MEMORANDUM FOR RESPONDENT - CISG Database

The only part of the CICA Rules that are specifically for international arbitrations are in
Chapter VIII, Articles 72 to 77, which do not give a complete set of rules but only certain
modifications of the otherwise applicable rules. In fact, the CICA Rules are mostly used for
domestic arbitrations, as almost 80 percent of the cases before the CICA are domestic
[Procedural Order No. 2, Clarification 11].
3. The arbitration agreement can only be interpreted to show a common
intention to submit to ad hoc arbitration.
i. The ambiguity in the arbitration agreement may only be salvaged to
refer to ad hoc arbitration.
14. In cases containing ambiguous arbitration clauses which make no reference to any
arbitral institutions, courts have tried to remedy the clauses by referring the parties to ad hoc
arbitrations.
15. For example, in Libyan National Oil Company v. WETCO (Switzerland), the
arbitration clause provided that “disputes shall be settled by arbitration in Geneva”. Although
no arbitral institution was named, the court decided to refer the parties to ad hoc arbitration,
using local rules. In Della Sanara Kustvaart-Bevrachting v. Fallimento Cap. Giovanni
(Italy), the arbitration clause, which states “General average/arbitration, if any, in London in
the usual manner”, was held to refer to ad hoc arbitration. In Guangdong Agriculture
Company Ltd. v. Conagra International (Hong Kong), the court held that although the
reference to the “rules of Hong Kong” could be to one of several sets of arbitration rules, the
intention to arbitrate was clear and the Model Law could resolve imprecision in the number
of arbitrators. Therefore, should this Tribunal decide that the agreement to arbitrate should
be upheld despite there being no reference to any arbitral institution, the arbitration
agreement can only be enforced as an ad hoc arbitration.
16. This position is bolstered by the fact that it would be patently unclear which set of
procedural rules should apply, if this Tribunal finds in favour of institutional arbitration.
Article 72(2) of the CICA Rules provides that the parties are free to decide to use other rules,
including the UNCITRAL Arbitration Rules. However, Article 5 of the CICA Rules deems
the parties to have agreed to use the CICA Rules, unless the parties have agreed otherwise in
writing prior to the organisation of the arbitration. This Tribunal is thus bound to apply the
CICA Rules if it holds that it has jurisdiction as an institutional arbitral tribunal. However, to
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