Civil Procedure Law of the Peoples Republic of China – Arbitration
March 19, 2009
Chapter XXVIII Arbitration
Article 257 In the case of a dispute arising from the foreign economic, trade, transport or maritime activities of China, if the parties have had an arbitration clause in the contract concerned or have subsequently reached a written arbitration agreement stipulating the submission of the dispute for arbitration to an arbitral organ in the People’s Republic of China handling cases involving foreign element, or to any other arbitral body, they may not bring an action in a people’s court.
If the parties have not had an arbitration clause in the contract concerned or have not subsequently reached a written arbitration agreement, they may bring an action in a people’s court.
Article 258 If a party has applied for property preservation measures, the arbitral organ of the People’s Republic of China handling cases involving foreign element shall refer the party’s application for a decision to the intermediate people’s court of the place where the party against whom the application is made has his domicile or where his property is located.
Article 259 In a case in which an award has been made by an arbitral organ of the People’s Republic of China handling cases involving foreign element, the parties may not bring an action in a people’s court. If one party fails to comply with the arbitral award, the other party may apply for its enforcement to the intermediate people’s court of the place where the party against whom the application for enforcement is made has his domicile or where his property is located.
Article 260 A people’s court shall, after examination and verification by a collegial panel of the court, make a written order not to allow the enforcement of the award rendered by an arbitral organ of the People’s Republic of China handling cases involving foreign element, if the party against whom the application for enforcement is made furnishes proof that:
(1) the parties have not had an arbitration clause in the contract or have not subsequently reached a written arbitration agreement;
(2) the party against whom the application for enforcement is made was not given notice for the appointment of an arbitrator or for the inception of the arbitration proceedings or was unable to present his case due to causes for which he is not responsible;
(3) the composition of the arbitration tribunal or the procedure for arbitration was not in conformity with the rules of arbitration; or
(4) the matters dealt with by the award fall outside the scope of the arbitration agreement or which the arbitral organ was not empowered to arbitrate.
If the people’s court determines that the enforcement of the award goes against the social and public interest of the country, the people’s court shall make a written order not to allow the enforcement of the arbitral award.
Article 261 If the enforcement of an arbitral award is disallowed by a written order of a people’s court, the parties may, in accordance with a written arbitration agreement reached between them, apply for arbitration again; they may also bring an action in a people’s court.
Chapter XXIX Judicial Assistance
Article 262 In accordance with the international treaties concluded or acceded to by the People’s Republic of China or with the principle of reciprocity, the people’s courts of China and foreign courts may make mutual requests for assistance in the service of legal documents, in investigation and collection of evidence or in other litigation actions.
The people’s court shall not render the assistance requested by a foreign court, if it impairs the sovereignty, security or social and public interest of the People’s Republic of China.
Article 263 The request for the providing of judicial assistance shall be effected through channels provided in the international treaties concluded or acceded to by the People’s Republic of China; in the absence of such treaties, they shall be effected through diplomatic channels.
A foreign embassy or consulate accredited to the People’s Republic of China may serve documents on its citizens and make investigations and collect evidence among them, provided that the laws of the People’s Republic of China are not violated and no compulsory measures are taken.
Except for the conditions provided in the preceding paragraph, no foreign organization or individual may, without the consent of the competent authorities of the People’s Republic of China, serve documents or make investigations and collect evidence within the territory of the People’s Republic of China.
Article 264 The letter of request for judicial assistance and its annexes sent by a foreign court to a people’s court shall be appended with a Chinese translation or a text in any other language or languages specified in the relevant international treaties.
The letter of request and its annexes sent to a foreign court by a people’s court for judicial assistance shall be appended with a translation in the language of that country or a text in any other language or languages specified in the relevant international treaties.
Article 265 The judicial assistance provided by the people’s courts shall be rendered in accordance with the procedure prescribed by the laws of the People’s Republic of China. If a special form of judicial assistance is requested by a foreign court, it may also be rendered, provided that the special form requested does not contradict the laws of the People’s Republic of China.
Article 266 If a party applies for enforcement of a legally effective judgment or written order made by a people’s court, and the opposite party or his property is not within the territory of the People’s Republic of China, the applicant may directly apply for recognition and enforcement to the foreign court which has jurisdiction. The people’s court may also, in accordance with the relevant provisions of the international treaties concluded or acceded to by China, or with the principle of reciprocity, request recognition and enforcement by the foreign court.
If a party applies for enforcement of a legally effective arbitral award made by an arbitral organ in the People’s Republic of China handling cases involving foreign element and the opposite party or his property is not within the territory of the People’s Republic of China, he may directly apply for recognition and enforcement of the award to the foreign court which has jurisdiction.
Article 267 If a legally effective judgment or written order made by a foreign court requires recognition and enforcement by a people’s court of the People’s Republic of China, the party concerned may directly apply for recognition and enforcement to the intermediate people’s court of the People’s Republic of China which has jurisdiction. The foreign court may also, in accordance with the provisions of the international treaties concluded or acceded to by that foreign country and the People’s Republic of China or with the principle of reciprocity, request recognition and enforcement by a people’s court.
Article 268 In the case of an application or request for recognition and enforcement of a legally effective judgment or written order of a foreign court, the people’s court shall, after examining it in accordance with the international treaties concluded or acceded to by the People’s Republic of China or with the principle of reciprocity and arriving at the conclusion that it does not contradict the basic principles of the law of the People’s Republic of China nor violates State sovereignty, security and social and public interest of the country, recognize the validity of the judgment or written order, and, if required, issue a writ of execution to enforce it in accordance with the relevant provisions of this Law; if the application or request contradicts the basic principles of the law of the People’s Republic of China or violates State sovereignty, security and social and public interest of the country, the people’s court shall not recognize and enforce it.
Article 269 If an award made by a foreign arbitral organ requires the recognition and enforcement by a people’s court of the People’s Republic of China, the party concerned shall directly apply to the intermediate people’s court of the place where the party subjected to enforcement has his domicile or where his property is located. The people’s court shall deal with the matter in accordance with the international treaties concluded or acceded to by the People’s Republic of China or with the principle of reciprocity.
Article 270 This Law shall come into force as of the date of promulgation, and the Civil Procedure Law of the People’s Republic of China (for Trial Implementation) shall be abrogated simultaneously.
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Procedures for Arbitration in China
March 18, 2009
After exchanging documents and appointing arbitrators, the CIETAC will fix a hearing date. In some cases, the parties may elect to conduct the proceedings on a documents-only basis and dispense with the oral hearing. It can be done subject to the agreement of both parties and the tribunal. Documents-only arbitration is suitable for cases where there is no substantial dispute on matters of facts.
The three arbitrators will make an award after the hearing. If the arbitrators cannot reach a unanimous decision, it will be decided by simple majority. The Arbitration Rules provide that the tribunal shall render an award within six months after the tribunal is formed, although this time limit can be extended by the CIETAC. Delays are not unusual in practice, bearing in mind the fact that the three arbitrators involved may reside in different jurisdictions, and the award must be reviewed and approved by the CIETAC before it is issued. The award comes into legal effect the date on which it is made. If no time limit is specified in the award, the parties must automatically take it into effect; otherwise, they must execute the award within the time limit specified.
The tribunal has the power to decide in the award the arbitration fees and expenses to be paid by the parties to the CIETAC as well as any compensation for expenses occurred to be paid to the winning party.
If any claims or counterclaims were omitted from the award, either party has 30 days from the receipt of the arbitral award to request in writing an additional award. If the tribunal finds that such an omittance exists, they have 30 days from the receipt of the request to make an additional award. Similarly, the tribunal can on its own initiative make an additional award within a “reasonable period of time” following the arbitral award.
At any time before the final award is made, a partial award may be made on any issue, provided that it is considered necessary by the tribunal or that the parties request an award and the tribunal accepts. Failure to perform the award will not affect the continuation of proceedings nor prevent the tribunal from making a final award.
The Arbitration Rules also provide for a summary procedure to be followed where either parties with a disputed amount below RMB 500,000 or parties with a disputed amount above RMB 500,000 but who agree, in writing, to a summary procedure. Upon accepting the application for the summary procedure, the CIETAC shall issue a Notice of Arbitration. Only one arbitrator, who should be appointed by the parties by agreement within 15 days after receipt of the Notice, will preside over the summary procedure, failing which the Chairman of the CIETAC will appoint an arbitrator for the parties. Either oral hearing or a document-only arbitration may be adopted, as the CIETAC deems fit.
The time limits for filing of documents and publication of award under the summary procedures are shorter than those under normal procedures. The Respondent should file the defence and counterclaim within 20 days after the receipt of the Notice of Arbitration. The award shall be given within three months from the date that the tribunal was formed.
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Dallas’ compact-car parking spaces a growing problem
September 6, 2008
Dallas to consider changes as fitness of compact-car spaces shrinks
Like a heavy man wedged into a pair of bicycle shorts, it’s a tight fit and nobody’s too happy with the result.
While more drivers in Dallas are finding it difficult to fit their vehicles in compact-car parking spaces, Joanne Pratt worries that if the city eliminates the spaces, there will be fewer places to park.
Yet compact-car parking spaces seem to be everywhere in Dallas, especially on the day after Christmas when lots are full and the last thing you want to do is decide whether a decent parking spot is worth a door ding or a trip through an open window.
Now, after years of complaints from drivers and developers, the Dallas City Council appears poised to do something next year about the narrow spaces that so often crop up between behemoth SUVs.
“I have a small car, and it doesn’t even fit in these spaces. It’s virtually impossible to get in and out of the car,” said council member Angela Hunt, whose four-door Audi tests the 7 ½ -foot width of a compact space.
A standard parking space is a foot wider. But sometime in the late 1980s, no one seems to recall exactly when, the city adopted a policy that it hoped would help solve growing parking woes and nudge people toward buying smaller, more fuel-efficient cars.
Like so many programs that start out with good intentions, however, it didn’t quite work out that way.
“People don’t go into a car dealership and purchase a compact car based on the fact there is compact-car parking,” District 11 council member Linda Koop said.
And as more fuel-efficient cars, including hybrids, become more common, even they are proving to be a tight fit.
“The reality of the marketplace is that even the hybrids are big,” said Theresa O’Donnell, director of the city’s Development Services department.
At a recent council meeting, Ms. Koop broached the subject of compact-car parking with an offhanded comment that she would like to see it go away.
Her aside prompted a resounding chorus from fellow council members who, almost to a person, said that changes must be made.
“It hasn’t been as effective as a lot of people thought it would be,” council member Jerry Allen said.
During a recent busy lunch rush at Eatzi’s on Oak Lawn Avenue, the problem was as clear as yellow stripes on black asphalt.
“I’d be curious to see how many people have door dings in spaces like this,” said Russ Plum of Frisco.
Mr. Plum and three friends were grabbing a quick takeaway lunch, but his friend Patrick Garcia had a tough time squeezing his Dodge Durango into one of the compact-car spots.
Mr. Garcia said that when he goes out in central Dallas “you’re forced pretty much to valet.”
The problem might be clear, but a solution could be complicated.
If the council gets rid of compact-car parking but requires developers to provide the same number of spaces per lot, more land will have to be devoted to parking. If it lowers the required number of spaces per lot, there will be less parking to go around. Less parking in lots means more parking in streets, with cars spilling into neighborhoods, such as those along Greenville Avenue.
“In some areas, it’s not as problematic. But again, where you have the restaurant adjacent to neighborhoods, it really does create friction,” said David Cossum, assistant director of Development Services.
Mr. Cossum likely will be in charge of bringing recommendations to the council next year on how to fix the compact-car parking problem.
The issue will have to be reviewed carefully, and easy solutions aren’t likely to be found, he said.
And for those drivers who are hoping to see the narrow spaces disappear at a favorite restaurant or shop, don’t hold your breath.
It’s unlikely that existing spaces will disappear in the short term, Ms. Koop said. Restriping and retrofitting lots would be costly and confusing, city planners agreed.
Neil Emmons, a veteran city plan commissioner who has studied the parking issue, said the most logical solution would be to permit new parking lots to be smaller, with the understanding that in the future, more people in Dallas will be walking or using public transportation.
“If I were going to make a recommendation, I would say reduce the number of spaces required, so that all of the spaces might have a wider stripe but require no more land usage,” he said.
As it stands, the general requirements for developers in the city are: Restaurants must have one parking space for every 100 square feet of interior space. Retail stores must have one space for every 200 square feet, and offices must have one space for every 300 square feet.
For a developer, that can quickly add up to a lot of pricey concrete.
Frequently, a builder will turn to compact spaces to fulfill the parking requirements with less concrete and less land, said Willie Cothrum, a former council member who now lobbies City Hall on behalf of businesses.
Under city ordinances, a builder can have as much as 35 percent of a lot devoted to compact-car spaces in most parts of Dallas, Mr. Cothrum said.
If council members decided to simply do away with compact-car parking without addressing parking requirements overall, developers would have to devote more land to parking, Mr. Cothrum said.
That’s something that neither developers nor council members seem to want.
“It doesn’t make any sense to do that because it’s not a good use of land,” Ms. Hunt said.
So with the new year, new kinds of parking lots are likely to be conceived in Dallas. Expect them to hold fewer vehicles but more comfortably.
“What I really think is going to happen in a lot of our new developments, we’re asking that it be sustainable, more walkable, so you’ll have less need [for] cars,” Ms. O’Donnell said.
THE PROBLEM: Narrow compact-car parking spaces that pose a tight fit even for the fuel-efficient cars for which they were intended.
CURRENT REGULATIONS: Up to 35 percent of a parking lot can be designated for compact-car spaces, which at 7 ½ -feet wide are a foot narrower than regular slots.
POSSIBLE SOLUTIONS: Do away with compact spaces, at least in new developments. New parking lots either would have to use more land to meet current requirements, or the city would reduce the required number of spaces, meaning lots overall could be smaller.
Source: http://www.dallasnews.com
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Rome’s Car-Parking Chaos Sparks “Barbarian” Debate
September 6, 2008
Visitors leaving Rome with anecdotes of cars parked on zebra crossings, blocking pavements or two abreast on narrow streets would probably think the locals would welcome plans for a giant new carpark.
But this is Italy, where the calmest of conversations looks like a row, and debate between conservationists and modernizers over a carpark on an ancient hillside has escalated into a raging debate with both sides calling each other “barbarians.”
Some of the biggest names in Italian culture and politics – film director Franco Zeffirelli, pop star Adriano Celentano and centre-left opposition leader Walter Veltroni – are involved.
In a city that is effectively an open-air museum, bulldozers starting public works are almost always halted by archaeologists hailing the discovery of yet another ancient ruin.
Pincio hill is a Neoclassical terraced garden designed by Giuseppe Valadier in the early 19th century astride 1st Century BC ruins that conservationists have dubbed a “Secret Pompeii.”
City hall chose Pincio two years ago for a seven-storey, 726 space carpark to allow the narrow streets between Piazza del Popolo and Piazza di Spagna — one of Europe‘s poshest shopping districts – to be reserved for pedestrians.
In a city whose drivers American travel writer Bill Bryson said “park their cars the way I would park if I had just spilled a beaker of hydrochloric acid in my lap,” there is a clear need for more orderly parking and more public transport.
The debate essentially forces Romans to choose between their passion for cars – Italy has one of highest densities of car ownership in the world — and pride in their ancient culture.
The Pincio carpark was approved when Veltroni was mayor but Rome is now run by right-winger Gianni Alemanno. Traditionalists in Italy’s conservative government want him to ditch the plan — as do some leftists like Celentano, who called it “degenerate.”
In the latest round, Culture Minister Sandro Bondi – a poet – accused the centre left of turning Rome into “a supermarket for mass tourism.” In a letter to one newspaper, he proposed an international contest to solve Rome’s traffic problems.
Veltroni, a novelist and modernist, says the real barbarians are those who say “no” to anything new “in the country with the most acute ‘Nimby’ (Not in My Back Yard) syndrome in the world.”
“Without local people the centre of Rome risks becoming a giant tourist mall … and local people must have somewhere to park their cars,” he wrote in Corriere della Sera Newspaper.
Source: http://www.reuters.com
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Safe Parking, a Picture to Remember
September 6, 2008
““ for accounting, control and access of cars at parking places. New development won’t take the duty off a parking attendant, however, it will make his life much more easier. Smart development identifies car’s number and opens parking gates in front of it, but only if the car has the right to leave or enter the parking area. Moreover, “Tral Parking”, how the system in called, never takes doubtful decisions and never hesitates to contact the operator, when it needs help, taking photo of every car, passing the gates of the parking place.
The core of the device is digital video-recorder “Tral”, developed ten years ago by “SMP” company. This year’s innovation in “Tral Parking”, demonstrated during MIPS-2007 ehxibition, recently held in Moscow. We shall try to describe the system in simple terms, avoiding technical details. “Tral Parking” consists of several parts: first, it has “eyes” – two videocameras, first one watching carsm entering the parking place, and the second – keeping a eye on cars, leaving the shelter. Having a car in its field of vision, the camera transfers its image to system’s “think factory” – “Tral Parking”, a video-recorder looking like a portable but promising computer.
Now it’s time for panegyrics – the device is able to receive video-signals from several cameras simultaneously and analyses signals my means of original software. First, it scans the image and finds car number – white rectangle of given size with figures. Then, the device identifies car nuber and compares it with its database – if the number exists in “Tral”’s database, the gates open, and the car gets the access to the parking place, actuating car pass sensor and a photocamera, saving car image to video-recorder’s memory.
Scrupulous developers have foreseen the situation, when computer fail to identify car number, for instance, in case, when the number is covered with dirt or snow. Then computer refers to “next higher authority” – to a parking guard. A guard sees the car on his monitor, where TRAL’s cameras transfer car image, and can permit it to enter the parking place manually. Nevertheless, in this case car’s image is also saved in the database. Video-recorder and guard’s personal computer can communicate online via either local network, or Wi-Fi adapter – this is a boast of system developers. “Tral” recorders are able to register signals of 4 cameras simultaneously, offering multifold possibilities for users.
System’s archive – database and car images – is stored on a flash drive. The video-recoder is small and can be installed directly into parking gates, because it works in wide temperature range (from –20 to +55 degrees Centigrade). System’s database and archive can be reached remotely, via nerwork. “Tral” records car images with exact time of leavingentering the parking place, thus leaving no opportunities for passing near sleepless electronic guarg unnoticed. Soon parking guards will have a new assistant – smart, alert and honest “Tral Parking”.
Source: http://www.russia-ic.com
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