to the parties proposals for resolving the dispute, based on the circumstances as he /she understand them and in accordance with fair and reasonable principles .

 

 

Article 14 Time Limit for Mediation

 

The parties may agree on a time limit for mediation.

 

The mediator, on obtaining agreement from all the parties, may also set a  time limit for mediation.

 

Where no time limit has been set for the mediation, it shall conclude within 20 working days from the date when the mediator is confirmed, unless an extension is requested by all the parties.

 

Article 15 Mediation Agreement

 

Where a settlement is reached through mediation, a written settlement agreement shall be made and signed or sealed by the parties, unless the parties otherwise agreed.

 

 

Article 16 Termination of the Mediation

 

The mediation will shall be terminated, either:

 

Upon a mediation agreement being reached by the parties; or

 

Upon any party withdrawing from the mediation in writing, or refusing mediation in other manners; or

 

Upon the expiration of the time limit for mediation; or

 

Upon the mediator believing that further efforts at mediation will not solve the dispute and deciding to terminate the mediation; or

 

Upon either party initiating any arbitral, judicial or other dispute resolution proceedings in respect of the dispute; or

 

Upon the parties’ failure to agree on a mediator in the manner stipulated in Article 10, without consenting to the mediator the Resolution Centre appoints; or

 

Upon other circumstances that the Resolution Centre considers the mediation should be terminated.

 

Article 17 Combination of Mediation with Arbitration

Where the parties have reached a settlement agreement, for the purpose of making the terms legally enforceable, any of the parties may, pursuant to the arbitration clause in the settlement agreement, apply to the South China International Economic and Trade Arbitration Commission(Shenzhen Court of International Arbitration, hereinafter the “SCIA”) for an arbitral award on the terms of the settlement agreement under its Arbitration Rules in effect of applying for arbitration. 

 

When a settlement agreement fails to be achieved, any party shall have the right to submit the dispute to SCIA for arbitration pursuant to its arbitration agreement.

 

Article 18 Confidentiality

The mediation shall be held in camera, unless the parties otherwise agreed.

 

The mediator, the parties and their representativesthe staff of the Resolution Centre and any other persons participating in the mediation process are obliged to keep confidential the mediation process, contents of the settlement agreement and privacies, trade secrets acquired during the mediation, unless the parties otherwise agreed.

 

Article 19 Independence of Mediation Proceedings

Any opinions, views or statement, and any proposal or proposition expressing acceptance or opposition by either party or by the mediator in the process of mediation, cannot be invoked by either party as grounds for supporting any claim, defense or counterclaim in any judicial or arbitration proceeding.

 

The mediator shall not be appointed as arbitrator, or representative(s) , or witness of any party in any subsequent arbitration or judicial proceedings arising out of the same or connected dispute, unless the parties otherwise agreed.

 

Article 20 Self-discipline

If the party who is a member of Securities Association of ShenzhenShenzhen Futures Association or Shenzhen Asset Management Association, breaches its commitment, the other party can request the proper association to accord punishment pursuant to industrial self-discipline norms, and the Resolution Centre also can convey relevant circumstances to the proper association or supervision department.

 

Article 21 Entry into Effect

These rules shall go into effect as of the date of approval by the council of the Resolution Centre.

 

Article 22 Interpretation

These rules shall be amended or interpreted by the council of the Resolution Centre.

 





更多>>