MEMORANDUM FOR RESPONDENT - CISG Database

ARGUMENTS
I. THIS TRIBUNAL HAS NO JURISDICTION TO RULE ON THE MERITS OF
THE DISPUTE.
1. Although the Respondent had participated in the constitution of this Tribunal, it is not
precluded from challenging the latter’s jurisdiction [A]. This Tribunal was instituted under
the CICA Rules and thus has no jurisdiction because the parties only had a common intention
to submit to ad hoc arbitration [B]. Only a new ad hoc tribunal not constituted with the
participation of the CICA would have jurisdiction to hear the parties’ dispute [C].
A. THE RESPONDENT IS NOT BARRED FROM CHALLENGING THIS TRIBUNAL’S
JURISDICTION.
2. Despite participating in the constitution of this Tribunal, the Respondent has
consistently challenged its jurisdiction [Letter from Fasttrack conveying Answer; Answer,
para. 14-17, 24; Procedural Order No. 1, para. 4]. The seat of the arbitration, Danubia, has
enacted the UNCITRAL Model Law (“Model Law”), which is the applicable procedural law
[Statement of Claim, para. 21]. Article 16(2) of the Model Law states that a party is not
precluded from raising a plea that the Tribunal does not have jurisdiction by the fact that he
has participated in the appointment of an arbitrator [Holtzmann/Neuhaus, p. 480].
B. THE ARBITRATION AGREEMENT CAN ONLY PROVIDE FOR AD HOC ARBITRATION
BECAUSE THERE IS NO COMMON INTENTION TO ARBITRATE INSTITUTIONALLY.
3. The parties’ common intention to arbitrate under the specified circumstances is a
fundamental condition for the enforcement of an arbitration agreement [1]. The arbitration
agreement evinces no common intention for institutional arbitration under the auspices of the
CICA [2]. Further, the arbitration agreement can only be interpreted to show a common
intention to submit to ad hoc arbitration [3]. Consequently, this Tribunal should decline to
enforce the arbitration agreement and hold that it has no jurisdiction to resolve this dispute.
1. The essence of an arbitration agreement is the parties’ common
intention to arbitrate under specified conditions.
4. The contract between the parties is the fundamental constituent of international
arbitration [Gaillard/Savage, para. 46]. As a contract, the arbitrators’ power to resolve a
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