CHINA Law and Practice Contributed by: Linda Liang, Piao Liu, Chutian Wang and Xiangbo Lv, King & Wood Mallesons
technical conditions and other factors. However, there are also circumstances where online court trials shall not apply, including where: • all parties expressly disagree, or any of the parties disagrees with a good reason; • none of the parties has the technical conditions and capability to participate in an online court trial; • it is necessary to ascertain identities, verify origi - nals or check physical objects onsite through the court trial; • the case is difficult and complicated and there is a wide variety of evidence, such that the application of an online court trial is not conducive to finding out the facts and applying laws; • the case involves national security or state secrets; • the case has a great social impact and has attract - ed wide public attention; or • the court considers that there is any other circum - stance that is not suitable for an online court trial. Besides this, arbitration committees and people’s courts in some regions are also trying to provide an asynchronous hearing approach, which refers to hear - ings where the parties may choose to log on to the online arbitration/court platform at their own discre - tion within the time period specified by the arbitral committee/court to complete the hearing procedures (defence, investigation, adduction of evidence, cross- examination, etc). Under this approach, the parties may log on to the platform at different times to com - plete the relevant hearing procedures. In China, most employment-related disputes are resolved under a two-stage framework – ie, labour arbitration followed by litigation. According to the PRC Employment Dispute Mediation and Arbitration Law, before filing an employment dispute with a court, it is mandatory to submit the dispute to the competent local labour arbitration commission, an institution spe - cialising in hearing employment dispute cases. Any party that is unsatisfied with the arbitration award is entitled to bring the lawsuit to the competent people’s courts (the first instance court and then the second 9. Dispute Resolution 9.1 Litigation
instance court), except in certain situations where the arbitration award is final. According to the PRC Employment Dispute Mediation and Arbitration Law, where a labour dispute involves more than ten employees and the employees have the same claim, they may recommend their repre - sentatives to participate in the mediation, arbitration or litigation. 9.2 Alternative Dispute Resolution In addition to arbitration and litigation, an employer and employee are encouraged to consult with each other and to reach a mediation agreement on employment dispute settlement under PRC employment laws. Even if the employment disputes have been submitted to arbi - tration or litigation, an employer and employee could still negotiate and reach a mediation agreement, as long as the final arbitral award or court decision has not been made. The conciliation is not mandatory and must be based on both parties’ voluntary decision. The parties may choose to submit their employment disputes direct - ly to arbitration without any pre-claim conciliation. Labour supervision is also an available option. Accord - ing to the Regulation on Labour Security Supervision, any organisation or individual shall have the right to report any act violating labour laws, regulations or rules to the labour supervisory authority (an adminis - trative department responsible for the supervision of labour security administration). The labour supervisory authority will accept the reports and complaints, and will investigate, correct and impose punishment for any relevant acts. 9.3 Costs Under PRC law, the arbitration commission/court will not generally award the prevailing party attorney’s fees or other costs. However, there may be special rules – eg, according to a local rule in Shenzhen, where the employee is the prevailing party in a labour dispute arbitration or litigation case, the attorney’s fee paid by the employee may be borne by the employer. The maximum amount shall not exceed CNY5,000; the portion exceeding CNY5,000 shall be borne by the employee.
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