MEMORANDUM FOR RESPONDENT - CISG Database

1. This Tribunal does not have jurisdiction as an ad hoc arbitration
tribunal.
i. This Tribunal must be constituted as an ad hoc tribunal for it to
have jurisdiction.
27. As the Claimant has conceded, if this Tribunal decides that the arbitration agreement
should be upheld as an ad hoc arbitration, a new ad hoc tribunal would need to be constituted
[Claimant’s Memo, para. 58]. This Tribunal may not claim jurisdiction as it was not
constituted as an ad hoc tribunal.
28. This Tribunal was constituted by the CICA as an institutional arbitral tribunal. This
can be seen from the Claimant’s request for arbitration pursuant to Article 36 of the CICA
Rules [Letter from Langweiler conveying claim]. There is no mention of Article 78 of the
CICA Rules, which is meant to apply to ad hoc arbitration. Further, the CICA had requested
for fees in accordance with Article 1(1) letter B of its Schedules of Arbitral Fees and
Expenses [Letter from Court of Arbitration to Office Space acknowledging receipt of claim].
That Article applies to institutional arbitration. Had the CICA constituted this Tribunal as an
ad hoc tribunal, it would have requested for fees pursuant to Article 8 of its Schedules of
Arbitral Fees and Expenses.
29. When parties decide to switch from institutional to ad hoc arbitration, a new
arbitration agreement is required [Redfern/Hunter, para. 3-66]. Where a tribunal has been
constituted for institutional arbitration, it cannot decide subsequently that it has jurisdiction
for an ad hoc arbitration. For example, in ICC Case No. 3383 of 1979, after arbitration was
instituted under the auspices of the ICC, the parties decided that they wanted ad hoc
arbitration. Although the same arbitrators were retained, the parties had to withdraw from
ICC jurisdiction and reconstitute a fresh arbitration on an ad hoc basis. This demonstrates
that once an institutional tribunal decides that the arbitration agreement only provided for ad
hoc arbitration, it has to find that it has no jurisdiction to determine the dispute.
ii. The Model Law cannot be the basis for this Tribunal’s jurisdiction.
30. Furthermore, it cannot be argued that this Tribunal may derive jurisdiction as an ad
hoc tribunal from the Model Law, just because the procedure of the appointment of the
arbitrators in the present case mirrors the default position in Article 11(3) of the Model Law.
In Star (Universal) Co Ltd. v. Private Company “Triple V” Inc. (Hong Kong), the court held:
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