论国际商事智慧仲裁非本地化道路探索

On the Exploration of Non-Localization Paths in International Commercial Smart Arbitration

摘要: 国际商事智慧仲裁的萌芽与发展得益于互联网技术的革新，伴随着新型仲裁模式而来的是诸多法律问题，其中包括当事人事前未选择仲裁地，且争议发生后也无法及时达成对仲裁地选择的新合意。对此，非本地化仲裁理论虽认为仲裁庭只需按照当事人商定的规则进行仲裁，而无需受制于仲裁地的法律规范，但该理论的适用会面临巨大挑战，比如：现阶段还未出现纯粹的非本地化理论的应用案例、仲裁裁决的质量及仲裁的实用性是否会受到影响等。相反，淡化的中间立场或许更适合此情境下的国际商事智慧仲裁，既合理地尊重了当事人的意思自治，又将案件与仲裁地的法律规范连接起来，保障了裁决的法律效力。

Abstract: The germination and development of international commercial smart arbitration benefited from the innovation of Internet technology. Along with the new arbitration model came many legal issues, including the fact that the parties did not choose the place of arbitration in advance, and they were unable to reach a timely agreement on the place of arbitration after the dispute occurred. In this regard, although the theory of non-localized arbitration holds that the arbitral tribunal only needs to conduct arbitration in accordance with the rules agreed upon by the parties and does not need to be subject to the legal norms of the place of arbitration, the application of this theory will face huge challenges. For example: at this stage, there are no pure application cases of non-localization theory, whether the quality of arbitration awards and the practicality of arbitration will be affected, etc. On the contrary, a downplayed middle position may be more suitable for international commercial smart arbitration in this situation. It not only reasonably respects the autonomy of the parties, but also connects the case with the legal norms of the arbitration place, ensuring the legal effect of the award.