2020年5月21日，美国参院通过了Chinese Company Oversight Bill，（“中国公司监督法案”，“中概股法案”）多数中概面临摘牌风险， 消息一出， 中概股集体跳水。法案字数不多，仅寥寥几页，但是充满杀机。
前特朗普政府贸易顾问兼合伙人克莱特·威廉姆斯(Clete Willems)对阿金·甘(Akin Gump)表示：“希望这是给中概敲响的警钟，让其与世界其他国家保持一致，并让公司审计透明化。”
116TH CONGRESS 1ST SESSION
To amend the Sarbanes-Oxley Act of 2002 to require certain issuers to disclose to the Securities and Exchange Commission information regard- ing foreign jurisdictions that prevent the Public Company Accounting Oversight Board from performing inspections under that Act, and for other purposes.
IN THE SENATE OF THE UNITED STATES
MARCH 28, 2019
Mr. KENNEDY (for himself and Mr. VAN HOLLEN) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs
To amend the Sarbanes-Oxley Act of 2002 to require certain issuers to disclose to the Securities and Exchange Com- mission information regarding foreign jurisdictions that prevent the Public Company Accounting Oversight Board from performing inspections under that Act, and for other purposes.
Be it encacted by the Senate and House of Representatives of the United States of America in Congress assembled.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Holding Foreign Companies Accountable Act’’.
SEC. 2. DISCLOSURE REQUIREMENT.
Section 104 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214) is amended by adding at the end the fol- lowing:
‘‘(i) DISCLOSURE REGARDING FOREIGN JURISDIC- TIONS THAT PREVENT INSPECTIONS.—
‘‘(1) DEFINITIONS.—In this subsection—
‘‘(A) the term ‘covered issuer’ means an issuer that is required to file reports under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m; 78o(d)); and
‘‘(B) the term ‘non-inspection year’ means, with respect to a covered issuer, a year—
‘‘(i) during which the Commission identifies the covered issuer under para- graph (2)(A) with respect to every report described in subparagraph (A) filed by the covered issuer during that year; and
‘‘(ii) that begins after the date of the enactment of this subsection.
‘‘(2) DISCLOSURE TO COMMISSION.—The Commission shall—
‘‘(A) identify each covered issuer that, with respect to the preparation of the audit report on the financial statement of the covered issuer that is included in a report described in paragraph (1)(A) filed by the covered issuer, retains
a registered public accounting firm that has a branch or office that—
‘‘(i) is located in a foreign jurisdic- tion; and
‘‘(ii) the Board is unable to inspect under this section; and
‘‘(B) require each covered issuer identified
under subparagraph (A) to, in accordance with the rules issued by the Commission under para- graph (4), submit to the Commission docu- mentation that establishes that the covered issuer is not owned or controlled by a govern- mental entity in the foreign jurisdiction de- scribed in subparagraph (A)(i).
‘‘(3) TRADING PROHIBITION AFTER 3 YEARS OF NON-INSPECTIONS.—
‘‘(A) IN GENERAL.—If the Commission de- termines that a covered issuer has 3 consecutive non-inspection years, the Commission shall pro- hibit the securities of the covered issuer from being traded on a national securities exchange.
‘‘(B) REMOVAL OF INITIAL PROHIBI- TION.—If, after the Commission imposes a pro- hibition on a covered issuer under subparagraph (A), the covered issuer certifies to the Commission that the covered issuer has re- tained a registered public accounting firm that the Board has inspected under this section to the satisfaction of the Commission, the Com- mission shall end that prohibition.
‘‘(C) RECURRENCE OF NON-INSPECTION YEARS.—If, after the Commission ends a prohi- bition under subparagraph (B) or (D) with re- spect to a covered issuer, the Commission deter- mines that the covered issuer has a non-inspec- tion year, the Commission shall prohibit the se- curities of the covered issuer from being traded on a national securities exchange.
‘‘(D) REMOVAL OF SUBSEQUENT PROHIBI- TION.—If, after the end of the 5-year period be- ginning on the date on which the Commission imposes a prohibition on a covered issuer under subparagraph (C), the covered issuer certifies to the Commission that the covered issuer will re- tain a registered public accounting firm that the Board is able to inspect under this section, the Commission shall end that prohibition.
‘‘(4) RULES.—Not later than 90 days after the date of enactment of this subsection, the Commission shall issue rules that establish the manner and
form in which a covered issuer shall make a disclo- sure and a submission required under clauses (i) and (ii) of paragraph (2)(B), respectively.’’.
现在法案尚未成为最终法律，而且SEC 的实施细则也有待出台。不过从以上通过的法案来看， 简而言之， 如果中概股的审计底稿和相关审计工作问题没有妥当解决， 在美上市的中概公司如果不想被摘牌， 就不能聘请中国的会计师（包括“四大”中国成员所和中国香港成员所，中概股美国上市的主力审计师）。
也有朋友可能会问， 那如果变一下签字的会计所，比如不由“四大”中国成员所签名，而由“四大”非中国成员所来签字，不就化解此招了吗？这里面也涉及到跨境实地审计监管问题；而且，“四大”成员所在法律上是独立的实体，一家成员所的法律风险，尽量要切割，否则“四大”的整体法律风险更大。目前“四大”在中国的审计收入，占其全球的总收入也就5%左右， 这个法律风险是否合适承担，未必如此。
当然，最为关键的是， 法案2(A)中已经提出，对上市公司所聘请的会计师事务所，如果其成员所或者办事机构所处的司法管辖区，PCAOB 无法进行检查的，SEC 仍需要其进行披露和汇报。最后的决定权在SEC 。