What is an arbitration counterclaim, and the conditions for filing an arbitration counterclaim

Arbitration Counterclaim.

Arbitration counterclaim refers to an independent counterclaim filed by the respondent to the arbitration commission with the original claimant as the respondent in the arbitration proceedings that is factually and legally implicated in the original claim, and is intended to offset or annex the claimant's claim.

Conditions for Arbitration Counterclaim.

The respondent may make a counterclaim in the arbitral proceedings. The counterclaim should meet three conditions:

1) Based on the same contractual or legal relationship between the claimant and the applicant applying for arbitration;

2) the respondent filed against the applicant;

3) The dispute involved in the counterclaim is different from the dispute involved in the arbitration claim.

The counterclaim shall be submitted to the arbitration commission within 60 days from the date of receipt of the notice of arbitration at the latest. If the arbitral tribunal considers that there are justifiable reasons, it may appropriately extend this time limit.

In many international commercial disputes, both parties often have a part of the responsibility for the dispute, and the interests are criss-crossed, and the counterclaim is very meaningful as a tool for the respondent to protect its legitimate rights and interests.

Article 18 of the CIETAC Arbitration Rules stipulates that: "If the respondent has a counterclaim, it shall submit it in writing to the CIETAC within 60 days from the date of receipt of the notice of arbitration." If the arbitral tribunal considers that there are justifiable reasons, it may appropriately extend this time limit.

When the respondent makes a counterclaim, it shall state in its written counterclaim the specific counterclaim and the facts and reasons on which it is based, and attach relevant supporting documents. If the respondent makes a counterclaim, it shall pay the arbitration fee in advance in accordance with the provisions of the Schedule of Arbitration Fees of the Arbitration Commission. "After receiving the respondent's counterclaim, the arbitration commission shall conduct a procedural review of the counterclaim, including:

whether the respondent in the counterclaim is the claimant in the Claim for Arbitration, and whether the counterclaimant in the counterclaim is the respondent in the Claim; whether the counterclaim and the request are based on the same facts or the same legal relationship; Whether the time for filing the counterclaim is within the time limit specified in the arbitration rules. After review, if the arbitration commission finds that the counterclaim meets the conditions, it will accept the counterclaim, otherwise it will not be accepted. The grounds for inadmissibility of the counterclaim are generally as follows:

1) Failure to file a counterclaim within the time limit specified in the arbitration rules;

2) the counterclaim made is based on another contractual relationship;

3) The names of the parties in the counterclaim are different from the names of the claimant and the respondent in the Statement of Arbitration.

Article 5, paragraph 5, of the ICC Rules of Arbitration provides: "The respondent shall submit a counterclaim together with the statement of defence and indicate: the nature and circumstances of the dispute on the basis of which the counterclaim is to be made; and, if possible, the amount of relief requested. ”

In practice, after the counterclaim is accepted, the arbitral tribunal will often combine the claim filed by the claimant with the counterclaim filed by the respondent in order to save time, cost and facilitate the hearing, since the counterclaim itself and the claim are based on the same legal relationship and the parties are also the same.

The counterclaim filed by the respondent against the claimant in arbitration shall also meet the following conditions: 1. The counterclaim shall be filed by the respondent with the original claimant as the respondent, otherwise, the counterclaim cannot be formed. 2. The counterclaim can only be submitted by the arbitration commission where the respondent accepted the original arbitration application, and cannot be submitted to other arbitration commissions, so that the purpose of counteracting the arbitration claim for vertical annexation can be achieved through the combined hearing of the arbitration claim and the counterclaim.

The counterclaim shall be filed after the original arbitration application is accepted by the arbitration commission and before the arbitral award is rendered, otherwise the purpose of joining the arbitration claim with the arbitration claim cannot be achieved.

Legal analysis: The conditions for an arbitration counterclaim are: 1. The counterclaim shall be filed by the respondent with the original arbitration claimant as the respondent; 2. The counterclaim can only be submitted by the arbitration commission that accepted the original arbitration application by the respondent, and shall not be submitted to other arbitration commissions, so that the purpose of offsetting the arbitration claim for annexation can be achieved through the combined hearing of the arbitration claim and the counterclaim.

Legal basis: "Arbitration Rules of the People's Republic of China for Disputes over Rural Land Contracting" Article 32 Where the respondent raises a counterclaim against the claimant's arbitration claim, it shall explain the matters of the counterclaim and the facts and reasons on which it is based, and attach relevant supporting materials. If the respondent submits a counterclaim before the constitution of the arbitral tribunal, the arbitration commission shall decide whether to accept it; If a counterclaim is filed after the arbitral tribunal has been constituted, the arbitral tribunal shall decide whether to accept it.

If the arbitration commission or the arbitral tribunal decides to accept the counterclaim, it shall serve a copy of the counterclaim application to the applicant within five working days from the date of receipt of the counterclaim. The claimant shall submit a statement of defence to the counterclaim within 10 working days after receiving a copy of the counterclaim, and failure to reply shall not affect the conduct of the arbitration proceedings. The arbitral tribunal shall consolidate the counterclaim of the respondent with the claim of the claimant.

If the Rural Wuyaocha Land Contract Arbitration Commission or the Arbitral Tribunal decides not to accept the counterclaim, it shall notify the respondent in writing and explain the reasons.

The counterclaim in economic arbitration shall be submitted to the arbitration commission within 60 days from the date of receipt of the notice of arbitration, and the conditions for filing a counterclaim in economic arbitration are:

1) Based on the same contractual or legal relationship between the claimant and the applicant applying for arbitration;

2) the respondent filed a request for verification against the applicant;

3) The dispute involved in the counterclaim is different from the dispute involved in the arbitration claim.

1. What are the conditions for applying for arbitration of economic disputes?

a) there is an arbitration agreement;

2) There is a specific claim for arbitration, as well as facts and reasons;

3) It is within the scope of acceptance by the Arbitration Commission.

2. What are the differences between arbitration and litigation?

1. The premise is different.

The premise of arbitration is that the parties have reached an arbitration agreement indicating that they are willing to submit the dispute to an arbitration authority. However, civil litigation does not need to be amended through negotiation between the two parties, as long as one party's lawsuit meets the statutory conditions, the court will accept it.

2. The right to choose is different.

It is the parties who have the right to choose the arbitrators. The people's court decides on the adjudicators of civil litigation.

3. The arbitration shall be final in the first instance.

The parties shall not apply for arbitration again on the same facts, nor shall they file another hail lawsuit or appeal to the people's court. Civil litigation can go through two stages: first instance and second instance.

4. Different jurisdictions.

Arbitration is jurisdiction by agreement, while court proceedings are compulsory jurisdiction. Arbitration is based on the principle of the willingness of both parties, and the arbitration institution can only accept the arbitration in accordance with the law if there is an arbitration agreement reached by both parties before or after the fact, and in this case, the court has no jurisdiction to accept the case; However, court litigation does not need to obtain the consent of the other party or the two parties reach a litigation agreement, as long as one party files a lawsuit with a court of jurisdiction, the court can accept the disputed case in accordance with the law. Arbitration does not have territorial jurisdiction and hierarchical jurisdiction, while court litigation implements territorial jurisdiction and hierarchical jurisdiction.

The parties have the right to choose any legally established arbitration institution to conduct arbitration, and there is no affiliation between different arbitration institutions; However, litigation can only be filed with a court of competent jurisdiction in accordance with the law, and the parties have no right to choose a court.

5. The composition of the arbitral tribunal and the trial tribunal of the court is different.

In arbitration, the parties may agree on the composition of the arbitral tribunal and independently select or entrust the appointment of arbitrators, while the parties to court litigation cannot choose the composition of the tribunal and the adjudicators.

6. The trial is different.

Except in special circumstances, litigation is heard in public, while arbitration focuses on protecting the trade secrets of the parties and is generally heard in private.