Malaysia-China Business Mediation Centre
RULES OF THE MCBMC
For the purposes of these Rules:
“The Centre” is the Malaysia-China Business Mediation Centre (“MCBMC”), a cross border dispute resolution body jointly established by the Malaysian Bar Council, the Mediation Centre of China Council for the Promotion of International Trade (“CCPIT”) and the China Chamber of International Commerce (“CCOIC”) pursuant to a Memorandum of Understanding and a Cooperation Agreement entered into between the parties on the 19th of September 2017 under the Belt and Road Initiative (“BRI”)
The “MCBMC Secretariats” are the support structures, based in Kuala Lumpur, Malaysia and in Beijing, the People’s Republic of China, which provide for the joint management of the dispute resolution proceedings conducted by MCBMC.
MCBMC Dispute Resolution Process shall be flexible and may be by mediation and/or arbitration as shall be determined by the Dispute Resolution Facilitator and in accordance with these Rules.
“Dispute Resolution Facilitator” shall be a person or persons appointed in accordance with these Rules to assist the Disputants resolve their dispute.
“Disputant(s)” means a party or parties to any dispute that may be referred to the Centre for resolution.
“Requesting Disputant” shall be the party that applies to the Centre for resolution of its dispute with another party.
“Other Disputant” shall be the party to the dispute other than the Requesting Disputant.
“Facilitator” if requests by the parties, the Facilitator may conduct the mediation by evaluative method
Rule 1 Scope of Application
1.1 These Rules shall apply to all disputes which have been agreed to be submitted to the Centre for resolution and all MCBMC Dispute Proceedings shall be conducted in accordance therewith subject to any additions and amendments made thereto that shall be in force at the commencement of the Dispute Resolution Proceedings and all disputants submitting to MCBMC dispute resolution shall be deemed to have agreed in full with the same.
1.2 The Disputants may agree to exclude, vary or modify the Rules only with the consent of the Secretariat and so far as such variations and modifications do not breach applicable laws.
1.3 These Rules include the Fees Schedule of the Centre (the “Fees”) contained in Annexure 2 hereto attached, which Fees may be modified by the Centre at any time.
Rule 2 MCBMC Secretariats
The MCBMC Secretariats of the Centre shall consist of two offices; one of which shall be based in Kuala Lumpur, Malaysia and the other in Beijing in the Peoples’ Republic of China.
The MCBMC Secretariats shall receive dispute resolution requests from Malaysian and Chinese businesses and shall jointly administer dispute resolution cases. The officers of the MCBMC Secretariats shall be impartial, neutral and independent.
Rule 3 Submission of the Dispute Resolution Request
3.1 A Requesting Disputant shall complete a Dispute Resolution Request Form in the format hereto attached marked Annexure 1(A) in English and submit the same to one of the abovementioned MCBMC Secretariats together with the non-refundable Administrative fee computed in accordance with Annexure 2 attached hereto, failing which the Dispute Resolution Request shall be rejected.
3.2 A Requesting Disputant shall attach two (2) sets of a brief statement of the dispute in the English language together with any document it deems useful for a better understanding of the dispute. All such documents attached shall be translated into English and will be forwarded to the Responding Disputant save for those documents that the Requesting Disputant has marked as confidential.
3.3 Within ten (10) working days from receipt of the brief statement of the dispute, the Responding Disputant shall respond by completing the Responding Disputant Participation Form attached hereto marked as Annexure 1(B) and deliver it to the MCBMC Secretariats with the non-refundable Administrative Fees computed in accordance with Annexure 2, together with two (2) sets of the Responding Disputant’s brief statement of the dispute and its documents, marked confidential if deemed fit.
3.4 The Secretariat shall promptly forward a copy of the Dispute Resolution Participation Form, the Responding Disputant Participation Form and such of its documents that are not marked confidential to the Requesting Disputant with a request to the Requesting Disputant to contact the Responding Disputant to agree on a Dispute Resolution Facilitator and to notify the MCBMC Secretariats within ten (10) working days from the date of receipt of the documents herein.
3.5 If the Responding Disputant fails to comply with Rule 3.3 in full or notifies the MCBMC Secretariats that it declines to submit to the process, the Dispute Resolution shall be deemed terminated and the Secretariat shall promptly inform the Requesting Disputant accordingly.
Rule 4 Dispute Resolution Facilitator
4.1 Within ten (10) working days from being requested to agree on and appoint a specific Dispute Resolution Facilitator, the Disputants shall jointly select or authorize the Centre to appoint a Dispute Resolution Facilitator from the Centre’s Panel of Dispute Resolution Facilitators published on the MCBMC Secretariats’ respective websites. If the Disputants agree to select more than one Dispute Resolution Facilitator, the Disputants shall pay a supplemental fee as contained in Item 6, Annexure 2 herein and any additional administrative charges that the Centre may impose.
4.2 The Centre will provide the basic background information of any Dispute Resolution Facilitator on the Centre’s Panel of Dispute Resolution Facilitators such as qualification, training and educational history upon request.
4.3 If the Disputants fail to reach agreement on the selection of any Dispute Resolution Facilitator within the ten (10) working days period, the Secretariat will appoint Dispute Resolution Facilitator and inform the parties of the appointment.
4.4 Each Party may challenge in writing the appointment of the appointed Dispute Resolution Facilitator within five (5) working days of notification of the appointment if circumstances exist that give rise to justifiable doubts as to the impartiality or independence of the Dispute Resolution Facilitator and request the Dispute Resolution Facilitator to withdraw. After the receipt of the written request the Centre will replace the Dispute Resolution Facilitator in accordance with this Rule, which appointment cannot be challenged.
Rule 5 Commencement of the Dispute Resolution Proceedings
5.1 Within five (5) working days of the Disputants’ agreement to proceed with the Dispute Resolution Proceedings, the secretariat shall compute the Dispute Resolution Facilitator’s fees and disbursements comprising secretarial charges, travelling, accommodation, translation, communication and other costs and expenses (hereinafter collectively called the deposit), the Disputants shall pay the same in equal shares to the Centre by way of deposit. On conclusion of the Dispute Resolution Proceeding, the MCBMC Secretariats shall render a final computation of the actual Dispute Resolution Facilitator’s fee and disbursement and any shortfall shall be paid by the Disputants and any excess shall be refunded to the Disputants, also in equal shares.
5.2 If the Respondent Disputant fails to pay the deposit, the Dispute Resolution Proceedings will not commence, and shall be deemed terminated and the balance of unutilised disbursements shall be refunded.
5.3 Upon compliance by all the Disputants with Rule 5.1 the MCBMC Secretariats shall issue to the Disputants and the Dispute Resolution Facilitator a notification of the same and the commencement of the Dispute Resolution Proceedings. The MCBMC Secretariats shall thereupon communicate with the Disputants to agree on a mutually suitable venue and date for the Dispute Resolution Proceedings.
Rule 6 Dispute Resolution Proceedings
6.1 The Dispute Resolution Proceedings shall take place at the premises of the Centre in either Kuala Lumpur or Beijing or at a different venue to be agreed by the Disputants with the consent of the Dispute Resolution Facilitator and the MCBMC Secretariats shall be duly notified.
6.2 The language to be used shall be Mandarin and/or English.
6.3 The Disputants shall attend the proceeding personally or in the case of a corporation by an authorised representative. The Disputants can be assisted by counsel or consultant.
6.4 The Dispute Resolution Facilitator shall commence the proceeding as Mediator.
Rule 7 Mediation
7.1 The Mediator, the Disputants and all present at the Mediation shall sign and be bound by the Agreement to Mediate/Arbitrate (Med-Arb) as in Annexures 3 and shall be deemed to have agreed to be bound by the code in Annexures 4 hereto attached.
7.2 The Mediator shall be neutral, shall not advise or judge and does not decide the dispute but shall facilitate the parties to reach a resolution. However, if Disputants prefer the Mediator to be an evaluator then the Mediator shall proceed with the Dispute Resolution Proceedings accordingly.
7.3 The Mediator must not be in a position considered incompatible with his role as Mediator as laid down by specific rules of Law, the Malaysian Mediation Act and the Code of Ethics which form an integral part of these Rules as attached in Annexure 4 hereto.
7.4 If a Disputant requests the presence of other persons at the mediation, the Mediator has the absolute right to allow or disallow the request.
Rule 8 Termination of Mediation Proceedings
8.1 The mediation proceedings will be terminated when:
1) a settlement is reached by the Disputants; or
2) the Mediator informs the Disputants that, in his/her opinion, the mediation process will not resolve the issues in dispute; or
3) the Disputants or any of them declare they have no interest in pursuing the proceedings; or
4) the time limit for mediation provided in a prior agreement has expired and the parties have not agreed to extend that time limit; or
5) or in any other circumstance as the Mediator may deem fit.
8.2 Where the mediation is terminated by reason of a settlement being reached by the Disputants
8.2.1 an agreement briefly containing the terms of such agreement shall be drawn up, signed by the Disputants and witnessed by their lawyers or where there are no lawyers present, by the Mediator,
8.2.2 the Mediator, shall then proceed to act as an Arbitrator and shall record in writing the settlement in the form of a final and binding arbitral award in accordance with Section 33 of the Arbitration Act 2005, Malaysia, and shall sign the same, and
8.2.3 the Disputants shall be at liberty to apply to the High Court in Malaya and the High Court of the States of Sabah and Sarawak for recognition and enforcement the arbitral award.
8.2.4 If the Dispute Resolution Proceedings takes place in Beijing, then the rules and laws applicable shall be pursuant to the rules and laws of the People’s Republic of China.
8.3 The arbitral award shall be final save as in accordance with the aforesaid Arbitration Act 2005, or in accordance to the rules and laws of the People’s Republic of China.
8.4 In the event the Dispute Resolution Proceedings are terminated in the circumstances described in Rules 8.1(2) to 8.1(5) hereinbefore contained, the Dispute Resolution Facilitator shall forthwith declare the Dispute Resolution Proceedings terminated and inform the Secretariat accordingly, whereupon the Disputants will be at liberty to seek resolution of the dispute by other means and before other forums as they may deem fit.
8.5 In any of the cases provided for by Rule 8.1 the Secretariat shall inform the Disputants of the termination of proceedings.
Rule 9 Exclusion of Liability
Neither the Centre nor any Dispute Resolution Facilitator shall be liable to any Disputant for any act or omission alleged in connection with any Dispute Resolution Proceeding conducted under these Rules, other than as a result of his/her own dishonesty and wilful misconduct.
ANNEXURE 1(A) = Dispute Resolution Request Form
ANNEXURE 1(B) = Responding Disputant Participation Form
ANNEXURE 2 = Fees and Disbursements
ANNEXURE 3 = Agreement to Mediate/Arbitrate
ANNEXURE 4 = Ethical Code of Conduct for Mediators