International Journal of Arab Arbiration

Volume 2 - No. (3) 2010

 
Table of Contents

Introductory note

ARTICLES

  • The Role of the Egyptian Judiciary in Securing the Efficiency of Arbitration Agreements by Samiha Al Kalyoubi
  • The New Laws on Investment, Commerce, Corporations and Arbitration and Their Positive Effect on Investments in Syria - by Mouhamed Mansour
  • The Procedural Steps to Enforce Domestic Arbitral Awards in Morocco - by Riad Fakhry 
  • Presentation of the New Arbitration and Mediation Rules Franco-Arab Chamber of Commerce - by Thomas Clay
  • Corruption in International Commercial and Investment Arbitration: Recent Trends and Prospects for Arab Countries - by Raλd Mounir Fathallah

ARBITRATION-RELATED DECISIONS issued by STATE COURTS IN THE ARAB COUNTRIES

Bahraini Case Law

  • No.1– Court of Cassation – Challenge No. 26 of 2002 – October 7, 2002 – Domestic Arbitration – Construction Contract – Arbitration Clause Stipulated in theConstruction Contract – Arbitration Clause of Consensual Nature and Not Related to Public Policy – Waiver of the Arbitration Clause Possible Both Implicitly and Explicitly – Lawsuit Filed by a Party before the Court of First Instance – Claimant's Plea of Inadmissibility of the Case Based on theExistence of the Arbitration Clause – Rejection of the Plea of Inadmissibility Based on the Existence of the Arbitration Clause by the First Instance Court and Court of Appeals (Yes) – Attendance by Claimant of Court Hearings without Raising this Plea – Submission by Claimant of Defenses and Documents – Actions Considered as a Waiver of the Arbitration Clause – Recourse to Cassation – Appealed Decision Upheld
  • No.2– Court of Cassation – Challenge No. 4 of 2007 – July 1, 2007 – Domestic Arbitration – A contract of Joint Venture – Dispute over the Transfer of the Ownership of a Pharmacy Business to Partners According to Their Shares in the Capital – Arbitration Clause Stipulated in the Contract – Referral by Respondent of the Dispute to Court – Amendment by Respondent of Its Claim – Request Filed by Respondent with the Court of First Instance to Appoint Either an Arbitrator or an Arbitral Tribunal to Settle the Dispute – Appointment of Three Arbitrators – Setting Aside by the Court of Appeals of the First Instance's Judgment Because Resorting to State Courts Implies a Waiver of the Right to Invoke the Arbitration Clause – Court of Appeals' Remittal of the Dispute to the Court of First Instance to Decide on the Substantive Issues – Cassation for Violation of Bahraini Law and for Ruling Ultra Petita – Partial Annulment of the Appealed Decision Re Remittal of the Dispute to the Court of First Instance

Egyptian Case Law

  • No.1– Court of Cassation – Commercial Circuit – No. 2414 / 72 - March 22, 2005 –Arbitral Award rendered by the Central Housing Cooperative Union – Rules on Compulsory Arbitration – Unconstitutionality of Some of These Rules –Public Policy – Court May Raise Such Violation upon Its Own Motion – Nullity of the Arbitral Award (Yes)
  • No.2– Court of Cassation – Commercial Circuit – No. 6383 /64– January 23, 2007 –– Arbitration Agreement – Lawsuit Filed by a Party with the Court of First Instance – Plea of Inadmissibility of the Case Due to Prior Agreement on Arbitration – Rejection of the Plea by the Court of First Instance – Lack of Authority of the Judge to Examine His Own Ruling - Public Policy Principle – Appeal – Two Contradictory Rulings Rendered by the Court of Appeals – One Ruling Rejecting Arbitration and the Second One Recognizing Arbitration – Recourse to Cassation – Re-examination by the Court of Appeals of its Own Ruling – Breach of the Above Public Policy Principle – Cassation of the Appealed Decision - Remittal of the Case to the Alexandria Court of First Instance
  • No.3– Cairo Court of Appeals – Eighth Commercial Circuit - Case No. 2/127 – May20, 2009 ––Domestic Arbitration – Construction Contract – Arbitration Clause Stipulated in the Contract – Nature of Arbitration – Non-Commercial and Non- International Arbitration – Jurisdiction of the Court of Second Degree over the Action for Annulment (Articles 2 and 3 of the Egyptian Arbitration Law) –Action for Annulment of the Arbitral Award for Non-Inclusion in the Arbitration Agreement of Certain Matters Raised in the Framework of the Dispute and for Extension of the Contract's Term Contrary to the Will of the Parties – Action Rejected (Yes). Commentary by Fathi Wali
  • No.4– Cairo Court of Appeals – Seventh Commercial Circuit – Case No. 119 /124–February 2, 2010 –– Domestic Institutional Arbitration – Arbitration before the Cairo Regional Center for International Commercial Arbitration (CRCICA) –Application of the UNCITRAL Arbitration Rules Adopted by the CRCICA – Bylaws of a Company Including an Arbitration Clause – Scope of the Arbitration Clause – Both Founding Partners and the Shareholders Bound by the Arbitration Clause – Arbitral Award – Action for Annulment before the Cairo Court of Appeals – Claim Regarding Inarbitrability of the Dispute for Violation of Public Policy – Arbitral Tribunal's Jurisdiction to Examine the Arbitrability of the Dispute – Company's Commercial Purposes Unrelated to the Organization of the State – Public Policy Not at Stake – Rejection of the Claim of Inarbitrability – Claim of Nullity of the Deliberation Process Based on the Presence of the Arbitral Tribunal's Secretary during the Hearing When the Arbitral Award Was Rendered – Claim Rejected – Participation (or not) of the Secretary of the Arbitral Tribunal in the Deliberation with No Effect on the Issuance of the Arbitral Award – Lack of Motivation in the Arbitral Award –Cause for Annulment (No) – Annulment Claim Rejected

Jordanian Case Law

  • No.1– Amman Court of Appeals – No. 113/2008 – November 22, 2009 –– Judicial Warning to Appoint an Arbitrator – Appointment of the Arbitrator According to a Provision in the Allegedly Binding Agreement – Unsigned Photocopy of the Agreement – Failure to Provide the Original Version of the Agreement – Arbitration Agreement Considered Unsigned and Unwritten – Arbitration Agreement Inexistent – Request to Appoint an Arbitrator Denied
  • No.2– Amman Court of Appeals – No. 34/2010 – March 22, 2010 –– Domestic Arbitration – Construction Contract – Dispute Related to a Project – Institutional Arbitration (International Chamber of Commerce) – Jordanian Law Applicable to the Arbitration – Article 37 of the Jordanian Arbitration Law – Possible Extension of the Time Limit for Six Additional Months –Issuance of the Award within Twelve Months in the Absence of AnyAgreement – Extension of the Arbitration Time Limit Eighteen Times –Unjustified Extension of Time – Scope of the Arbitral Tribunal's Mission toSettle the Dispute Expeditiously Exceeded – Termination of the ArbitrationProceedings. Commentary by Georges Hazboun

Kuwaiti Case Law

  • No.1– Court of Cassation – Commercial Challenge No. 531 of 2002 – February 8,2003 –– Joint Venture – Arbitration Clause in the Joint Venture Contract –Parties' Freedom to Agree on the Means to Settle Their Disputes – Arbitrationin Law and Arbitration in Equity (Ex Aequo et Bono) – Possible Recourse to Both Arbitrations in One Clause – Arbitrators Contractually Entrusted with the Mission of Arbitration in Equity (Amiable Composition)– Action for Annulment Limited to the Restrictive Grounds Listed in Article 186 of the Code of Civil Procedure – Grounds for Annulment Different from the Grounds for an Appeal against Judicial Rulings – Challenge Rejected (Yes)
  • No.2– Court of Cassation – Civil Circuit – Challenge No. 511 – February 13, 2006 ––Arbitration Proceedings – Plea of Nullity of the Contract Containing an Arbitration Clause – Plea Considered a Preliminary Issue Falling Outside the Jurisdiction of the Arbitral Tribunal (Article 180 of the Kuwaiti Code of Civil Procedure) – Arbitrator's Lack of Jurisdiction to Rule on the Nullity or Validity of the Arbitration Agreement – Jurisdiction of State Courts with Respect to This Plea – Decision of the Court of Appeals Annulling the Arbitral Award –Decision Upheld by the Court of Cassation. Commentary by Mohamed Al Tuwayjri

Lebanese Case Law

No.1– Mount Lebanon Court of First Instance – 1stChamber – No. 49/2009 –November 4, 2009 – Investment Contract – Arbitration Clause – Arbitral Award Rendered to Settle a First Dispute – Further Dispute Arising within the Scope of the Same Arbitration Clause – Appointment of the Same Arbitrator Who Rendered the Previous Award – Articles 120/5 and 770 of the Code of Civil Procedure Provide the Basis for a Possible Challenge of the Arbitrator Who Examined the Case as a Judge Expert or Arbitrator – Challenge against the Appointment of the Same Arbitrator Who Had Previously Settled the Case between the Same Parties – Challenge Rejected (Yes) – Arbitrator's Authority to Hear Any Claim Arising between the Same Parties to the ArbitrationClause

No.2– Mount Lebanon President of the First Instance – 1stChamber – No. 50/2009 –November 11, 2009 –– Investment Contract with an Arbitration Clause –Dispute over the Renewal of the Contract – Dispute Referred to Arbitration – Failure by Respondent to Appoint an Arbitrator – Request to Appoint an Arbitrator Submitted to the Court of First Instance – Challenge by Respondent of the Validity of the Arbitration Clause for Not Being Clearly Mentioned in the Main Contract and for Not Specifying the Method to Appoint an Arbitrator – Challenge Rejected (Yes) – Arbitrator Appointed (Yes)

No.3– North Lebanon Civil Court of Appeals – 5th Chamber- No. 95/2010 – January 28, 2010 –– Arbitral Award – Request for Leave for Enforcement – Action for Annulment of the Award – Grounds for Annulment – Arbitral Tribunal Irregularly Constituted (No) –Allegation To Be Raised First before the Arbitral Tribunal – Violation of the Right of Defense (No) – No Sufficient Evidence Submitted in Support of the Claim – Violation of the Arbitrators' Mission (No) –Arbitral Award Containing All Essential Elements (Yes) – Compliance with Public Policy (Yes) – Action for Annulment Rejected (Yes). Commentary byGhaleb Mahmassani

No.4– Mount Lebanon Court of First Instance – 1stChamber – No. 14/2010 – April 13, 2010 –– Multi-Party Arbitration Involving Several Shareholders and the Company – One Shareholder Claimant against the Company and the Rest of the Shareholders – Arbitration Clause Inserted in the Company's By-laws Providing for the Appointment of One Arbitrator for Each Party – Shareholders (Respondents) Appointing More than One Arbitrator – Irregularity Relating to the Number of Arbitrators – Claimant's Request to the Court of First Instance to Appoint One Arbitrator for all the Respondents – Each Shareholder and the Company Have a Separate Legal Status Justifying Their Distinct Choice of Arbitrators – Arbitration Clause Not Dealing with the Appointment of Arbitrators in Multi-Party Proceedings – Arbitration Clause Insufficient (Yes) –Parties' Freedom to Agree Anew on an Arbitration Clause or to Submit Their Dispute to Court Litigation – Request for Appointment of an Arbitrator Rejected (Yes). Commentary by Marwan Sakr

Libyan Case Law
 
  • Supreme Court – Civil Cassation – No.350/45 – May 3, 2003 –– Arbitral Award –Action for Annulment before the Court of Appeals – Grounds for Annulment – Violation of Article 744 of the Code of Procedure Requiring an Odd Number of Arbitrators (Yes) – Lack of Motivation of the Award (Yes) – Arbitral Award Annulled (Yes) – Recourse to Cassation – Incorrect Explanation and Interpretation of the Law by the Court of Appeals (No) – Appealed Decision Upheld by the Supreme Court.

Omani Case Law

  • Court of First Instance – No. 701/89 – February 19, 1991 –– Construction Contract – Arbitration Clause – Dispute Referred to the Court of First Instance – Plea by Defendant Based on the Inadmissibility of the Case Due to the Existence of then Arbitration Clause in the Main Construction Contract – Reference in the Subcontracting Contract to the Conditions of the Main Construction Contract –Reference Limited to Substantive Conditions without Formal Conditions Unless Otherwise Provided by the Subcontract – No Explicit Reference in the Subcontracting Contract to the Arbitration Clause in the Main Contract – Possible Waiver of the Benefit of the Arbitration Clause (Yes) – Public Policy Not Concerned - Extension of the Arbitration Clause (No)

Saudi Arabian Case Law

  • Court of Grievance – Commercial Circuit - Ruling No. […] of […] – Case No. […] of […]–– Domestic Arbitration – Challenge of the Arbitrator by Defendant – Arbitrator and Claimant Members of the Same Board of Directors – Arbitrator May Be Challenged on the Same Grounds as a Judge (Article 12 of the Saudi Rules of Arbitration) Absence of Grounds for Challenge According to Islamic Law (Shari'a) – Impartiality of the Arbitrator (Yes) – Request to Challenge the Arbitrator Rejected

Sudanese Case Law

  • No.1– Supreme Court – Civil Circuit – Decision No. SC/CC/1705/2005 – July 26, 2007 – –Request to Review the Case Based on the Existence of an ArbitrationClause and on the Violation of Islamic Law (Shari'a) – Respondent's Right to Invoke the Arbitration Clause During the First Hearing – Interpretation by the Court of the Terms "First Hearing” – First Hearing Not Equal to First Appearance – Succession of Hearings Shall Be Taken into Account (Yes) –Violation of Substantive or Procedural Laws (No) Violation of Islamic Law (Shari'a) (No) – Claimant's Allegations Rejected (Yes)
  • No.2– Supreme Court – Civil Circuit – Decision No. SC/CC/1188/2006 – May 27, 2008 ––Arbitration Clause – Court of Appeals Decision Striking Off the Case due to the Existence of an Arbitration Clause (Article 9 of the 2005 Sudanese Arbitration Act) – Request to Review the Court of Appeals' Decision for Breach of Islamic Law (Shari'a) – Violation of Shari'a Not Characterized – Lack of Jurisdiction by the Supreme Court to Hear the Dispute (Article 9 of the 2005 Sudanese Arbitration Act) – Radiation of the Review Request –Decision of the Court of Appeals Upheld

Syrian Case Law

  • No.1– Court of Cassation – First Civil Chamber – No. 741/2007 –– Dispute over the Nature of the Agreement Subject to Arbitration – Brokerage Contract (No) –Cooperation Agreement (Yes) – Compliance with Public Policy (Yes) – Arbitral Award – Request to Grant Leave for Enforcement – Request Granted by the Court of First Instance – Appeal – Leave for Enforcement Confirmed by the Court of Appeals – Recourse to Cassation – Violation of Public Policy by the Arbitration Clause or the Arbitral Award (No) –Discretionary Power of the Court of Merits to Construe the Contract (Yes) – Cassation Rejected.Commentary by Fouad Dib
  • No.2– Damascus Court of Appeals – First Civil Chamber – No. 896 – December 27, 2009 –– Partnership Agreement Containing an Arbitration Clause – Dispute Relating to the Headquarters and Assets of the Company – Claimant's Resort to Criminal Courts Prior to Commencing an Arbitration – Implicit Waiver of Arbitration (Yes) – Subsequent Recourse to Arbitration – Arbitral Award Rendered – Request to Grant Leave for Enforcement Filed by Claimant with the Court of Appeals – Jurisdiction of the Arbitrator Limited to Pecuniary Matters – Arbitrator Exceeding the Scope of the Arbitration Clause (Yes) – Refusal to Grant Leave for Enforcement to the Arbitral Award

Tunisian Case Law

  • No.1– Court of Appeals of Tunis – Case No. 44 – May 8, 2001 –– Arbitral Award – Appeal of the Award for Violation by the Arbitrators of Their Mission by Examining a Set Off That Falls outside the Scope of the Arbitration Clause – Compliance by the Arbitral Tribunal with the Terms of the Parties' Contract (Yes) – Recourse Rejected (Yes)
  • No.2– Court of Appeals of Tunis – Case No. 108 – August 16, 2001 –– Dispute over an Agreement Containing an Arbitration Clause – Dispute Referred to Three Arbitrators – Challenge by Claimant of the Three Arbitrators – Stay of the Arbitral Proceedings due to the Challenge (No) – Rendering of the Arbitral Award (Yes) –Recourse to Annulment by Claimant before the Court of Appeals – Request by Claimant to Appoint an Arbitrator on Behalf of Respondent (Article 56 of the Arbitration Law) for the Settlement of the Dispute Anew – Request Rejected (Yes) – Reasons of Rejection – Lack of Interest Following the Rendering of the Arbitral Award – Binding Effect of the Arbitral Award until the Rendering of the Annulment Decision. Commentary by Lotfi Chedli
  • No.3– Court of Cassation – Third Civil Circuit – Case No. 31909 – February 18,2010 ––  Dispute Referred to State Courts despite the Inclusion of an Arbitration Clause – Arbitration Clause Not Invoked before the Court Prior to Reviewing the Merits – Arbitration Clause Invoked in Appeal – Plea of Non-Jurisdiction of the Court Based on the Existence of an Arbitration Clause –Plea Unrelated to Public Policy – Plea May Not Be Raised by the Court upon its Own Motion – Failure by the Parties to Invoke the Arbitration Clause prior to the Review of the Merits – Waiver of the Right To Go to Arbitration (Yes) – Dismissal of the Jurisdictional Plea by the Court of Appeals – Recourse to Cassation – Decision of the Court of Appeals Upheld (Yes)

U.A.E Case Law

  • No.1– Court of Cassation – Abu Dhabi – Second Civil Circuit – No. 732/24 – February 26, 2005 – Arbitration Clause Stipulated in a Contract – Dispute over the Contract – Claim Filed with the Court of First Instance – Claimant's Right to Submit Interlocutory Claims for Amendment or Rectification of the Original Claim – Request to Refer the Case to Arbitration – Request Amending the Subject Matter of the Initial Claim – Validity of Such Request Made prior to the Closure of the Hearings – First Instance Court Referring the Dispute to Arbitration – Decision Confirmed by the Court of Appeals and by the Court of Cassation – Parties' Disagreement over the Appointment of Arbitrators – Competent Court to Examine the Dispute – Court with Initial Jurisdiction to Examine the Dispute (Article 204 of the Code of Civil Procedure) –Appointment Confirmed
  • No.2– Court of Cassation – Dubai – No. 240/2007 – January 13, 2008 –– Arbitral Award – Ambiguity – Request for Interpretation Filed with the Court of Appeals – State Courts' Jurisdiction for Interpretation Limited to its Own Rulings – Request Rejected by the Court of Appeals – Action in Cassation –Possible Remittal of the Award to the Arbitrators for Interpretation (Articles 138 and 214 of the Code of Civil Procedure) (Yes) – Decision Denying State Courts' Jurisdiction for Interpretation Upheld
  • No.3– Court of Cassation – Dubai – No. 146/2008 – November 9, 2008 –– Arbitral Award – Request for Annulment – Grounds for Annulment Enumerated in an Exhaustive Manner in the Law (Article 216 of the Code of Civil Procedure) – Violation of Public Policy Excluded from the List of Restrictive GroundsAccording to Article 216 – Public Policy to Be Always Taken into Account –Public Policy Principles Fundamental to the State –Legally forbidden Interest("Riba”) – Violation of Domestic Public Policy (Yes) – Violation of Islamic Law (Shari'a) (Yes) – Annulment of the Arbitral Award (Yes)

Yemeni Case Law

  • No.1– Supreme Court – Commercial circuit – No. 33922 – April 7, 2009 –– Domestic Arbitration – Dispute over a Lease Agreement – Arbitral Award – Leave for Enforcement Granted – Appeal against the Enforcement Decision – Lack of Jurisdiction by Judicial Courts over Claims Previously Raised before the Arbitrator – New Claims Only Possible before the Competent Court of First Instance Once the Arbitral Award Is Rendered – Appeal Rejected – Leave for Enforcement Upheld
  • No.2– Supreme Court of Sana'a – Commercial circuit – No. 35344 – November 22,2009 –– Dispute Resulting from a Drilling Contract – Arbitral Award – Violation of the Right of Defense and Due Process by the Arbitrator Regarding Listening to Witnesses Presented by the Respondent in Arbitration – Violation of a Fundamental Procedural Principle – Violation of Public Policy (Yes) – Annulment of the Arbitral Award – Cassation – Reasons for Cassation Invoked Not Included in the Exhaustive Grounds Listed in Article 292 of the Code of Procedure – Cassation Rejected – Annulment Upheld

ARBITRAL AWARDS AD HOC OR RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS

I – AD HOC AWARDS APPLYING SHARI'A

  • No.1– Arbitral Award dated July 31, 2005 –– Ad hoc Arbitration – Arbitral Tribunal Constituted of Three Egyptian Arbitrators – Islamic Law (Shari'a) – Mudaraba Contract (Profit-Sharing Contract) with Arbitration Clause – Recourse to Arbitration Permitted According to Shari'a in Mudaraba Contracts – Prohibition to Share the Profits before Full Performance of the Mudaraba Contract – Capital Owner (Rab-Al-Mal) Unauthorized to Obtain a Lump Sum Amount or a Proportion of the Capital – Loss To Be Borne Only by the Capital Owner – The Other Party (Mudarib) Providing Expertise and Management Must Not Bear Any Loss Except When Caused by His Negligence – Arbitral Tribunal's Obligation to Examine and Annul Contractual Terms Violating Shari'a – Validity of the Overall Mudaraba Contract. Commentary by Ibrahim Jannoun
  • No.2– Arbitral Award dated November 11, 2007 –– Ad hoc Arbitration – Islamic Law (Shari'a) – Murabaha Contracts (Purchase Contracts for a Determined Price and Agreed Profit) – Claimant's Request for Annulment of the Contracts – Grounds for Annulment – Seller Not Owning the Goods before the Conclusion of the Murabaha Contracts – Seller Determined Alone His Profits – Seller Retaining Ownership of the Goods until Full Settlement of the Price – Irrelevance of These Grounds for Annulment of the Contracts – Request for Annulment Rejected – Validity of the Contracts

II – INSTITUTIONAL ARBITRAL AWARDS

1 - Awards from the International Court of Arbitration (ICC)

  • May 30, 2006, No 12580 –– Construction Project – Pre-Bid Agreement (PBA) By and between Two Indian Companies (A1 and A2), an Emirati Company (B1) and a Lebanese Company (B2) – Dispute Arising from the PBA Including an Arbitration Clause – UAE Law Applicable – Arbitration between A1 (India – Claimant) against B1 (LLC, UAE, co-Defendant) and B2 (SAL, Lebanon, Co-Defendant) for the Loss of Profit due to the Fact That the Respondents (B1 and B2) Breached Their Obligation to Entrust A1 with the Civil and Structural Works – Jurisdictional Objections Raised by Respondents on the Basis of the Lack of a Written Agreement on Arbitration (Article 203 (2) of the UAE Code of Civil Procedure) –Respondent's Request that A2 Join the Arbitration – Partial Award Recognizing the Arbitral Tribunal's Jurisdiction over the Dispute and Claimant (A1)'s Ability to Sue Alone Respondents without A2–A1 and A2 Merging into One Single Legal Entity upon Signing the PBA – Claimant (A1)'s Right to Start Arbitration – A1/A2's Joint Liability and Obligation for the Misexecution of the Project – Validity of the PBA under UAE Law – Partial Award Upheld by the Arbitral Tribunal – Breach by Claimant of the PBA's Clause Relating to Guarantees – Breach by Respondents of the PBA by Failing to Entrust the Claimant with the Civil and Structural Works – Damages To Be Equally Borne by Claimant on One Side and Respondents on theOther (Yes). Commentary by Khaled Al Shalakani

2- Awards from the Cairo Regional Centre for International Commercial Arbitration (CRCICA)

  • March 3, 2008, No 536/2007 –– Administrative Contract between an Administrative Body and a Company Regarding Cleaning Services – Arbitration Clause – Application of the Egyptian Code of Procedure – Unforeseen Increase in the Exchange Rate – Economic Imbalance in the Contract – Theory of Unexpected Circumstances – Respondent's Urgent Request for Compensation – Arbitral Tribunal's Jurisdiction to Consider the Urgent Request of Compensation – Arbitral Award – Damages To Be Borne Equally by Claimant and Respondent in Application of Articles 184 and 186 of the Egyptian Code of Procedure. Commentary by Ghassan Rabah

ARBITRATION NEWS

  1. Update on new/recent laws, cases and arbitration centers
  2. Conferences, trainings and seminars
  3. Miscellaneous/News about law firms and other institutions in the Arab countries

TEXTS/LAWS/REPORTS/DOCUMENTS

  • Arbitration and Mediation Rules of the Franco-Arab Chamber of Commerce
 
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