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United Arab Emirates: How To Solve Property Disputes In Dubai? - Mondaq News Alerts

Google International ADR News - Wed, 2018-06-06 04:32

United Arab Emirates: How To Solve Property Disputes In Dubai?
Mondaq News Alerts
During the 2008 financial crisis, we experienced major real estate disputes that helped to test Dubai real estate laws and identify its weaknesses. After almost a decade of implementation, Dubai's real estate laws and practice are much more robust ...

Speech by SFST at 2018 Annual Conference of In-House Lawyers - 7thSpace Interactive (press release)

Google International ADR News - Tue, 2018-06-05 23:11

Speech by SFST at 2018 Annual Conference of In-House Lawyers
7thSpace Interactive (press release)
Yet another international law firm developed its own AI platform to read and analyse clauses in loan agreements. The system emulates the decision-making process of a human being, extracting, reviewing and analysing key contract risks, and .... Apart ...

Onnoghen Seeks Inclusion Of CSR Concept In Nigerian Laws - Independent Newspapers Limited

Google International ADR News - Tue, 2018-06-05 20:00

Independent Newspapers Limited

Onnoghen Seeks Inclusion Of CSR Concept In Nigerian Laws
Independent Newspapers Limited
Abuja – Walter Onnoghen, Chief Justice of Nigeria (CJN) and chairman, Board of Governors, National Judicial Institute (NJI), on Tuesday, sought the inclusion of Corporate Social Responsibility (CSR) concept in Nigeria's laws. Justice Onnoghen made the ...

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KP lawyers hail appointment of Justice Dost Muhammad as caretaker CM - The News International (blog)

Google International ADR News - Tue, 2018-06-05 19:45

KP lawyers hail appointment of Justice Dost Muhammad as caretaker CM
The News International (blog)
The other achievements of Justice Dost Muhammad Khan include introducing of mobile courts in the province as well as country's history, established of the international level KP Judicial Academy and then established Alternative Dispute Resolution (ADR) ...

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Lawyers hail appointment of Justice Dost Muhammad as caretaker CM - The News International (blog)

Google International ADR News - Tue, 2018-06-05 19:45

Lawyers hail appointment of Justice Dost Muhammad as caretaker CM
The News International (blog)
The other achievements of Justice Dost Muhammad Khan include introducing of mobile courts in the province as well as country's history, established of the international level KP Judicial Academy and then established Alternative Dispute Resolution (ADR) ...

and more »

UAE Federal Arbitration Law Adopted at Long Last: All Well that Ends Well?

Kluwer Arbitration Blog - Tue, 2018-06-05 17:05

Gordon Blanke

The adoption of the UAE Federal Arbitration Law  has kept the specialist arbitration profession in the waiting for the better part of a decade. It was finally adopted earlier this week, to the great acclaim of the local and international arbitration community. The new Law, Law No. 6 of 2018, will apply within 30 days from publication in the UAE Official Gazette to all ongoing and newly initiated arbitration proceedings seated in the UAE or to those proceedings that are governed by the provisions of the new Law by reason of another connecting factor (Article 2). The new Law repeals the provisions of the UAE Arbitration Chapter, i.e. Articles 203 through to 218 and 236 of the UAE Civil Procedures Code, which have governed UAE-seated arbitrations to date.

The UAE Arbitration Chapter has routinely been criticised for being an archaic instrument of local arbitration, which is out of time with the requirements of arbitration in a modern age. That said, albeit based on the UNCITRAL Model Law and bringing welcome change to the limited procedural scope of the UAE Arbitration Chapter, the new Law essentially fails to deliver on the ambitious promises that previous drafts once held. The better part of the new Law codifies existing case law precedent that stems from the UAE courts’ interpretation of the provisions of the UAE Arbitration Chapter since its adoption in 1992. That case law precedent is remarkably arbitration-friendly and has given rise to a jurisprudence constantethat has provided reliable guidance in the application of the UAE Arbitration Chapter over the years (see in particular the detailed article-by-article commentary on the practice and procedure under the UAE Arbitration Chapter for a full study: G. Blanke, Commentary on the UAE Arbitration Chapter, Thomson Reuters/Sweet & Maxwell, 2017). By way of example, the principle of party autonomy, pursuant to which the arbitration process is a matter for contractual agreement between the parties; the separability of the arbitration agreement from the main contract, which allows a tribunal to investigate matters of invalidity affecting the main contract; the principle of kompetenz-kompetenz, whereby the arbitral tribunal is empowered to determine its own jurisdiction; the distinction between arbitration agreements and submission agreements; the incorporation by reference of arbitration agreements; the distinction between seat and venue of the arbitration; the res judicataeffect of awards; and the partial enforcement or nullification of arbitration awards are all concepts of arbitration well known from arbitration practice under the UAE Arbitration Chapter. Whilst derived from prevailing case law precedent under the UAE Arbitration Chapter, these fundamental concepts of arbitration now find express codification in the new Law.

The new Law also provides detailed guidance on the formation of the arbitral tribunal and potential challenges and the replacement of arbitrators, the tribunal’s procedural and substantive decision-making as well as the termination of the arbitration reference. Further, the new Law contains detailed wording on the process of the arbitration going forward, such as the exchange of substantive pleadings by the parties, including the statement of claim and statement of defense and counterclaim, the language of the arbitration, the submission of evidence (including tribunal and party-appointed experts), the presentation of witness testimony, the power of the tribunal to determine the applicable law, the form and content requirements of a resultant award as well as the confidentiality of awards and the interpretation, correction and the issuance of additional awards. Most of these provisions are closely modeled on the UNCITRAL Model Law and will as such be by and large familiar to the discerning practitioner (depending always on the quality of the English translation in hand, the text of the law having as yet only been published in its Arabic original). That said, virtually all of these provisions have existed before in one form or another in arbitration practice under UAE Arbitration Chapter in combination with a leading set of arbitration rules, whether e.g. the local DIAC Rules, the ICC Rules or the free zone DIFC-LCIA Rules. In this sense, the new Law provides no doubt a useful stand-alone framework for ad hoc arbitration outside a firm institutional context and as such, on its own, is no doubt superior to the provisions of the UAE Arbitration Chapter. That said, leading local institutional rules – in addition to the UNCITRAL Rules – have proven to be a suitable and helpful procedural complement to the UAE Arbitration Chapter over the years in order to avoid undesirable stalemate in an ad hoc context.

Be that as it may, some of the provisions of the new Law are more innovative and do bring change – for better or worse. Some of the better changes include in no particular order the following:

  • The parties’ free choice of impartial and independent arbitrators (subject to an express prohibition to appoint members of staff of arbitration institutions in charge of the administration of an individual reference) (Article 10);
  • the arbitrability of tortious causes of actions (Article 2(3));
  • the introduction of a wide definition of “international” arbitration, which may lay the basis for the gradual formation of a domestic/international public policy dichotomy, the latter being typically more restrictive than the former;
  • the more broadly available arbitration defense, which – in the terms of the new Law (Article 8(1)) – no longer needs to be advanced “in the first session/hearing”before the court, a term that used to cause interpretive challenges under Article 203(5) of the UAE Arbitration Chapter;
  • the express and wide power given to the courts to support the arbitral process through interim measures both before and after initiation of the arbitration as appropriate (Articles 18) and supplementary powers to similar effect granted to the arbitral tribunal (Article 21);
  • the tribunal’s power to join a third party to the arbitration process (Article 22);
  • the confidentiality of the arbitration proceedings (Article 33(1));
  • hearings (Article 33(3)), including the hearing of witnesses, by means of modern means of communication (such as video-conferencing), their physical presence at the hearing not being required (Article 35);
  • the award being deemed issued at the seat of the arbitration, there being no requirement for arbitrators e.g. from outside the UAE to be present in the UAE for a valid execution of the award (Article 41(6)); and
  • the tribunal’s express power to render interim and partial awards (Article 39), which – pursuant to Article 39(2) – are enforceable before the UAE courts.

 

Under the new Law, there is also no longer a requirement for a Preliminary Meeting in the terms of Article 208(1) of the UAE Arbitration Chapter, which will no doubt streamline the arbitration process and remove one procedural stumbling bloc encountered under the UAE Arbitration Chapter. In stark contrast to the position under Article 211 of the UAE Arbitration Chapter, there is also no longer an express requirement for taking witness testimony on oath, a requirement that may, however, survive given the mandatory character it has been accorded by existing case law precedent (see Dubai Court of Cassation Case No. 503/2003 – Bechtel).

Further, all court supportive functions under the new Law are initiated before the competent court of appeal, with the decisions of that court mostly being taken as final and binding and not being subject to further appeal.

Great disappointment is caused by provisions that either create procedural uncertainty, confirm a previously criticised positive law position or add new procedural requirements, which – if anything – render the successful conduct of an arbitration under the new Law more cumbersome. These include in no particular order:

  • The cumbersome minuting requirement kept alive by the new Law with respect to any meetings with the parties (Article 28(b));
  • the continued requirement for special powers of attorney for valid representation of a party in arbitration or a party’s valid submission to an arbitration process (subject to, of course, the application of apparent authority to the formation of arbitration agreements in the terms ordained by the UAE courts under the UAE Arbitration Chapter) (Article 4);
  • the requirement to add the arbitrators’ nationality in the text of the award (Article 41(5));
  • the absence of an express tribunal power to award party costs, these being expressly “at [a party’s] own expense”(Article 33(4) read together with Article 46), thus confirming the position taken under the UAE Arbitration Chapter (see Dubai Court of Cassation Case No. 282/2012);
  • the requirement to render an award “within six months from the date of the first session in the arbitration”, subject to extension by the arbitrator by an additional six months and party agreement to any further extensions (further extensions without party agreement being subject to approval by the UAE courts) (Article 42), essentially confirming the cumbersome provisions on time-limits under the UAE Arbitration Chapter; and
  • the need to serve a copy of the award within as little as 15 days after issuance (Article 44).

Finally, under the new Law, the enforcement and onward execution of an award still requires the completion of a ratification (or validation) process before the UAE courts (Article 52) in terms similar to those under Article 215(1) of the UAE Arbitration Chapter. Importantly, under the new Law, both a supervisory court ruling ratifying an award and a ruling setting aside an arbitral award can be appealed (Article 54), thus essentially keeping in place a fully-fledged appeal process. Equally, a ruling on an action for annulment, which cannot be brought in defense to an action for enforcement under the new Law, generally remains subject to appeal (Article 54). In this sense, the new Law will be no more enforcement-friendly with respect to domestic awards than the UAE Arbitration Chapter. That said, the appeal process is shortened by one stage, any application for enforcement or nullification being initiated before the competent court of appeal, subject to further appeal only to the competent court of cassation. Further, unlike the present situation under the UAE Arbitration Chapter, the underlying arbitration agreement remains valid and the parties will have to pursue the resolution of their pending dispute in an arbitral forum. Article 54 also provides for the award to be remitted to the arbitrator to avoid nullification in the terms presently prevailing under Article 214 of the UAE Arbitration Chapter. The grounds for challenge of an arbitral award under the new Law are identical to those of the UNCITRAL Model Law and hence perceived as more arbitration-friendly, even though this is not necessarily the case in practice given the UAE courts’ interpretation of the corresponding provisions in favorem arbitrandi. Importantly, an application for annulment does not automatically suspend the execution of the award (Article 56). Under the new Law, like the position under the UAE Arbitration Chapter, both a decision by the UAE court to execute an award and one against can be appealed (Article 57).

To conclude, whether the adage that all is well that ends well applies to the new UAE Federal Arbitration Law is highly questionable. With the passage of time, it will be seen whether the adoption of the new Law has been a step in the right direction.

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
€ 240


The post UAE Federal Arbitration Law Adopted at Long Last: All Well that Ends Well? appeared first on Kluwer Arbitration Blog.

Epic Decision by Supreme Court Orders Arbitration, Prohibits Class Action - Law.com

Google International ADR News - Tue, 2018-06-05 15:08

Law.com

Epic Decision by Supreme Court Orders Arbitration, Prohibits Class Action
Law.com
... for alternative dispute resolution. McMahon was the watershed by which the predominant practice on Wall Street has long called for the arbitration of most customer/stockbroker and employee/firm disputes. Stolt-Nielsen S.A. v. Animalfeeds ...

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Emirates Maritime Arbitration Centre attends Posidonia 2018 in Greece - Hellenic Shipping News Worldwide

Google International ADR News - Tue, 2018-06-05 12:58

Hellenic Shipping News Worldwide

Emirates Maritime Arbitration Centre attends Posidonia 2018 in Greece
Hellenic Shipping News Worldwide
Continuing its work with the international maritime and arbitration communities, the Emirates Maritime Arbitration Centre (EMAC) sponsored and attended the Posidonia, The International Shipping Exhibition in Greece this year. Posidonia is a must-attend ...

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Symposium Articles on The First Amendment, The University, and Conflict

ADR Prof Blog - Tue, 2018-06-05 12:33
From my colleague, S.I. Strong: I am happy to announce the publication of the spring 2018 issue of the Journal of Dispute Resolution, which includes pieces from our symposium on The First Amendment, The University and Conflict. The articles will shortly be put on Westlaw and Lexis, but until then, you can download copies for … Continue reading Symposium Articles on The First Amendment, The University, and Conflict →

Interview with Gustavo Schmidt (CBMA) - Leaders League (press release)

Google International ADR News - Tue, 2018-06-05 08:33

Leaders League (press release)

Interview with Gustavo Schmidt (CBMA)
Leaders League (press release)
President of the Brazilian Center of Mediation and Arbitration (CBMA), Gustavo Schmidt, spoke to Leaders League Brasil about recent developments at CBMA, the second anniversary of the New Civil Procedural Code and trends occurring in the constantly ...

ODR Forum 2018 — Innovation and Impact

ADR Prof Blog - Tue, 2018-06-05 07:30
From my colleague, Amy Schmitz: Dear colleagues, I write to you about the 18th Online Dispute Resolution (ODR) Forum, to be hosted by the NZ Centre for ICT Law in the School of Law at Auckland University, on the 14th & 15th November, 2018.  The ODR Forum is the key annual event for those working … Continue reading ODR Forum 2018 — Innovation and Impact →

London backed to remain a major hub for international dispute resolution post-Brexit - Out-Law.com

Google International ADR News - Tue, 2018-06-05 06:36

London backed to remain a major hub for international dispute resolution post-Brexit
Out-Law.com
The annual Commercial Courts Report 2018 (4-page / 413KB PDF) by Portland Communications highlighted the "increasingly international" nature of commercial cases before London's courts. According to the report, litigants from 69 countries participated ...

Know your exploitation rights: how to make and enforce a Russian trademark licence - Lexology

Google International ADR News - Tue, 2018-06-05 06:29

Know your exploitation rights: how to make and enforce a Russian trademark licence
Lexology
As Russia is a signatory to the Madrid Agreement and the Madrid Protocol, international trademark registrations which designate Russia are also protected and enforced in Russia. ... Mediation is also available as an alternative dispute resolution ...

Emirates Maritime Arbitration Centre Attends Posidonia 2019 In Greece - UrduPoint News

Google International ADR News - Tue, 2018-06-05 04:30

UrduPoint News

Emirates Maritime Arbitration Centre Attends Posidonia 2019 In Greece
UrduPoint News
DUBAI, (UrduPoint / Pakistan Point News / WAM - 05th Jun, 2018) Continuing its work with the international maritime and arbitration communities, the Emirates Maritime Arbitration Centre, EMAC, sponsored and attended the Posidonia, the International ...

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A One-Two Punch to the Kompetenz-Kompetenz Principle in Venezuela

Kluwer Arbitration Blog - Tue, 2018-06-05 02:35

Carmine A. Pascuzzo S.

Young ICCA

This post focuses on two decisions issued by the Venezuelan Supreme Court of Justice in the Corporación LSR case. The decisions constitute an unexpected change in the approach of the Supreme Court towards arbitration, deviating from its latest and vastly commented case law regarding commercial arbitration matters.

Background

The dispute in Corporación LSR arose out of an option contract that contained a pathological arbitration clause, in that the clause referred all future disputes to arbitration under the rules of a non-existing arbitration institution: the Conciliation and Arbitration Centre of the Chamber of Commerce, Industry and Agriculture of the Bolivarian Republic of Venezuela.

Claimants in the case filed suit before the First Instance Courts arguing that it was the correct forum due to the evident impossibility to comply with the arbitration agreement. The Second Tribunal of First Instance declined jurisdiction, in correct application of the Kompetenz-Kompetenz principle (Article 7 of the Venezuelan Arbitration Act) following the Supreme Court’s leading case law regarding arbitration, in particular the 2009 ruling in Astivenca Astilleros de Venezuela, C.A. v. Oceanlink Offshore III AS.

The decision was subject to a jurisdictional review by the Political Administrative Chamber of the Venezuelan Supreme Court. The Political Administrative Chamber reaffirmed the lack of jurisdiction of the courts on the basis that the option contract contained an arbitration clause and, therefore, the courts could not exercise jurisdiction over the dispute.

However, claimants insisted on their arguments and filed a constitutional request for review before the Constitutional Chamber of the Venezuelan Supreme Court, which is considered in more detail below.

The first punch

The Constitutional Chamber of the Supreme Court ruled in favor of claimants. In its reasoning it held that the Political Administrative Chamber failed to consider claimants’ argument regarding the unavailability of the arbitral institution, which amounted to a serious violation of claimants’ access to justice, due process and effective judicial protection. It concluded that it was necessary to produce an express and positive conclusion on claimants’ argument, i.e. to interpret the existence, validity and enforceability of the arbitration agreement. Hence, the Constitutional Chamber remanded the case for retrial before the Political Administrative Chamber in order to decide the appeal in accordance with the criteria established in its decision.

The second punch

The Political Administrative Chamber of the Supreme Court decided the remanded case following the ruling of the Constitutional Chamber. In its decision, the Political Administrative Chamber concluded that the lack of availability of the arbitration center seriously infringed claimants’ due process rights given the uncertainty as to the proper forum to file suit.

Analysis

These decisions are an unpleasant surprise for the Venezuelan arbitration law community, especially since the Venezuelan Constitution provides in its Article 253 that arbitration forms part of the judicial system. As a result, a decision that holds that compelling a dispute to arbitration “hinders the parties’ right to resolve the dispute before a competent tribunal” is an unexpected outcome.

In addition, there is no doubt about the Kompetenz-Kompetenz principle being in force under Venezuelan law. The principle is expressly provided for in Article 5 of the Venezuelan Arbitration Act and affirmed by the Constitutional Chamber of the Supreme Court in Astivenca Astilleros de Venezuela, C.A. v. Oceanlink Offshore III AS:

“The question does not lie in determining the existence of the competence-competence principle in the Venezuelan legal system, which is clearly supporting it, but its application in those cases in which one of the parties that agreed to submit to arbitration all differences or certain differences that have arisen or may arise between them with respect to a certain legal, contractual or non-contractual relationship concerning a matter that can be resolved by arbitration, decides to initiate proceedings before the organs of the Judicial Power….”

Moreover, the Corporación LSR decisions are contrary to the holdings of the Constitutional Chamber regarding the scope of the negative effect of the Kompetenz-Kompetenz principle. The scope of the negative effect of the principle and how the courts should act vis-à-vis a dispute that is subject to an arbitration clause was also an aspect considered in the Astivenca Astilleros de Venezuela, C.A. v. Oceanlink Offshore III AS, in which the Constitutional Chamber held with binding effect that:

“… the summary review [that courts should perform in application of Article 7 of the Venezuelan Arbitration Act] should (i) be limited to the verification of the written nature of the arbitration agreement and (ii) refrain from analyzing possible defects of party consent arising from the written clause.

As we can see, there is no doubt about the scope of Article 7 of the Venezuelan Arbitration Act limiting the courts to a prima facie review as to the existence of the arbitration agreement. However, the Corporación LSR Constitutional Chamber decision diverted from that holding and went as far as to declare that the first instance decision was null because the judge failed to decide on the issue of the nullity and inapplicability of the arbitration clause.

Hence, the Corporación LSR decisions not only contravene with the Venezuelan Arbitration Act but also go against the binding case law of the very same Constitutional Chamber of the Supreme Court – a clear threat to the uniformity of jurisprudence and integrity of the legislation.

Another aspect to consider is the effect these decisions may have on future lower court rulings. The Corporación LSR decisions have created a no-win situation for first instance judges who are forced to take decisions in breach of the law either way: If they apply correctly the Kompetenz-Kompetenz principle and compel to arbitration, they will contravene with the Corporación LSR decisions. However, if they follow them, any rendered decision will be subject to judicial review due to a lack or unduly application of Article 7 of the Venezuelan Arbitration Act and the binding jurisprudence of the Constitutional Chamber of the Supreme Court of Justice (Astivenca Astilleros de Venezuela, C.A. v. Oceanlink Offshore III AS).

Finally, these decisions go against the international trend on the issue at hand. For instance, the UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration indicates that arbitration clauses referring to non-existing arbitral institutions should, whenever possible, be interpreted in an arbitration-friendly way to provide for arbitration under an existing arbitration institution. This has even more significance in a jurisdiction like Venezuela with only two widely recognized arbitration centers: The Centro de Arbitraje de la Cámara de Caracas and the Centro Empresarial de Conciliación y Arbitraje from the Venezuelan American Chamber of Commerce.

Fortunately, the Corporación LSR rulings do not constitute binding precedents under the Venezuelan legal system, and we can hopefully expect that the Supreme Court will undertake future cases in line with arbitration´s fundamental principles.

Carmine A. Pascuzzo S. is a partner at ADM & Asociados in Caracas, Venezuela. He is also a member of the Board of Directors of the Venezuelan Arbitration Association and alumnus of the Stockholm University´s International Commercial Arbitration Law Program.

To make sure you do not miss out on regular updates on the Kluwer Arbitration Blog, please subscribe here.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post A One-Two Punch to the Kompetenz-Kompetenz Principle in Venezuela appeared first on Kluwer Arbitration Blog.

Family lawyers in Nigeria: Myth or reality - Daily Trust

Google International ADR News - Mon, 2018-06-04 19:39

Daily Trust

Family lawyers in Nigeria: Myth or reality
Daily Trust
... chairman of the International Dispute Resolution Institute (IDRI) said disputes are inevitable in human relations, explaining that this raises the need for adjudication, which he said are better handled by persons with skills of Alternative Dispute ...

Newsmakers: Week of June 4 - Law.com

Google International ADR News - Mon, 2018-06-04 14:42

Law.com

Newsmakers: Week of June 4
Law.com
Schutte focuses his practice on general commercial and business litigation, both at the trial and appellate court levels, as well as on arbitration and other forms of alternative dispute resolution. He previously ... He is in the international energy ...

Dispute resolution marked a pivotal point in USC alumna's career - USC News

Google International ADR News - Mon, 2018-06-04 10:06

USC News

Dispute resolution marked a pivotal point in USC alumna's career
USC News
... Gould Graduate and International Programs Award, plans on staying in the United States one more year. After returning to Nigeria, she wants to work with the Cross River State government to raise awareness for the benefits of alternative dispute ...

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Dispute resolution marked a pivotal point in USC alumna's career - USC News

Google International ADR News - Mon, 2018-06-04 10:06

USC News

Dispute resolution marked a pivotal point in USC alumna's career
USC News
... Gould Graduate and International Programs Award, plans on staying in the United States one more year. After returning to Nigeria, she wants to work with the Cross River State government to raise awareness for the benefits of alternative dispute ...

Status update on the adoption of alternative dispute resolutions - Daily Nation

Google International ADR News - Mon, 2018-06-04 08:18

Daily Nation

Status update on the adoption of alternative dispute resolutions
Daily Nation
Your browser does not currently recognize any of the video formats available. Click here to visit our frequently asked questions about HTML5 video. More videos on YouTube. Share. Include playlist. An error occurred while retrieving sharing information.

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