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The Management and Oversight of Human Rights Due Diligence 人权尽职调查的管理和监督
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-12-10 DOI: 10.1111/ablj.12197
David Hess

The COVID-19 pandemic showed how vulnerable workers in global supply chains are to adverse human rights impacts. Protecting such workers must be a primary policy goal in the efforts to “build back better” from the crisis, and businesses conducting human rights due diligence (HRDD) is a primary means to do so. In Europe, there is a fast-moving trend toward legislatively mandating HRDD, and there is potential for similar movement in the United States. Whether HRDD will significantly improve human rights conditions, however, is an open question. Based on our experience with corporate compliance programs, it is clear that the management and oversight of HRDD is an essential factor in ensuring meaningful implementation, as opposed to corporations focusing on form over substance. This article identifies those key internal governance issues and provides advice on how best to ensure effective implementation. The article argues that for most corporations, the day-to-day management of HRDD best fits with the compliance function—not the legal function—and this new role could be part of the next step in the evolution of the compliance function. This article also discusses the role of the board of directors and how HRDD combined with recent developments in the law of fiduciary duties can push directors to engage in more rigorous oversight. In addition, it discusses the types of information that are essential for supporting the management and oversight of HRDD.

2019冠状病毒病疫情表明,全球供应链中的工人是多么容易受到不利的人权影响。保护这些工人必须是从危机中“重建得更好”的主要政策目标,而企业进行人权尽职调查是实现这一目标的主要手段。在欧洲,立法强制实施人权尽职调查的趋势很快,美国也有可能采取类似的行动。然而,人权与发展部是否会显著改善人权状况,这是一个悬而未决的问题。根据我们在企业合规计划方面的经验,很明显,HRDD的管理和监督是确保有意义实施的重要因素,而不是公司注重形式而非实质。本文确定了这些关键的内部治理问题,并就如何最好地确保有效实施提供了建议。文章认为,对于大多数公司来说,HRDD的日常管理最符合合规职能,而不是法律职能,这一新角色可能是合规职能发展的下一步。本文还讨论了董事会的作用,以及HRDD如何结合信托责任法的最新发展,推动董事进行更严格的监督。此外,它还讨论了对支持人力资源开发署的管理和监督至关重要的信息类型。
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引用次数: 2
Strategic Surrogates or Sad Sinners: U.S. Taxation of Bartering in Digital Services 战略代理人还是可悲的罪犯:美国对数字服务中的物物交换征税
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-12-10 DOI: 10.1111/ablj.12196
Mark J. Cowan, Joshua Cutler, Ryan J. Baxter

The COVID-19 pandemic caused both a surge in technology use and a deterioration in government finances. At the same time, big tech companies are under scrutiny by lawmakers for tax avoidance, antitrust issues, and other concerns. These realities call for governments to reassess tax policy toward tech companies and for tech companies to reassess legal strategy toward taxes. State and federal governments' tax bases are eroding because of the noncash, barter nature of modern transactions. When a taxpayer uses “free” digital services such as e-mail, social media, or search engines, she pays via access to her personal data or attention. From a legal and policy standpoint, these barter transactions should be taxed just as if cash had changed hands, but because it is not practicable to identify, value, and tax the data and time of each user, they have escaped taxation, giving many tech companies an unintended tax advantage. To address this unfairness, this article proposes a surrogate tax, through which the tech company acts as a proxy to pay the tax that is technically the liability of its users. In contrast to Digital Services Taxes (DSTs), which have been the main focus of policy makers and the extant literature, surrogate taxes adhere closely to standards of good tax policy, providing an administrable means of capturing untaxed digital barter while advancing fairness across the industry's business models. From a legal strategy standpoint, this article argues that tech companies themselves should support surrogate taxes, to avoid facing more onerous, “sin”-like taxes, such as DSTs.

新冠肺炎疫情导致技术使用激增和政府财政恶化。与此同时,大型科技公司正因避税、反垄断问题和其他问题受到立法者的审查。这些现实要求政府重新评估对科技公司的税收政策,并要求科技公司重新评估税收的法律策略。由于现代交易的非现金、易货性质,州和联邦政府的税基正在侵蚀。当纳税人使用电子邮件、社交媒体或搜索引擎等“免费”数字服务时,她会通过访问个人数据或关注进行支付。从法律和政策的角度来看,这些易货交易应该像现金易手一样征税,但由于对每个用户的数据和时间进行识别、估价和征税是不可行的,它们逃脱了税收,这给了许多科技公司意想不到的税收优势。为了解决这种不公平现象,本文提出了一种替代税,通过该税,科技公司作为代理人支付技术上由其用户承担的税款。与数字服务税(DST)不同,数字服务税一直是政策制定者和现有文献的主要关注点,代理税严格遵守良好税收政策的标准,提供了一种可管理的手段来捕捉免税的数字易货,同时提高行业商业模式的公平性。从法律战略的角度来看,这篇文章认为,科技公司本身应该支持代理税,以避免面临更繁重的“罪恶”税,如DST。
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引用次数: 1
Regulation of Crypto: Who Is the Securities and Exchange Commission Protecting? 加密货币监管:美国证券交易委员会在保护谁?
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-09-29 DOI: 10.1111/ablj.12192
Carol R. Goforth

SEC v. Telegram and SEC v. Kik, both decided in 2020, establish some ground-breaking rules about how the federal securities laws apply to cryptotransactions. In both cases, the court concluded that a large, reputable social media company had conducted a crypto offering in violation of federal law. In neither case was fraud or other criminal conduct an issue; the sole problem was failure to register the sales or comply with an exemption from registration. To find a violation, both opinions collapsed a two-phase offering into a single, integrated scheme. This approach appears to be an unnecessarily overbroad application of the law, protecting neither investors nor capital markets. A cost of this approach is that crypto entrepreneurs are being forced away from the United States, and American investors are denied opportunities to participate in a potentially desirable technological revolution. This article examines the rationale employed in these two decisions in light of the existing statutory and regulatory framework. It also considers recent amendments to federal rules defining the “integration doctrine,” which was relied on explicitly in the Kik decision. This article suggests how future crypto offerings might be structured to avoid the pitfalls created by the Kik and Telegram opinions. It advocates a more limited approach than the one urged by regulators. Its suggestions depend not on a change in law but only a change in understanding what is required in order to conduct a compliant crypto offering.

SEC诉Telegram和SEC诉Kik案都是在2020年决定的,它们就联邦证券法如何适用于加密交易制定了一些突破性的规则。在这两起案件中,法院得出的结论是,一家声誉良好的大型社交媒体公司进行了加密货币发行,违反了联邦法律。在这两种情况下都不存在欺诈或其他犯罪行为问题;唯一的问题是未能登记销售或遵守注册豁免。为了找出违规之处,两种意见都将两阶段的发行合并为一个单一的整合方案。这种做法似乎是对法律不必要的过度适用,既不保护投资者,也不保护资本市场。这种做法的代价是,加密企业家被迫离开美国,美国投资者被剥夺了参与一场可能令人满意的技术革命的机会。本文根据现有的法律和监管框架,研究了这两项决定所采用的理由。它还考虑了最近对定义“融合原则”的联邦规则的修订,Kik案的判决明确依赖于这一原则。本文建议如何构建未来的加密产品,以避免Kik和Telegram意见造成的陷阱。它提倡一种比监管机构所敦促的更有限的方法。它的建议不取决于法律的变化,而只取决于对进行合规加密产品所需条件的理解的变化。
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引用次数: 5
Reforming Dodd-Frank from the Whistleblower's Vantage 从告密者的Vantage改革多德-弗兰克法案
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-09-29 DOI: 10.1111/ablj.12191
Justin W. Evans, Stephanie R. Sipe, Mary Inman, Carolina Gonzalez

Whistleblowing is a critical component of corporate integrity and economic stability in the United States. It is unsurprising, then, that policy makers and observers have directed considerable attention to the improvement of whistleblower laws. This article assesses potential improvements to the most visible recent addition to the federal whistleblower regime—the Dodd-Frank Act, passed in the wake of the Great Recession to combat securities fraud. The article makes two overarching claims. First, the Securities and Exchange Commission's (SEC) recently adopted changes to the administrative rules governing the Dodd-Frank whistleblower program (WBP) are incomplete since they were formulated without reference to the experiences of whistleblowers and their counsel. Moreover, at least three of the SEC's adopted changes will undermine the WBP and should be repealed. Second, the time is right to experiment with improvements to the WBP. If the SEC's new rules are not the optimal path forward, the question remains what alternative changes should be adopted. To that end, the article utilizes an original qualitative data set consisting of in-depth interviews with two dozen whistleblower counsel, two whistleblowers, a former SEC commissioner, and a former chief of the SEC's Office of the Whistleblower to propose its own set of changes. Congress and the SEC should embrace these changes to reform Dodd-Frank from the whistleblower's vantage and to move the WBP closer to its full potential as a deterrent and remedy for securities fraud.

举报是美国企业诚信和经济稳定的重要组成部分。因此,政策制定者和观察人士将相当多的注意力放在改善举报人法律上,也就不足为奇了。本文评估了联邦举报人制度中最明显的新规定——多德-弗兰克法案——的潜在改进,该法案是在大衰退之后通过的,旨在打击证券欺诈。这篇文章提出了两个主要主张。首先,美国证券交易委员会(SEC)最近对《多德-弗兰克举报人计划》(Dodd-Frank举报人计划)的行政规则进行了修改,但这些修改并不完整,因为这些修改的制定没有参考举报人及其律师的经验。此外,SEC采纳的改革措施中,至少有三项将削弱WBP,应予以废除。其次,现在正是尝试改进WBP的时候。如果证交会的新规则不是最佳的前进道路,那么问题仍然是应该采取哪些替代变化。为此,本文利用了一个原始的定性数据集,其中包括对24名举报人律师、两名举报人、一名前SEC专员和一名前SEC举报人办公室主任的深度访谈,提出了自己的一套改革建议。国会和证交会应该接受这些变化,从举报人的角度对《多德-弗兰克法案》进行改革,并使WBP更接近发挥其作为证券欺诈威慑和补救措施的全部潜力。
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引用次数: 1
Is Legal Harmonization Always Better? The Counter-Case of Utility Models 法律协调总是更好吗?实用新型反例
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-09-29 DOI: 10.1111/ablj.12190
Daniel R. Cahoy, Lynda J. Oswald

Policy makers and international institutions have long maintained that the global business environment is best supported when countries harmonize by adopting substantially uniform legal structures. This is particularly true in the context of intellectual property rights. When such national systems are similar, we believe that investment is undergirded and market participation is facilitated. However, this assumption may be incorrect in some cases. Marginal disharmony in certain intellectual property rights may provide countries space for experimentation while not impeding effective management of global intellectual property portfolios at the firm level. As evidence, we look to the utility model. This long-standing form of invention right is conspicuously and surprisingly unstandardized across the world, yet our analysis, using PATSTAT data, reveals that firms are able to negotiate this disharmony effectively. We employ a novel empirical method that tracks U.S.-priority patents to establish that firms use utility models to optimize their overall appropriability needs by region. Our study finds evidence that a firm may choose standard patent protection in one region and utility model protection in another, even though standard patent protection is available in both settings. We propose that a “zone of appropriability preference” exists when utility models and standard patents overlap, and this zone provides important strategic opportunities to firms with global intellectual property portfolios. Our study thus provides an important counter-case for harmonization of national intellectual property laws. As a result, we suggest that such efforts be undertaken with more caution; in some cases, harmonization may do more harm than good.

决策者和国际机构长期以来一直认为,当各国通过采用基本上统一的法律结构来协调时,全球商业环境得到了最好的支持。在知识产权方面尤其如此。当这些国家制度相似时,我们认为投资是有基础的,市场参与是便利的。然而,这种假设在某些情况下可能是不正确的。某些知识产权的边际不协调可能为各国提供试验空间,同时不妨碍在公司一级对全球知识产权组合进行有效管理。作为证据,我们期待实用新型。这种长期存在的发明权利形式在世界范围内明显且令人惊讶地不标准化,然而我们使用PATSTAT数据的分析表明,企业能够有效地协商这种不和谐。我们采用了一种新颖的经验方法来跟踪美国优先权专利,以确定公司使用实用新型来优化其按地区的总体适宜性需求。我们的研究发现,企业可能会在一个地区选择标准专利保护,而在另一个地区选择实用新型保护,即使两个地区都有标准专利保护。我们提出,当实用新型和标准专利重叠时,存在“适宜性偏好区”,这一区域为拥有全球知识产权组合的企业提供了重要的战略机会。因此,我们的研究为各国知识产权法的协调提供了一个重要的反例。因此,我们建议在进行这种努力时要更加谨慎;在某些情况下,协调可能弊大于利。
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引用次数: 0
The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison 国际公司人权诉讼的未来:跨大西洋比较
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-09-29 DOI: 10.1111/ablj.12193
Rachel Chambers, Gerlinde Berger-Walliser

Imposing legal liability on corporations for their involvement in human rights violations remains problematic. In the United States, civil liability in such circumstances developed in a series of Alien Tort Statute cases. This evolution came to an abrupt end with the cases of Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank. As corporate human rights litigation declined in the United States, courts in Europe were presented with their first civil cases, and plaintiffs had some successes. Legal remedies for corporate human rights violations also made it onto the agenda of policy makers at the European Union and national European governments with laws requiring companies to conduct human rights due diligence throughout their operations. Against this background, this article investigates the current state and potential future development of corporate human rights litigation in the United States and Europe. It seeks to answer the following questions: Is the United States losing its prominent place as a preferred forum for human rights litigation against corporate defendants, as recent Supreme Court decisions suggest? What made the U.S. courts attractive in the first place? Is Europe taking over this role, and if so, should the United States be concerned about these developments? Are recent doctrinal and legislative trends in Europe transferable to the U.S. legal system and suitable to fill the gaps left by Kiobel and Jesner? Finally, what do these shifts on both sides of the Atlantic mean for victims of human rights violations and their prospects of effectively pursuing their rights?

对参与侵犯人权的公司施加法律责任仍然存在问题。在美国,这种情况下的民事责任是在一系列《外国人侵权法》案件中发展起来的。随着Kiobel诉荷兰皇家石油公司和Jesner诉阿拉伯银行的案件,这种演变戛然而止。随着美国企业人权诉讼的减少,欧洲法院收到了第一批民事案件,原告也取得了一些成功。针对企业侵犯人权的法律补救措施也被提上了欧盟和欧洲各国政府的政策制定者的议程,这些国家的法律要求企业在整个经营过程中进行人权尽职调查。在此背景下,本文考察了美国和欧洲企业人权诉讼的现状和未来发展趋势。它试图回答以下问题:美国是否正在失去其作为针对企业被告的人权诉讼首选论坛的突出地位,正如最近最高法院的判决所表明的那样?最初是什么让美国法院具有吸引力?欧洲是否正在接替这一角色,如果是这样,美国是否应该关注这些事态发展?欧洲最近的理论和立法趋势是否可以转移到美国的法律体系中,是否适合填补Kiobel和Jesner留下的空白?最后,大西洋两岸的这些转变对侵犯人权行为的受害者及其有效追求其权利的前景意味着什么?
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引用次数: 2
Deconstructing Fallacies in Products Liability Law to Provide a Remedy for Economic Loss 破除产品责任法的谬误为经济损失提供救济
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-07-23 DOI: 10.1111/ablj.12185
Alissa del Riego

For years, products liability law has failed to provide a remedy for consumers who suffer financial injury as a result of purchasing defective products manufacturers place and keep in the marketplace. The economic loss rule and defect manifestation requirements have, to date, foreclosed products liability claims when consumers suffer only economic injury and severely hampered recovery through other claims. Prior discussion of consumer economic loss litigation has been critical and embraced the necessity of the injury-based economic loss rule and defect manifestation requirements to protect manufacturers from perceived endless liability. While a few scholars have addressed some of the deficiencies behind the economic loss rule, this article builds on those discussions, addressing for the first time the flawed rationales behind defect manifestation requirements, and deconstructs in detail the outdated and flawed assumptions or fallacies upon which the rationales behind both doctrines are based. After deconstructing and exposing the, at best, questionable assumptions behind the economic loss rule and defect manifestation requirements, the article advocates a novel expansion of products liability law that provides a remedy for consumer economic loss caused by dangerously defective products. This proposed framework provides the proper demarcation between contract and tort, is consistent with earlier justifications eliminating privity and negligence, better aligns consumer safety with manufacturers' economic interests, bridges the current liability gap, and streamlines existing litigation.

多年来,产品责任法未能为消费者提供补救措施,这些消费者因购买了制造商在市场上放置和保留的有缺陷的产品而遭受经济损失。迄今为止,经济损失规则和缺陷表现要求在消费者仅遭受经济损失而严重阻碍通过其他索赔获得赔偿的情况下,取消了产品责任索赔。先前关于消费者经济损失诉讼的讨论是批判性的,并且包含了基于伤害的经济损失规则和缺陷表现要求的必要性,以保护制造商免受感知到的无休止的责任。虽然一些学者已经讨论了经济损失规则背后的一些缺陷,但本文以这些讨论为基础,首次讨论了缺陷表现要求背后的有缺陷的基本原理,并详细解构了两种理论背后的基本原理所基于的过时和有缺陷的假设或谬误。在解构和揭露经济损失规则和缺陷表现要求背后的充其量是有问题的假设之后,文章主张对产品责任法进行新的扩展,为消费者因危险缺陷产品造成的经济损失提供救济。这个拟议的框架提供了合同和侵权行为之间的适当界限,与先前消除私隐和过失的理由一致,更好地将消费者安全与制造商的经济利益结合起来,弥合了目前的责任差距,并简化了现有的诉讼。
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引用次数: 1
Damages for Breach of a Forum Selection Clause 违反论坛选择条款的损害赔偿
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-07-23 DOI: 10.1111/ablj.12183
Tanya J. Monestier

When a party breaches a forum selection clause, a court will normally dismiss the action, therefore forcing the breaching party to re-file in the appropriate forum, or the court will transfer the proceedings to the chosen court. Either way, the nonbreaching party appears to have gotten what he wanted: litigation to proceed before the designated court. However, to get there, the nonbreaching party had to outlay significant expenditures in the form of attorneys' fees. Are these attorneys' fees recoverable as damages? Should they be?

This Article argues that attorneys' fees associated with remedying a breach of a forum selection clause should be recoverable as damages flowing from the breach. Without the prospect of having to pay damages, the breaching party would be permitted to breach a forum selection clause with impunity. In other words, there is no downside to breaching a forum selection clause. Best case scenario, the non-designated court retains jurisdiction; worst case scenario, the breaching party is “sent” to the contractually-designated forum.

Awarding attorneys' fees for breach of a forum selection clause does not run afoul of the American Rule, which requires each side to bear their own costs and attorneys' fees. This is because attorneys' fees for breach of a forum selection clause are a measure of direct damages—and not consequential damages—and therefore do not implicate the American Rule.

当一方违反法院选择条款时,法院通常会驳回诉讼,从而迫使违约方在适当的法院重新提起诉讼,或者法院将诉讼移交给选定的法院。无论哪种方式,未达成协议的一方似乎得到了他想要的:在指定法院进行诉讼。然而,为了实现这一目标,非缔约方不得不以律师费的形式支出巨额开支。这些律师费作为损害赔偿可收回吗?应该是吗?本条认为,与补救违反法院选择条款有关的律师费应作为违约产生的损害赔偿金予以追回。在不必支付损害赔偿的情况下,违约方将被允许违反法院选择条款而不受惩罚。换言之,违反论坛选择条款没有任何不利影响。在最佳情况下,非指定法院保留管辖权;在最坏的情况下,违约方被“送到”合同指定的法院。因违反法院选择条款而判给律师费并不违反美国规则,该规则要求双方承担各自的费用和律师费。这是因为违反法院选择条款的律师费是衡量直接损害的标准,而不是间接损害,因此不涉及美国规则。
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引用次数: 0
Does Conjoint Analysis Reliably Value Patents? 联合分析是否可靠地评估专利?
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-07-23 DOI: 10.1111/ablj.12182
Bernard Chao, Sydney Donovan

Modern technology products are often covered by thousands of patents. Yet awards for a single component have averaged a surprisingly high 9.98% of the infringing product's price. To curb such disproportionate awards, the law insists that damages reflect the contribution made by the patent. But determining how to apportion damages in this way has proved to be elusive. One emerging technique that appears to offer rigor is conjoint analysis, a type of survey borrowed from the marketing world. This article explores the validity of the conjoint analysis technique by running two conjoint analysis surveys. Unfortunately, we found serious problems. First, the results of our surveys yielded irrationally high numbers. Most survey features suffered from bizarrely high valuations. Second, we demonstrate how experts can manipulate the results by selecting among a number of different ostensibly reasonable statistical choices and picking the one that yields the most desirable outcome. Based on these findings, we provide several recommendations. First, we argue that courts should not allow evidence of conjoint analysis to show the monetary value of specific features. However, we recognize that there is support for using conjoint analysis to provide relative valuations (i.e., feature A is worth significantly more than feature B). To the extent that courts permit this use, we suggest ways to ensure that experts employ the best science available. These recommendations include assuring that experts accurately depict variability in their results and requiring experts to “preregister” the approach they intend to use with the court.

现代技术产品通常拥有数千项专利。然而,单个组件的平均奖金高达侵权产品价格的9.98%,令人惊讶。为了遏制这种不成比例的裁决,法律坚持认为损害赔偿反映了专利的贡献。但事实证明,如何以这种方式分摊损害赔偿金是难以捉摸的。一种新兴的技术似乎提供了严谨性,那就是联合分析,这是一种从营销界借来的调查。本文通过两次联合分析调查来探讨联合分析技术的有效性。不幸的是,我们发现了严重的问题。首先,我们的调查结果得出了不合理的高数字。大多数调查特征都遭受了异常高的估值。其次,我们展示了专家如何通过在许多不同的表面上合理的统计选择中进行选择,并选择最理想的结果来操纵结果。基于这些发现,我们提出了一些建议。首先,我们认为法院不应该允许联合分析的证据来显示特定特征的货币价值。然而,我们认识到,有人支持使用联合分析来提供相对估值(即,特征A的价值明显高于特征B)。在法院允许的范围内,我们提出了确保专家使用现有最佳科学的方法。这些建议包括确保专家准确描述其结果的可变性,并要求专家向法院“预先登记”他们打算使用的方法。
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引用次数: 1
Protecting Third Parties in Contracts 保护合同中的第三方
IF 1.2 3区 社会学 Q3 BUSINESS Pub Date : 2021-07-23 DOI: 10.1111/ablj.12184
Kishanthi Parella

Corporations routinely impose externalities on a broad range of non-shareholders, as illustrated by several unsuccessful lawsuits against corporations involving forced labor, human trafficking, child labor, and environmental harms in global supply chains. Lack of legal accountability subsequently translates into low legal risk for corporate misconduct, which reduces the likelihood of prevention. Corporate misconduct toward non-shareholders arises from a fundamental inconsistency within contract law regarding the status of third parties: On the one hand, we know that it takes a community to contract. Contracting parties often rely on multiple third parties—not signatories to the contract—to play important roles in facilitating exchange, such as reducing market transaction costs, improving information flows, and decreasing the risk of opportunism. On the other hand, we deny this community protection from the externalities that contracting parties impose on them. This article examines a corporation's duties to others in its role as a contracting party. Normatively, this article proposes an alternative view of contracts as an ecosystem with three attendant principles that result from this view: (a) third-party protections from negative externalities, (b) contract design obligations of contracting parties, and (c) recourse to legal remedies for third parties. On a policy level, this article proposes the following duty to contract in order to translate theory into practice: Contracting parties are required to take into account negative externalities to third parties when the contracting parties could reasonably foresee that performance of the contract would create a risk of physical harm to these third parties.

公司经常将外部性强加给广泛的非股东,几起针对公司的诉讼都没有成功,涉及强迫劳动、人口贩运、童工和全球供应链中的环境危害。缺乏法律责任随后转化为公司不当行为的法律风险较低,从而降低了预防的可能性。公司对非股东的不当行为源于合同法中关于第三方地位的根本不一致:一方面,我们知道需要一个社区来签订合同。缔约方通常依靠多个第三方——而不是合同签署方——在促进交换方面发挥重要作用,例如降低市场交易成本、改善信息流和降低机会主义风险。另一方面,我们否认这种社区保护,使其免受缔约方强加给他们的外部因素的影响。本文考察了公司作为缔约方对他人的义务。规范地说,这篇文章提出了一种将合同视为生态系统的替代观点,并提出了由此产生的三项附带原则:(a)第三方免受负外部性的保护,(b)缔约方的合同设计义务,以及(c)对第三方的法律补救。在政策层面上,本条提出了以下合同义务,以便将理论转化为实践:当缔约方能够合理预见履行合同将对第三方造成人身伤害的风险时,缔约方必须考虑到对这些第三方的负外部性。
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引用次数: 3
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