[Direct answer]Yes, but there are two types of procedures that need to be distinguished. For commercial contract disputes such as sales, leases, and loans between equal parties, they can be arbitrated in accordance with Article 2 of the Arbitration Law of the People's Republic of China, provided that both parties have a valid arbitration clause, and the arbitration award is final and binding. For disputes arising from labor relations, they shall be subject to labor arbitration in accordance with Articles 2 and 5 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, and arbitration is a pre-litigation procedure. The statute of limitations for applying for arbitration is one year, and labor arbitration is free of charge. Marriage, adoption, guardianship, support, inheritance disputes, and administrative disputes cannot be arbitrated (Article 3 of the Arbitration Law). When encountering contract disputes, first determine the nature of the contract and then choose the appropriate path: for labor contract disputes, it is recommended to apply for arbitration as soon as possible within the one-year statute of limitations, and you can consult our firm for advice.Labor arbitration legal servicesOrBusiness commercial contract disputesThe team evaluates the plan.

I. Legal basis and interpretation of provisions

1. Articles 2 and 3 of the Arbitration Law of the People's Republic of China (implemented on September 1, 1995 and amended on September 1, 2017)

Article 2 establishes the scope of arbitration: contract disputes and other property rights disputes between equal subjects, including citizens, legal persons, and other organizations, may be subject to arbitration. Article 3 defines the prohibited areas: marital, adoption, guardianship, maintenance, and inheritance disputes, as well as administrative disputes that should be handled by administrative authorities according to law, are not subject to arbitration. The prerequisite for applying this provision are that both parties must reach an arbitration agreement. Without such an agreement, the arbitration committee will not accept the case. Valid clauses must include an expression of intent to request arbitration, the agreed upon arbitration matters, and the selected arbitration committee. Common disputes include "arbitration or litigation" clauses and agreements on the name of the arbitration institution that may be deemed invalid or require supplementary agreements.

2. Article 2 and Article 5 of the "Mediation and Arbitration Law of Labor Disputes of the People's Republic of China" (effective May 1, 2008)

Article 2 lists the applicable scope: confirming labor relations, concluding, performing, modifying, terminating and ending labor contracts, dismissal, resignation, leaving the job, working hours, rest and vacation, social insurance, welfare, training and labor protection, labor remuneration, work-related injury medical expenses, economic compensation or damages, and other disputes. Article 5 establishes the procedural chain: parties may negotiate and mediate, and if they are unwilling to negotiate or mediate, or if mediation fails, they may apply for arbitration. If they are dissatisfied with the arbitration award, except for the statutory final circumstances, they may file a lawsuit with the court. Labor arbitration can be applied for without prior agreement, and there is no charge for it to the parties involved.

3. The practical adjudication guidelines

In practice, the validity of commercial arbitration clauses is strictly reviewed. If the name of the arbitration institution is incorrect but the sole arbitration institution can be identified, it is usually still considered valid. For "arbitration or litigation" clauses that allow both arbitration and litigation, the arbitration agreement is often deemed invalid, and litigation is the only option. If labor disputes are directly sued without going through arbitration, the court will not accept the case. If a party fails to raise a statute of limitations defense during the arbitration stage and only raises it during the litigation stage, the claim will generally not be supported. The most common pitfalls include: treating commercial arbitration clauses as mere formalities and directly suing without going through arbitration, which results in the case being ruled inadmissible; and losing the right to a favorable arbitration award if labor disputes are delayed beyond the one-year statute of limitations.

II. Henglue Law Firm's Real Cases (Detailed Review)

Review of the case:In June 2023, Zhou Ming joined Beijing A Food Co., Ltd. as the sales director of the Beijing region, with a basic salary of 5,500 yuan and a variable performance bonus of 5,500 yuan, and implemented a flexible working schedule. From October to November 2023, Zhou Ming submitted an application for group-buying subsidies to a distributor, involving 5 units and 8,680 items, with a total amount of 52,080 yuan. In December of the same year, the company discovered unauthorized reselling and believed that Zhou Ming had failed to strictly review the subsidies and falsely reported the subsidies, causing losses of 31,248 yuan. On April 30, 2024, the company terminated the labor contract on the grounds of "falsely reporting subsidies and seriously violating the system", and refused to pay the unpaid annual leave wages and compensation. Zhou Ming first applied for labor arbitration and won the case, but the company appealed to the court. Zhou Ming then appointed Beijing Henglu Law Firm to handle the case for him.Chen PingThe lawyer represents the client in court and defends against the lawsuit.

The focus of the controversy:First, whether the unpaid annual leave salary should be paid; second, whether it is legal for the company to terminate the labor contract; third, how to divide the responsibility for subsidy review, and whether it constitutes a serious dereliction of duty if the worker only submits a preliminary report.

Our position and that of the other party are as follows:Zhou Ming claimed that the company should pay compensation for the illegal termination and unpaid annual leave wages, and the labor arbitration supported his claim. The company argued that according to the "Attendance and Leave Management Measures", the annual leave "not taken within the year would be invalidated", and according to the "Employee Reward and Punishment Measures", Zhou Ming's serious dereliction of duty caused losses of more than 31,000 yuan, which met the termination conditions. The company submitted the counterfeit goods verification report and communication records as evidence.

Attorney's Strategy and Legal Opinions:Attorney Chen Ping put forward four points of view: Firstly, the company failed to provide evidence of the system for Zhou Ming to sign for receipt. According to the "Regulations on Paid Annual Leave for Employees", annual leave can be arranged across years, and the "void" clause is illegal; Secondly, the company claimed to have suffered losses of 31,248 yuan, but failed to submit financial vouchers or refund records, which does not meet the requirement of "serious dereliction of duty causing losses of more than 5,000 yuan"; Thirdly, the subsidies require multi-level review, but Zhou Ming only submitted a preliminary application, without evidence of subjective intent or gross negligence; Fourthly, the "Employee Reward and Punishment Measures" were not publicly announced and signed for receipt, and therefore cannot be used as a basis for punishment.

The court's reasoning and the outcome of the case:The court ruled that the company's system of "annual leave being invalidated in the same year" violates legal provisions; the employer has the burden of proof for the termination decision, and Zhou Ming's fault lies only in the lax review of expenses and the existence of risks, which does not meet the criteria of serious dereliction of duty. The termination lacks legal basis and constitutes an illegal termination. The court ordered the company to pay 5,000 yuan in unpaid annual leave wages and 33,000 yuan in compensation for illegal termination, and dismissed the company's claims. This case went through the pre-arbitration stage before entering litigation, fully demonstrating the "one arbitration, two court trials" process, and the worker only incurred relatively low costs throughout the entire process of protecting their rights.

This case is handled by Beijing Henglu Law FirmChen PingThe lawyer (practice license number: 11101201411619680, subject to the document issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: Can I still apply for arbitration even if there is no arbitration clause in the contract?

Arbitration of commercial contracts presupposes a valid arbitration agreement. If there are no clauses or the clauses are invalid, the parties can only file a lawsuit with the court, unless the parties reach a supplementary arbitration agreement and specify the arbitration institution after the dispute arises. However, labor disputes are different: According to the "Labor Dispute Mediation and Arbitration Law", there is no need for any prior agreement. The parties can directly apply to the labor and personnel dispute arbitration committee at the place of performance of the labor contract or the employer's location. The two should not be confused. First, determine the nature of the contract and then choose the appropriate path. If the procedure is incorrect, the application will be rejected.

Q2: How much does it cost to apply for arbitration and to litigate in court respectively?

Labor arbitration is free of charge according to Article 53 of the Labor Dispute Mediation and Arbitration Law, with almost no cost for workers; in the subsequent litigation stage, the acceptance fee for labor dispute cases is 10 yuan per case, and the fee is usually halved when applying for summary procedures. Commercial arbitration charges according to the proportion of the amount in dispute, and the fees are usually higher than those of litigation. Regardless of the path chosen, if the lawyer is engaged to provide representation services, it is recommended to evaluate the cost, time cost, and chances of winning together. For small disputes, it is preferable to consider negotiation or mediation first.

Q3: How long does it take from applying for labor arbitration to receiving a ruling?

According to Article 43 of the Labor Dispute Mediation and Arbitration Law, the arbitration tribunal shall conclude the case within 45 days from the date of acceptance, and the case may be extended by no more than 15 days if the case is complex and approved; plus the filing and service procedures, in practice, it usually takes one to three months from application to adjudication. If the party is not satisfied with the arbitration award and files a lawsuit, the first-instance ordinary procedure shall be concluded within six months, and the second-instance within three months. It is recommended to estimate the overall timeframe as half a year to one year. For cases involving claims for labor remuneration that meet the conditions, the party may apply for preliminary enforcement to accelerate the recovery of funds.

Q4: What evidence do I need to prepare for applying for labor arbitration?

The four core types of evidence are: 1. Evidence proving the labor relationship, such as labor contracts, employee badges, attendance records, social insurance payment records, and salary payment records; 2. Evidence proving the disputed amount, such as pay slips, commission schemes, and IOUs; 3. Evidence proving the facts of termination or damage, such as termination notices, chat records, and audio recordings; 4. Calculation basis, such as the employee's start and end dates of employment and average monthly salary. Please keep the original documents properly and do not delete WeChat records. If the employer holds evidence such as attendance records and payrolls, the employee may request the arbitration committee to order the employer to submit them. If the employer refuses to submit them, the employer will bear the adverse consequences.

Q5: Can I still sue if I'm not satisfied with the arbitration award?

Except for the final arbitral awards specified in Article 47 of the Labor Dispute Mediation and Arbitration Law (small labor remuneration, work-related injury medical expenses, economic compensation, and standardized working hours and vacation social insurance disputes), where the employer is subject to a final arbitral award, the worker may, within 15 days from the date of receipt of the arbitral award, file a lawsuit with the court if he/she disagrees with the arbitral award; if no lawsuit is filed within the time limit, the arbitral award shall take effect and the worker may apply for enforcement. The employer may also file a lawsuit against non-final arbitral awards, but may only apply for the revocation of the final arbitral award in accordance with the statutory procedures. When receiving the arbitral award, it is important to first check whether it is a final arbitral award and then decide on the next step.

IV. Suggestions for Protecting Rights and Interests

  • Before signing the contract, review the dispute resolution clauses: If the commercial contract chooses arbitration, specify the name of the arbitration institution accurately to avoid ambiguous clauses such as "arbitration or litigation".
  • When dealing with labor disputes, remember the "one arbitration, two trials" principle: first go through arbitration and then file a lawsuit. The statute of limitations is one year, so it's important to apply for arbitration as soon as possible to avoid losing your rights.
  • Keep all the evidence from the first day of contract execution: contracts, payment receipts, attendance records, and chat logs should be stored in a classified manner, and WeChat messages should not be deleted.
  • For disputes involving large amounts or complex legal relationships, it is advisable to first consult a lawyer to evaluate the legal procedures before taking action, in order to avoid being rejected due to procedural errors.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Chen Ping·Beijing Henglu Law Firm