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Legal Issues in
Construction Conference
2015This interactive presentation provides you
with information on the RICS Legal Issues
in Construction Conference plus further
resources including case law.
RICS Legal Issues inConstructionConference 2015
An essential legal update for the constructionindustry
13 October 201509.30-17.30
Ambassadors Bloomsbury Hotel, 12 UpperWoburn place, London, WC1H 0HX
#RICSConstruction6 hours CPD
In association with:
RICS Legal Issues in Construction Conference offers a
timely and essential legal update for practitioners in the
construction sector. Covering case law, best practice
and procedure, this year’s programme will again
combine the expertise of the RICS with that of industry
leaders Pinsent Masons and Keating Chambers.
Designed after an extensive period of consultation with
key stakeholders, previous speakers, past delegates
and experts in the field, this conference has been
tailored by and for RICS members. Attendees will
share a wealth of business critical content, delivered
by a selection of the most respected construction law
specialists in the UK.
This unique opportunity to hear key insights on
avoiding common legal pitfalls should not be missed.
Highlights include:
• Hear an update from the Hon. Mr. Justice
Edwards-Stuart, judge in charge of the
Technology and Construction Court on recent
developments in case law
• Benefit from the combined experience of some of
the UK’s leading legal experts on construction law
• Assess the differences between common law and
civil law systems and better equip yourself to
explore business opportunities outside of the UK.
Key sessions
Liquidated Damages – a review of recent case law
Liquidated damages play an important role in
construction contracts, giving both parties certainty as
to their risks for certain defined events. This session
will review the series of recent cases which has
examined the legal basis for liquidated damages,
including the test as to when liquidated damages are a
penalty, based on the Court of Appeal decision in El
Makdessi v Cavendish Square Holdings, the effect of
contract amendments on liquidated damages and the
use of liquidated damages for changes of key
personnel.
Standard form contracts
This session will review some of the recent case law
which considered standard form contracts such as
JCT and NEC. It will cover the decisions on the NEC
form which deal with order of priorities clauses and
time bar provisions and decisions on the JCT for
which determine the basis for an appropriate
deduction for post completion defects and the final
account process.
Adjudication update
This session will review some of the recent decisions
on adjudication, including the decision in Aspect v
Higgins, the first Supreme Court decision on
adjudication which determined the timing for seeking
recovery in court following an unsatisfactory
adjudicator's decision.
Contractor insolvency
Insolvency is still a key risk in construction and this
session will provide guidance on how to manage
insolvency risks, discussing the use of performance
bonds and parent company guarantees and the issues
that may arise in that respect.
Collaborative contracting
The UK government has made it clear over the last
few years that it regards collaborative contracts as the
route for more efficient and cost effective contracting.
This session will set out the legal basis for such
contracts, discussing alliancing arrangements, how
they are meant to operate the issues that arise in
practice, as well as the use of Integrated project
insurance to deal with project risks.
Construction Act:: Payment notices
The payment mechanism and the certificates required
under the Construction Act have been around for
close to 20 years, yet new issues keep coming up.
This session will look at some recent decisions,
including ISG v Seevic and Galliford Try v Estura, and
identify the practical implications they have and the
issues that need to be considered when administering
payment provisions.
International construction projects
As RICS members are increasingly looking for
opportunities abroad, it is important to recognise that
other legal systems will operate on a different basis.
Even where an international contract such as FIDIC
issued, there are some fundamental differences
between the common law and civil law systems. This
session will compare the common law to the civil law
highlighting the key differences that affect contractual
mechanisms.
Prices
RICS/PLA member rate - £220 + VAT
Non-member rate - £297 + VAT
Groups of 3 or more booking at the same time from
the same company receive a 10% discount. 5 or more
receive a 15% discount. 7 or more receive a 20%
discount. This cannot be used in conjunction with any
other offer from RICS Conferences.
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Book your place online today - rics.org/legalissuesTel: +44 (0)20 7695 1600
"The hugely successful RICS annualconference “Legal Issues inConstruction” will take place on 13thOctober in London. As chairman, Iinvite you to come and enjoy (andlearn) from the excellent team ofsolicitors, barristers and surveyors.They have up to date guidance, hints,& tips."
Tony Bingham, Conference Chair and Arbitrator,
Adjudicator, Mediator and Barrister, 3 Paper Buildings
This year'sprogrammeView the full programme for this year'sconference
RICS Legal Issues inConstructionConference 2015
0900 - 1730
13 October 2015, Ambassador’s Bloomsbury,London WC1H 0HX
0900 Registration and r0900 Registration and refrefreshmentseshments
0930 Chair’0930 Chair’s opening rs opening remarksemarks
Tony Bingham, Arbitrator, Adjudicator, Mediator and
Barrister, 3 Paper Buildings
0945 Opening keynote – construction case law update0945 Opening keynote – construction case law update
frfrom the Tom the Technology and Construction Courtechnology and Construction Court
The Hon. Mr Justice Edwards-Stuart, Judge in
Charge, The Technology and Construction Court
1025 Liquidated damages – a r1025 Liquidated damages – a review of review of recent caseecent case
lawlaw
Simon Hargreaves QC, Keating Chambers
Liquidated damages play an important role in
construction contracts, giving both parties certainty as
to their risks for certain defined events. This session
will review the series of recent cases which has
examined the legal basis for liquidated damages,
including the test as to when liquidated damages are a
penalty, based on the Court of Appeal decision in El
Makdessi v Cavendish Square Holdings, the effect of
contract amendments on liquidated damages and the
use of liquidated damages for changes of key
personnel.
1110 Networking r1110 Networking refrefreshmentseshments
1140 Standar1140 Standard form contractsd form contracts
Shy Jackson, Partner, Pinsent Masons LLP
This session will review some of the recent case law
which considered standard form contracts such as
JCT and NEC. It will cover the decisions on the NEC
form which deal with order of priorities clauses and
time bar provisions and decisions on the JCT for
which determine the basis for an appropriate
deduction for post completion defects and the final
account process.
1215 Adjudication update1215 Adjudication update
James Thompson, Keating Chambers
This session will review some of the recent decisions
on adjudication, including the decision in Aspect v
Higgins, the first Supreme Court decision on
adjudication which determined the timing for seeking
recovery in court following an unsatisfactory
adjudicator's decision.
1300 Networking lunch1300 Networking lunch
1400 Contractor insolvency1400 Contractor insolvency
Simon Hughes QC, Keating Chambers
Insolvency is still a key risk in construction and this
session will provide guidance on how to manage
insolvency risks, discussing the use of performance
bonds and parent company guarantees and the issues
that may arise in that respect.
1445 Collaborative contracting1445 Collaborative contracting
Richard Dartnell, Senior Associate, Construction and
Engineering Team, Pinsent Masons LLP
The UK government has made it clear over the last
few years that it regards collaborative contracts as the
route for more efficient and cost effective contracting.
This session will set out the legal basis for such
contracts, discussing alliancing arrangements, how
they are meant to operate the issues that arise in
practice, as well as the use of Integrated project
insurance to deal with project risks.
1530 Networking r1530 Networking refrefreshmentseshments
1600 Construction Act – payment notices1600 Construction Act – payment notices
Justin Mort QC, Keating Chambers
The payment mechanism and the certificates required
under the Construction Act have been around for
close to 20 years, yet new issues keep coming up.
This session will look at some recent decisions,
including ISG v Seevic and Galliford Try v Estura, and
identify the practical implications they have and the
issues that need to be considered when administering
payment provisions.
1645 Inter1645 International construction prnational construction projectsojects
Mark Roe, Partner and Head of International
Arbitration, Pinsent Masons LLP
As RICS members are increasingly looking for
opportunities abroad, it is important to recognise that
other legal systems will operate on a different basis.
Even where an international contract such as FIDIC
issued, there are some fundamental differences
between the common law and civil law systems. This
session will compare the common law to the civil law
highlighting the key differences that affect contractual
mechanisms such as notices and liquidated damages.
1720 Chairman’1720 Chairman’s closing rs closing remarksemarks
1730 Close of confer1730 Close of conferenceence
Book your place online today -rics.org/legalissues
Pinsent Masons, KeatingChambers
Pinsent Masons has been a preeminent construction
and engineering practice for over 50 years, active in
Europe, the Middle East, Africa and the Far East.
Today Pinsent Masons has 20 offices across Europe,
Asia, the Gulf and Australia as well as various regional
offices within the UK. It is ranked tier 1 in global legal
directories for construction, as well as having been
awarded “Global Construction Law Firm of the Year”
for the last eight years by Who’s Who Legal. Pinsent
Masons have over 400 lawyers dedicated to advising
on construction projects across the project lifecycle.
They advise on building and infrastructure projects in
the UK and internationally, including housing, rail,
road, health care and airport projects.
Please call us on: +44 (0)7418 7000, or email us at:Please call us on: +44 (0)7418 7000, or email us at:
www.pinsentmason.com
Keating Chambers is renowned as one of the leading
barristers’ chambers, with a thriving domestic and
international practice. The barristers at Keating
Chambers specialise in high profile construction,
engineering, energy, infrastructure, international
arbitration, procurement, professional negligence,
shipbuilding & marine engineering and technology.
Currently having 63 barristers strong, including 27
Queen’s Counsel, 30 Juniors and six door tenants/
practising associate members and international
members, the barristers are active in the UK courts
and tribunals including the Technology and
Construction Court, the Court of Appeal, the Supreme
Court and the Privy Council. Their expertise in
alternative dispute resolution covers UK and
international arbitration, adjudication (statutory and
contractual), mediation, dispute review boards and
expert determination.
Keating Chambers’ expertise extends across the
globe. Our barristers have advised and acted in a wide
variety of projects in most countries around the world.
In some cases, members of Chambers have been
admitted to the Bar, in an overseas jurisdiction, in
order to appear in front of the Court there. This
experience brings with it a familiarity of both
procedural and substantive law in numerous
jurisdictions, together with a keen ability to work
closely with lawyers and clients with diverse
backgrounds
Please call us on: +44 (0)20 75442600, or email us at:Please call us on: +44 (0)20 75442600, or email us at:
www.keatingchambers.co.uk
This year's speakers
Once again we selected the very best expertsfrom across the industry for this years LegalIssues in Construction Conference
For the full list of speakers visit rics.org/legalissues
The Hon. Mr Justice Edwards-Stuart, Judge inCharge, The Technology and Construction Court
Sir Antony Edwards-Stuart started practice at the Bar
in 1978 after completion of pupillage, following ten
years as a regular Army officer in the 1st Royal Tank
Regiment.
His practice was based mainly on insurance and
reinsurance, professional negligence, construction and
other technical disputes. He was appointed QC and
Assistant Recorder in 1991.
He was subsequently appointed a Deputy High Court
Judge (QBD & TCC), and was elected Head of
Chambers in 2005. He was appointed a High Court
Judge in 2009. He has been Judge in Charge of the
Technology and Construction Court since September
2013.
Tony Bingham, Arbitrator, Adjudicator, Mediatorand Barrister, 3 Paper Buildings
Tony Bingham is a barrister at the Construction Bar in
Chambers at 3 Paper Buildings, Temple, London. He
has been there 24 years. His career has always been
construction. He is a Fellow of the Chartered Institute
of Building; MRICS; FCInstCES, FCIArb.
Nowadays he spends most of his time deciding
construction disputes. It is a privilege to do so; it gives
insight into our industry.
So too does his Visiting Professorships at University of
Ulster and University of Northumbria. And just for fun
he has written a weekly column in Building for 28
years. That too is a privilege.
Mark Roe, Partner and Head of InternationalArbitration, Pinsent Masons LLP
Mark is a partner and Head of international arbitration,
specializing in construction and engineering matters.
Mark is recognized in the leading independent legal
research guides and by his contemporaries as a
leading lawyer for international construction.
He has had prime responsibility for the conduct of over
40 major disputes many involving US$ 100M +
claims relating to the construction, engineering and
energy industries in the last 30 years, acting nearly
always for main contractors. Mark has particular
experience of dispute resolution in the Middle East,
Asia and Africa. In addition to London he has
conducted international Arbitrations with Seats in
Paris, Geneva, Vienna, Stockholm, Amsterdam and
Amman with a variety of Substantive Laws. He
regularly appears as counsel. He has also conducted
a number of international construction disputes in the
London TCC. Mark also lectures on International
Construction Contracts, in particular FIDIC and
International Arbitration with particular regard to best
practice in the Construction Sector.
Shy Jackson, Partner – Construction Advisory andDisputes, Pinsent Masons LLP
Shy is a Partner in the Construction Advisory and
Disputes Group. He has previously worked in
Singapore and in Israel, where he qualified as a
member of the Israel Bar in 1997. Shy's practice
covers project advice and dispute resolution and he
has advised on UK and international building and
infrastructure projects. Shy is ranked in Chambers &
Partners for his construction expertise, referred to as
"a clear thinker and communicator, and technically
very good." He has experience of litigation, arbitration,
mediation and other forms of ADR.
Shy is a Fellow of the Chartered Institute of Arbitrators,
a Fellow of the Institution of Civil Engineering
Surveyors and an elected member of the Society of
Construction Law Council. He speaks regularly at
industry events, delivers training for the RICS and
lectures on the Construction Law MSc course at
King's College, London. Shy also regularly publishes
construction law related articles in various legal and
industry journals, including the RICS Journal, the JCT
Newsletter and the NEC Newsletter.
Richard Dartnell, Senior Associate – Constructionand Engineering Team, Pinsent Masons LLP
Richard is a Senior Associate in the Construction &
Engineering division of Pinsent Masons' Projects
group. He specialises in providing a wide range of
procurement and risk management advice to
employers and contractors at the outset and
throughout the lifetime of projects.
Richard has a wealth of knowledge and experience
gained on a range of contract documents including
standard form contracts (e.g. JCT, NEC, PPC2000
and FIDIC) and schedules of amendments, bespoke
construction contracts, collateral warranties,
consultants' appointments and security documents
(performance bonds and parent company guarantees).
Richard has also gained a wide amount of alliancing
experience, particularly in the Rail sector.
Richard is also a regularly speaker for the RICS,
including recently speaking on Tendering Strategies
and Appropriate Contract Selection.
Simon Hargreaves QC, Keating Chambers
Simon Hargreaves QC was called to the Bar in 1991,
served on the Attorney-General’s Panel of Treasury
Counsel from 2002 to 2008 and took Silk in 2009. He
has spent his entire career in Keating Chambers
specialising in disputes arising from construction,
engineering, IT systems, transport, energy contracts
and fires. He specialises in all forums including
litigation, arbitration, adjudication and ADR as well as
relief concerning pre-action disclosure, summary
judgment, interim payment, strike out, security for
costs, arbitration applications, injunctions and bond
applications.
Simon has been involved in a number of high profile
cases across the different areas of his practice,
principally construction, engineering, fires and IT. In
recent years he has been involved in claims arising
from: Crossrail; several PFI contracts; desalination
plant in Qatar; ferry terminal in Jordan; gold mining in
Burkina Faso; flooding in the Greenwich Millennium
Village; the Magna Park fire; the London Underground
transmission and radio upgrade project; a claim
concerning turbine design for a nuclear power station;
the Chancery Lane Tube derailment in January 2003;
the Gerrard’s Cross tunnel collapse; the London
Transport Upgrade (including Oystercard); claims
arising on Wembley Stadium; bond and defects claims
concerning the design and manufacture of a new
commuter train; tunnelling disputes; North Sea and
nuclear decontamination.
Simon has considerable experience of professional
negligence claims and related insurance claims arising
from construction, engineering, transport, IT systems,
energy contracts and fires, including claims for and
against civil and structural engineers, geotechnical
engineers, mechanical and electrical engineers,
architects, asbestos professionals and contractors,
project managers, quantity surveyors, IT consultants
and costs consultants.
Simon Hughes QC, Keating Chambers
Simon Hughes QC specialises in major construction,
engineering, shipbuilding and other off-shore and
energy related disputes and is a leading senior counsel
in these areas. Simon has been involved in disputes
involving most standard form contracts used for
substantial projects including the JCT standard forms,
ICE 5th and 6th editions, the NEC, IChemE, FIDIC
(Green, Red, Yellow and Silver Books), and derivative
standard form agreements. He has particular
experience of FIDIC forms and the NEC. In terms of
types of dispute, Simon has particular experience of
international power-plant disputes, major infrastructure
projects and shipbuilding work, particularly in the Far
East, and in disputes where the governing law is not
English law. He has represented and advised clients
on disputes in Hong Kong, Singapore, Korea,
Australia, Dubai and other parts of the UAE, various
islands within the Caribbean and New Zealand. He is a
member of the Bar in Trinidad & Tobago and was
called to the Bar in New Zealand for a specific trial on
behalf of Rolls-Royce. He has appeared numerous
times in the Court of Appeal in England, and in
Trinidad, and was recently successful on behalf of a
client in the Privy Council. He is well-known as a Court
advocate, as well as being a popular choice for
arbitration and adjudication work.
Having been involved in a number of leading cases
throughout its development, Simon has a lot of
experience of UK adjudication. He is responsible for
the chapter on Adjudication in Keating on
Construction Contracts and has lectured on UK
adjudication in the UK, Hong Kong, Singapore and
New Zealand. Simon also has a substantial interest in
FIDIC and is the author (with Jeremy Glover) of
Understanding the FODIC Red Book (now in 2nd ed.).
Simon was formerly an editor on Chitty on Contracts.
Justin Mort, QC
Justin Mort QC specialises in disputes arising out of
construction, energy, infrastructure and process
engineering projects.
He has recently worked on claims arising from a
variety of energy projects including the construction of
a wind farm in Scotland (delay claim), Pembroke
power station (termination and final account dispute), a
gas power station in Singapore, a hydro-electric dam
in Malaysia (unforeseen grounds conditions claim) and
various waste to energy plants in the UK.
Justin also specialises in injunctive proceedings. He
has recently acted for a party seeking an injunction to
prevent a firm of solicitors from acting against their
client, a mandatory injunction for return of takeover
packages removed to Italy (Alstom v SOMI), an anti-
suit injunction in the Commercial Court (U&M v KCM)
and an injunction in the Companies’ Court to prevent
the presentation of a winding-up petition. He edited
the section on injunctions in Keating on Construction
Contracts.
Justin is a renowned authority on the Housing Grants
Construction and Regeneration Act 1996. In 2013 he
expanded the application of the Act by arguing that a
collateral warranty was a “construction contract”
(Parkwood v Laing O’Rourke). In September 2014 he
successfully argued that an express contractual right
to adjudicate did not fall within the operation of the
Contracts (Rights of Third Parties) Act 1999 (Hurley
Palmer Flatt Ltd v Barclays Bank plc).
Justin Mort has an MSc from King’s College London in
Construction Law and Arbitration and occasionally
lectures at King’s. He has written articles and given
seminars on subjects relevant to his practice, including
partnering agreements and adjudication enforcement.
He has acted as an adjudicator and is on the TECBAR
panel of adjudicators.
James Thompson, QC
James Thompson was called to the Bar in 2005 and is
a specialist in the areas of construction and
engineering, energy, technology, infrastructure and
related commercial disputes. Over recent years he has
been instructed in a number of large-scale
proceedings, both as a junior and on his own, and is
recommended in the directories as “a busy junior
working on some major domestic and international
construction disputes”.
He is regularly instructed in cases involving complex
factual, legal and expert issues in the High Court, as
well as in international arbitration. He is also has
extensive experience of acting in adjudication
proceedings, both during the adjudication process
itself and at subsequent enforcement hearings. James
is often instructed to represent clients at mediation,
and has had considerable success in negotiating
settlements through this process.
James is a particularly popular choice for instructions
in the Middle East and is a committee member of the
Omani British Lawyers Association.
His recent instructions include: acting for the main
contractor in ICC arbitration arising out of the
construction of a power plant in the Caribbean; acting
as sole counsel in TCC proceedings relating to the
failure of electrical components at commercial
premises; acting as junior counsel on behalf of the
contractor in high-profile proceedings in the TCC
concerning the construction of a busway; acting as
junior counsel in proceedings before the Dubai World
Tribunal concerning a construction dispute on the
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Palm Jumeirah.
Further speakers include:
• Opening keynote: The Hon. Mr Justice Edwards-
Stuart, Judge in Charge, The Technology and
Construction Court
"We are delighted to note that thisyear’s keynote address will bedelivered by Judge in Charge of theTechnology and Construction Court,Hon. Mr Justice Edwards-Stuart.Construction and contractualdemands run hand in hand...let’s keepup to date. See you there"
Tony Bingham, Conference Chair and Arbitrator,
Adjudicator, Mediator and Barrister, 3 Paper Buildings
Stay connectedTwitter, LinkedIn and the RICS LegalIssues in Construction Conference
Networking beyond RICSLegal issues Conference
Follow and take part in discussions before,during and after this year's conference.
Twitter & LinkedInCatch up with industry news and reports via the RICSRICS
LinkedIn GrLinkedIn Groupoup
And take part in discussions before, during and after
this year's conference by using our twitter hashtag
#RICSConstruction#RICSConstruction
RICS resources
Case law plays an important part in most surveying
specialisations.
With commentary by expert authors, isurv has over
4,000 cases reviewed by experts. This channel
provides a case overview, the outcome and advice on
the actions you can take to ensure compliance.
Case law covered includes:
• Commercial case law
• Construction case law
• Expert witness case law
• Dilapidations case law
• Party wall case law.
isurv Case Law example
AMEC Capital PrAMEC Capital Projects Ltd v Whitefriars City Estatesojects Ltd v Whitefriars City Estates
LtdLtd
(2004) 96 Con LR 142 and [2005] BLR 1 CA(2004) 96 Con LR 142 and [2005] BLR 1 CA
Construction contracts - adjudication - appointment ofConstruction contracts - adjudication - appointment of
adjudicator - bias - natural justice - radjudicator - bias - natural justice - re-determination -e-determination -
JCT standarJCT standard form with contractor's design - whetherd form with contractor's design - whether
corrcorrect to seek appointment of alterect to seek appointment of alternative adjudicatornative adjudicator
- housing grants, Construction and Regeneration Act- housing grants, Construction and Regeneration Act
1996 - Scheme for Construction Contracts (England1996 - Scheme for Construction Contracts (England
and Wand Wales) Regulations 1998, clause 2ales) Regulations 1998, clause 2
The responding party challenged the decision of the
adjudicator on the basis of apparent bias. The test
applied by the Court of Appeal was whether a fair-
minded and informed observer, having considered all
the circumstances that have a bearing on the
suggestion that the decision-maker was biased, would
conclude that there was a real possibility that he was
biased: Porter v Magill at paragraph 103.
The adjudicator in this case was initially appointed and
made his decision in favour of the referring party.
However, that decision was found to be unenforceable
because the adjudicator had not been properly
appointed.
The same adjudicator was subsequently reappointed
in a second adjudication concerning the same
matters.
The judge at first instance held that there was a real
possibility of bias in the present case by reason of the
combined effect of the facts that:
(a) on AMEC's case, the issues were the same in the
two adjudications;
(b) on the basis of the adjudicator's findings, the
issues that he had to decide were the same in both
adjudications;
(c) the legal advice obtained in the first adjudication
may have been 'carried forward' into the second
adjudication and influenced the second decision;
(d) the adjudicator did not give the parties an
opportunity to comment on the legal advice obtained
on the jurisdiction issue in the second adjudication;
and
(e) the adjudicator had a private conversation with the
solicitor representing the referring party, which was
limited to an explanation of why he was being re-
appointed.
The Court of Appeal overturned the decision of the
first instance judge on the following grounds:
(a), (b) The mere fact that the tribunal has previously
decided the issue is not of itself sufficient to justify a
conclusion of apparent bias. Something more is
required. The vice that the law must guard against is
that the tribunal may approach the rehearing with a
closed mind.
(c) This was a new point that had not previously been
raised and which was too late to raise now.
(d) Natural justice requires no more than that a party
should have an effective opportunity to make
representations before a decision is made. In the
court's view, Whitefriars had such an opportunity in
the present case and took advantage of it. In any
event, the common law right to prior notice and an
effective opportunity to make representations is to
protect parties from the risk of decisions being
reached unfairly. But it is only directed at decisions
that can affect parties' rights. In this case the legal
advice related to the adjudicator's own jurisdiction,
which was not binding on the parties.
(e) Conversations between one party and the tribunal
in the absence of the other party should be avoided.
Communications should ordinarily be in writing with
copies to all parties. But the Court of Appeal saw
nothing in the circumstances of this conversation,
which arose out of an innocuous telephone call to the
adjudicator's office, which would lead the fair-minded
and informed observer to conclude that what was said
would give rise to a real possibility of bias
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