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Control Expropriation Via Rights Offers 通过提供权利控制征用
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-08-02 DOI: 10.1111/ablj.12232
Leeor Ofer

Rights offers are a relatively common capital-raising method. In a rights offer, the company's existing shareholders are given the opportunity to purchase newly-issued shares in proportion to the amount of shares they already own for a specific subscription price per share. Because all shareholders can participate in the issuance under the same terms, rights offers are often regarded as fair to all shareholders. However, this article demonstrates that rights offers do not always place shareholders on equal footing. In particular, this article shows that dominant, non-controlling shareholders (“insiders”) can utilize a rights offer to expropriate control. By setting a deliberately high subscription price, insiders can deter other shareholders from buying into the offer. Insiders can then purchase a disproportionate amount of shares via the rights offer, thereby securing absolute control. Once in control, insiders will be in a position to extract value from the firm, and will be immune to future control challenges. These expected benefits of control make the high subscription price worth paying from insiders' perspective, so that the rights offer is effectively underpriced for insiders but overpriced for other shareholders. When a rights offer acts as a change-of-control tool, it should be governed by Delaware takeover law. Courts should closely scrutinize such issuances, and require boards to maximize the premium insiders pay for control. This article further suggests that stock exchanges adopt a mandatory price-adjusting mechanism for rights offers, which will guarantee that the subscription price is lower than or equal to the underlying share's trading price.

配股是一种相对常见的融资方式。在配股中,公司的现有股东有机会以特定的每股认购价格,按照他们已经拥有的股票数量的比例购买新发行的股票。由于所有股东都可以在相同的条款下参与发行,因此配股通常被认为对所有股东都是公平的。然而,本文表明,配股并不总是将股东置于平等地位。特别是,本文表明,占主导地位的非控股股东(“内部人”)可以利用配股来征收控制权。通过故意设定较高的认购价格,内部人士可以阻止其他股东买入。然后,内部人士可以通过配股购买不成比例的股份,从而获得绝对控制权。一旦掌握了控制权,内部人士就能从公司获取价值,而且不会受到未来控制权挑战的影响。这些预期的控制权利益使得高认购价格从内部人士的角度来看是值得支付的,因此配股对内部人士来说实际上是定价过低,而对其他股东来说则是定价过高。当配股作为控制权变更工具时,应受特拉华州收购法的管辖。法院应密切审查此类发行,并要求董事会最大限度地提高内部人士为获得控制权而支付的溢价。本文进一步建议证券交易所采用强制性配股价格调整机制,以保证认购价格低于或等于标的股票的交易价格。
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引用次数: 0
Brute Force (Anti) Federalism 残酷力量(反)联邦制
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-08-02 DOI: 10.1111/ablj.12231
Kathryn Kisska-Schulze, John T. Holden, Corey Ciocchetti

States are engaging in brute force (anti) federalism, where both sides of the political spectrum push agendas that extend beyond the Founder's early ideal of balanced federalism, using popular support and special interest groups' interests as their springboard. These trial-and-error tactics increase vertical and interstate horizontal frictions, create political and economic challenges for businesses, and increase American polarization. However, they also allow states the opportunity to force an increasingly stalemated federal government into action. This article introduces the concept of brute force (anti) federalism by first examining the evolution of modern federalism. It then offers a sampling of state brute force efforts, analyzes the effect of popular momentum and special interest groups on state political activity, advances broad-based perspectives surrounding brute force (anti) federalism, and poses additional questions to be considered.

各州正在进行蛮力(反)联邦制,政治光谱的双方都在推动超出创始人早期平衡联邦制理想的议程,利用民众支持和特殊利益集团的利益作为跳板。这些反复试验的策略增加了垂直和州际之间的摩擦,给企业带来了政治和经济挑战,并加剧了美国的两极分化。然而,它们也让各州有机会迫使日益陷入僵局的联邦政府采取行动。本文通过考察现代联邦制的演变,介绍了蛮力(反)联邦制的概念。然后,它提供了一个国家蛮力努力的样本,分析了民众势头和特殊利益集团对国家政治活动的影响,提出了围绕蛮力(反)联邦制的广泛视角,并提出了需要考虑的其他问题。
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引用次数: 0
When Federal Law Goes Unnoticed: Assessing the CISG's Applicability Across U.S. Courts Based on an Empirical Research of Decisions from 1988 to 2020 当联邦法律被忽视时:基于1988年至2020年判决的实证研究评估《销售公约》在美国法院的适用性
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-08-02 DOI: 10.1111/ablj.12230
Carolina Arlota, Brian McCall

The United Nations Convention on Contracts for the International Sale of Goods (CISG) has reached the level of acceptance that it can be recognized as the face of international sales law. Over a century ago, the late Roscoe Pound drew attention to the dichotomy between the law as written and the law as experienced in practice. The law of the CISG “on the books” is the law of the United States. With the growth of international trade, one might expect its importance to grow in the realm of law “in action.” This article explores the CISG in action in U.S. courts during its almost four decades of being the law on the books in the United States. To this end, the authors built an original dataset based on their Westlaw search of all decisions mentioning the CISG across all U.S. federal and state courts from 1988 (when the CISG entered into force) through 2019. The dataset provides unprecedented insights into: (1) how parties raise the issue of the applicability of the CISG, (2) how courts have ruled on the Convention's applicability, and (3) the provisions of the Convention that appear most frequently in these disputes. This article empirically assesses, through logistic regressions, which factors are statistically significant for predicting if a court will apply (or decline to apply) the Convention to a disputed transaction. Finally, the article highlights many ways in which the law in action may not be as robust or comprehensive as it appears on the books.

《联合国国际货物销售合同公约》(《销售公约》)已达到被接受的程度,可以被认为是国际销售法的代表。一个多世纪以前,已故的罗斯科·庞德(Roscoe Pound)提请人们注意书面法律和实践中实践的法律之间的二分法。《销售公约》“在册”的法律是美国的法律。随着国际贸易的增长,人们可能会期望它在“行动中”法律领域的重要性增加。本文探讨了《销售公约》作为美国法律近四十年来在美国法院的实践。为此,作者基于对从1988年(CISG生效之日)到2019年所有美国联邦和州法院提到CISG的所有判决的Westlaw搜索,建立了一个原始数据集。该数据集为以下方面提供了前所未有的见解:(1)当事方如何提出《销售公约》的适用性问题,(2)法院如何对《销售公约》的适用性作出裁决,以及(3)《销售公约》在这些争端中最常出现的条款。本文通过逻辑回归实证地评估了哪些因素对于预测法院是否将适用(或拒绝适用)《公约》于有争议的交易具有统计意义。最后,文章强调了在许多方面,法律在行动中可能不像它在书中出现的那样健全或全面。
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引用次数: 0
Arbitration Effect 仲裁效力
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-06-06 DOI: 10.1111/ablj.12222
Farshad Ghodoosi, Monica M. Sharif

Arbitration is changing the United States justice system. Critics argue that arbitration leads to claim suppression. Proponents argue that, compared with courts, arbitration is cheaper and less formal. These claims have not been empirically tested. In particular, whether and how arbitration impacts individuals’ decision to sue remains an open inquiry. This article for the first time shows, in a series of experiments, the impact of arbitration agreements on individuals' decisions to sue. This article calls it the “arbitration effect.” First, we test whether the arbitration effect exists; that is, if arbitration agreements negatively impact individuals' decision to sue. Second, we experimentally test individuals' decisions to opt out of arbitration agreements. Lastly, we assess whether any type of information can “cure” the arbitration effect. The results establish that individuals are less likely to sue in arbitration as opposed to court, hence the arbitration effect. Such an effect, however, does not exist at the contracting stage, meaning that individuals do not shun arbitration when given the option. Further, none of the fundamental attributes of arbitration, as touted by the U.S. Supreme Court, nor win-rates and class actions mitigate the arbitration effect. Equally, informational nudges do not reduce the effect, and individuals do not ascribe negative attributes to firms forcing mandatory arbitration. For decades, courts and lawmakers grappled with issues related to arbitration. The article provides much-needed data on arbitration. Findings cast serious doubts on the ongoing efforts—market-based, judicial, or regulatory—aiming to change the arbitration course.

仲裁正在改变美国的司法系统。批评者认为,仲裁会导致索赔被压制。支持者认为,与法院相比,仲裁更便宜,也不那么正式。这些说法尚未经过实证检验。特别是,仲裁是否以及如何影响个人的起诉决定仍然是一个悬而未决的问题。本文首次在一系列实验中展示了仲裁协议对个人起诉决定的影响。本文称之为“仲裁效力”。首先,我们检验仲裁效力是否存在;也就是说,如果仲裁协议对个人的起诉决定产生负面影响。其次,我们通过实验测试了个人选择退出仲裁协议的决定。最后,我们评估任何类型的信息是否可以“治愈”仲裁效果。结果表明,与法院相比,个人在仲裁中起诉的可能性较小,因此产生了仲裁效应。然而,这种影响在签约阶段并不存在,这意味着个人在有选择的情况下不会回避仲裁。此外,美国最高法院所吹捧的仲裁的基本属性,以及胜诉率和集体诉讼,都没有减轻仲裁的影响。同样,信息推动并没有减少这种影响,个人也不会将负面属性归因于强制仲裁的公司。几十年来,法院和立法者一直在努力解决与仲裁有关的问题。这篇文章提供了急需的仲裁数据。调查结果使人们对正在进行的旨在改变仲裁进程的努力——基于市场、司法或监管——产生了严重怀疑。
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引用次数: 0
Stepping Up to the Plate: Minor Leaguers Attempt to Remedy their Unconscionable Plight 迈向本垒板:小联盟球员试图弥补他们不合理的困境
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-06-06 DOI: 10.1111/ablj.12223
Lucas W. Loafman, John T. Holden

Professional baseball players are often thought of as making multi-million-dollar salaries, but most professional baseball players have recently made under $15,000 a year. Minor league players toiled under an onerous system resulting from baseball's judicially created antitrust exemption and lobbying efforts that exempted them from minimum wage and overtime. These factors allowed teams to impose a uniform player contract (UPC) on players with numerous unconscionable provisions for years. However, a late-night Tweet in August of 2022 sent shockwaves through the sports and labor world, announcing that the Major League Baseball Players Association (MLBPA) was sending out authorization cards to represent minor league players. After years of fighting to maintain the authority to impose conditions on minor league players, through lobbying and litigation, Major League Baseball (MLB) turned over a new leaf and recognized the unionization of minor league players under the MLBPA less than three weeks later. In light of this long sought-after recognition, this article takes a novel approach. First, it provides historical context for baseball's unique ability to impose working conditions on minor leaguers without significant concern for legal ramifications. Second, it provides an overview of the doctrine of contractual unconscionability and analyzes the prior UPC as an unconscionable agreement. Finally, it details the historic unionization process and makes detailed recommendations to ameliorate the unconscionable conditions minor league players have faced when they negotiate with MLB owners to draft their initial collective bargaining agreement.

职业棒球运动员通常被认为年薪数百万美元,但大多数职业棒球运动员最近的年薪不到1.5万美元。小联盟的球员在一个繁重的制度下辛苦劳作,这是由棒球司法创造的反垄断豁免和游说努力造成的,这些努力使他们免于最低工资和加班费。这些因素使得球队多年来在球员身上强加了一份统一球员合同(UPC),其中有许多不合情理的条款。但是,在2022年8月的深夜,美国职业棒球大联盟(MLBPA)在推特上宣布,美国职业棒球大联盟(MLBPA)将向小联盟球员发放授权卡,这一消息在体育界和劳动界引起了轩然大波。通过游说和诉讼,美国职业棒球大联盟(MLB)多年来一直在努力维持对小联盟球员施加条件的权力,不到三周后,美国职业棒球大联盟(MLB)就翻开了新的一页,在MLBPA下承认了小联盟球员的工会组织。鉴于这一长期追求的认可,本文采用了一种新颖的方法。首先,它为棒球的独特能力提供了历史背景,即在没有重大法律后果的情况下对小联盟球员施加工作条件。其次,概述了合同不合理原则,并分析了在先UPC作为不合理协议的情况。最后,它详细介绍了历史性的工会化过程,并提出了详细的建议,以改善小联盟球员在与MLB老板谈判起草最初的集体谈判协议时所面临的不合理条件。
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引用次数: 0
“In One Direction Only”: Chains of Reasoning and Tail Events in CAFA Amount-in-Controversy Claims “只在一个方向上”:CAFA金额争议索赔中的推理链和尾部事件
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-06-06 DOI: 10.1111/ablj.12224
Jeff Lingwall, Nicole Wood

While the Class Action Fairness Act (CAFA) establishes a bright-line jurisdictional amount in controversy for removing cases from state to federal court, calculating that quantitative threshold in practice is a fraught and heavily litigated exercise. This article examines removals under CAFA to show the substantial lack of clarity in how state-law causes of action and damage claims interact to reach the jurisdictional threshold. It compiles cases illustrating the challenges surrounding removal litigation that flow from these uncertainties, particularly in how the structure of CAFA incentivizes defendants to chain together tail-event precedent to inflate theoretical amounts in controversy. It then applies a Coasean analysis to suggest these uncertainties impede efficient resolutions to litigation. Finally, it suggests a series of practical amendments to CAFA and its interpretive case law that would provide clarity, decrease forum-selection litigation, and enhance the efficacy of class litigation.

虽然《集体诉讼公平法》(CAFA)为将案件从州法院转移到联邦法院确立了一个明确的管辖权界限,但在实践中计算这个数量门槛是一项令人担忧的、充满诉讼的工作。本文考察了CAFA下的移除,以表明在州法的诉因和损害索赔如何相互作用以达到管辖权阈值方面缺乏明确性。它汇编了一些案例,说明了围绕这些不确定性而产生的移除诉讼所面临的挑战,特别是中央法院的结构如何激励被告将尾事件先例联系在一起,以夸大争议中的理论金额。然后应用科斯分析表明,这些不确定性阻碍了诉讼的有效解决。最后,本文提出了对中央行政诉讼法及其解释性判例法的一系列切实可行的修改建议,这些建议将使集体诉讼更加明确,减少选择法庭的诉讼,并提高集体诉讼的效力。
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引用次数: 0
Resolution of Small and Medium-Sized Deposit-Taking Institutions: Back to Basics? 中小存款机构的解决方案:回归基础?
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-06-06 DOI: 10.1111/ablj.12225
Maziar Peihani

Following the 2008 Great Financial Crisis, financial policy makers have refocused their attention on bank resolution, prompting the creation of new resolution tools and regime reforms. As a result, the focus has mainly been on large, systemically important banks. Less attention has been paid to a broader range of financial institutions, namely small and medium deposit-taking institutions. That tendency limits the applicability of these tools, which are imperfectly adapted to the unique issues faced by these smaller institutions. This article will assess both the successful applications and the limitations of resolution tools to small and medium deposit-taking institution failures, focusing on three tools in particular: the bail-in, the bridge bank, and purchase and assumption. In doing so, the benefits and challenges of each of these tools will be examined through the lens of recent resolution examples in the United States, Canada, and the European Union. This article also argues for the availability of public funds to achieve a successful resolution, taking the view that moral hazard concerns are overstated and that rigid bans of public funds are counterproductive to the goals of resolution. Lastly, this article seeks to develop a broad understanding of the systemic importance that accounts for the essential role of small and medium deposit-taking institutions in their communities.

2008年金融大危机之后,金融政策制定者将注意力重新集中在银行清算上,推动了新的清算工具的创建和制度改革。因此,焦点主要集中在具有系统重要性的大型银行。对更广泛的金融机构,即中小型存款机构的关注较少。这种趋势限制了这些工具的适用性,这些工具不能完全适应这些较小机构所面临的独特问题。本文将评估解决工具在中小型存款机构破产中的成功应用和局限性,特别关注三种工具:自救、过渡银行和购买和假设。在此过程中,将通过美国、加拿大和欧盟最近的解决方案示例来检查每种工具的优点和挑战。本文还主张公共资金的可用性,以实现一个成功的解决方案,认为道德风险的担忧被夸大了,并且严格禁止公共资金对解决目标起反作用。最后,本文试图发展对系统重要性的广泛理解,这种重要性说明了中小型存款机构在其社区中的重要作用。
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引用次数: 0
In-Group Favoritism as Legal Strategy: Evidence from FCPA Settlements 群体偏袒作为法律策略:来自反海外腐败法和解的证据
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-03-30 DOI: 10.1111/ablj.12218
Brian D. Feinstein, William R. Heaston, Guilherme Siqueira de Carvalho

Anti-corruption laws aim to bolster public integrity by punishing attempts to illegitimately curry favor with government decision-makers. These laws, however, can generate integrity risks of their own. This article examines one such risk: that firms subject to scrutiny under the Foreign Corrupt Practices Act (FCPA) may attempt to influence prosecutors by exploiting shared political leanings or related socio-cultural ties. Drawing on social psychology, we theorize that FCPA defendants retain defense attorneys who are aligned with government officials. This behavior is consistent with a strategy of marshaling in-group favoritism—i.e., the psychological tendency for individuals to view more favorably those that they perceive as members of the same group—to defendants' advantage. This strategy may be particularly auspicious in FCPA matters, in which prosecutors engage in subjective, trust-based assessments of defendants' self-investigatory efforts, typically with minimal judicial oversight. We test this theory by matching attorneys listed on court filings for all FCPA matters over eighteen years with a database of individuals' political views based on their patterns of political donations. This analysis reveals that defendants tend to hire more liberal attorneys to represent them on these filings when prosecutors lean left and during Democratic administrations, and more conservative attorneys when prosecutors lean right and during Republican presidencies. In light of these findings, we offer policy prescriptions aimed at increasing transparency and judicial oversight of FCPA matters to mitigate integrity risks.

反腐败法旨在通过惩罚非法巴结政府决策者的行为来加强公共诚信。然而,这些法律本身也会产生诚信风险。本文考察了这样一种风险:根据《反海外腐败法》(FCPA)受到审查的公司可能试图利用共同的政治倾向或相关的社会文化关系来影响检察官。根据社会心理学的理论,我们认为《反海外腐败法》的被告会聘请与政府官员结盟的辩护律师。这种行为与一种组织内部偏好的策略是一致的。这是一种心理倾向,即个人更倾向于看好那些他们认为是同一群体成员的人——这对被告有利。这种策略在反海外腐败法案件中可能特别有利,因为在这种案件中,检察官对被告的自我调查努力进行主观的、基于信任的评估,通常很少有司法监督。我们通过将18年来所有FCPA案件的法庭文件中列出的律师名单与基于个人政治捐赠模式的个人政治观点数据库相匹配,来验证这一理论。这一分析表明,当检察官倾向于左倾和民主党执政期间,被告倾向于雇佣更多的自由派律师代表他们处理这些文件,而当检察官倾向于右倾和共和党执政期间,被告倾向于雇佣更多的保守派律师。根据这些发现,我们提出了旨在提高《反海外腐败法》事务透明度和司法监督的政策建议,以减轻诚信风险。
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引用次数: 0
An Intertribal Business Court 部落间商业法庭
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-03-30 DOI: 10.1111/ablj.12219
Adam Crepelle

Few Indian reservations have any semblance of a private sector. Consequently, poverty and unemployment are major problems in much of Indian country. While there are many reasons why private enterprise is scarce in Indian country, one of the foremost reasons is businesses do not trust tribal courts. Businesses' distrust of tribal courts is not unique as outsiders often fear bias in foreign tribunals. Similarly, businesses are often concerned about a court's capacity to adjudicate complex disputes. Federal diversity jurisdiction was developed to allay fear of bias, and many states have developed business courts to address questions about court capacity. Tribes can overcome these issues by creating an intertribal business court (IBC). Tribes will be free to sculpt the IBC as they see fit. However, the IBC's intertribal nature will help reduce fears of bias, and an IBC's focus on business disputes will answer doubts about court capacity. An IBC will also make tribal law more accessible, further increasing confidence in this new tribunal. As businesses gain greater confidence in tribal legal institutions through the IBC, they will be more likely to operate in Indian country. Accordingly, the IBC could help to transform tribal economies.

很少有印第安保留区有任何私人部门的表象。因此,贫穷和失业是印度大部分地区的主要问题。虽然私营企业在印度稀缺的原因有很多,但最重要的原因之一是企业不信任部落法院。商界对部落法庭的不信任并非个例,因为外人常常担心外国法庭存在偏见。同样,企业经常担心法院裁决复杂纠纷的能力。建立联邦多元化司法管辖权是为了减轻对偏见的恐惧,许多州已经建立了商业法庭来解决有关法院能力的问题。部落可以通过建立部落间商业法庭(IBC)来解决这些问题。部落将自由地雕刻IBC,因为他们认为合适。然而,IBC的跨部落性质将有助于减少对偏见的担忧,IBC对商业纠纷的关注将回答对法院能力的质疑。IBC还将使部落法律更容易获得,进一步增加对这个新法庭的信心。随着企业通过IBC对部落法律机构获得更大的信心,它们将更有可能在印度开展业务。因此,IBC可以帮助部落经济转型。
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引用次数: 0
Litigating Corporate Human Rights Information 公司人权信息诉讼
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2023-03-30 DOI: 10.1111/ablj.12220
Rachel Chambers

This article analyzes trends in litigation brought against corporate actors regarding human rights information. Such information includes, but is not limited to, statements on packaging claiming that products are “ethically sourced” and investor-facing disclosures representing that an issuer's operations are environmentally friendly. It proceeds by outlining the sources of human rights-related disclosures as they arise under both legal and voluntary regimes. The article then addresses the case law. Recent years have seen an increase in lawsuits involving human rights information, or lack thereof, imparted by companies. Consumer protection or consumer fraud cases are being filed, alleging that companies have either provided false and misleading information or omitted information about corporate human rights impacts and mitigation efforts. Investors are filing similar claims. The article examines the trend and considers the role of this litigation both in holding companies to their word and in providing corporate accountability for the underlying human rights abuses that false or misleading human rights information may mask. It ultimately argues that, although success at trial in such cases remains elusive, litigation is a useful and potentially growing tool for holding companies to their word regarding human rights claims. It contextualizes this litigation, arguing that other means by which companies can be held to their word should be strengthened, including public enforcement and—potentially—new disclosure and due diligence laws.

本文分析了针对公司行为者的人权信息诉讼的趋势。这些信息包括,但不限于,包装上声称产品是“道德来源”的声明,以及代表发行人运营是环保的面向投资者的披露。报告首先概述了在法律和自愿制度下出现的与人权有关的披露的来源。文章接着论述了判例法。近年来,涉及公司提供或缺乏人权信息的诉讼有所增加。正在提起消费者保护或消费者欺诈案件,指控公司要么提供虚假和误导性信息,要么遗漏有关公司人权影响和缓解努力的信息。投资者也提出了类似的索赔。本文研究了这一趋势,并考虑了这一诉讼在使公司信守承诺和为虚假或误导性人权信息可能掩盖的潜在侵犯人权行为提供公司问责方面的作用。它最终认为,尽管此类案件的审判成功仍然难以捉摸,但诉讼是一种有用的、潜在的日益增长的工具,可以让公司在人权主张方面信守承诺。它将这一诉讼置于背景之下,认为应该加强其他能让公司信守承诺的手段,包括公共执法,以及可能出台的新披露和尽职调查法。
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引用次数: 0
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