Legal Lights, issue 22

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FEATURING Article

Sweeping reform for EU Data Protection

UNDERSTANDING ISLAMIC BANKING P.6

Author Profile Daniel Greenberg

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UNDERSTANDING THE SOURCES OF LAW THAT GOVERNS ISLAMIC BANKING

18

STROUD’S JUDICIAL DICTIONARY OF WORDS AND PHRASES

GOFF & JONES: THE LAW OF UNJUST ENRICHMENT

11 22 REUTERS/Navesh Chitrakar

THE FINAL WORD ON THE CONFLICT OF LAWS

10 AUTHOR PROFILE Daniel Greenberg 12 ARTICLE Sweeping Reform For EU Data Protection

DICEY, MORRIS & COLLINS ON THE CONFLICT OF LAWS

22 ARTICLE Hydraulic Fracturing and the Shale Gas boom

Lord Collins of Mapesbury and a team of specialist editors

“ … Dicey, Morris and Collins remains the essential reference book for every practitioner and academic with an interest in the conflict of laws. … Dicey remains a formidable book and continues to provide an essential step in any consideration of the conflict of laws ” – British Yearbook of International Law £395 9780414024533 Published October 2012

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HYDRAULIC FRACTURING AND THE SHALE GAS BOOM

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26 BOOKSHOP What’s new in our Book Shop 30 AUTHOR PROFILE Professor John Birds 34 LEGAL BREAK

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WELCOME TO ISSUE 22 OF LEGAL LIGHTS!

WHERE WERE WE IN 2012

In the first issue of 2013 you’ll find even more content than usual. There are insights into the latest news and trends, author profiles, product reviews and a Legal Break to take your mind off a hard day’s work.

30 September - 5 October International Bar Association, Dublin

SEPTEMBER

11 - 16 September IFA International Fiscal Association in Boston

We’ll delve into the ever-expanding and diverse landscape of Islamic Banking and the sources of law that govern the market. The article discusses the sources of law of conventional banking and the possible link between Common Law with Islamic Law. We highlight some of the latest titles from the Sweet & Maxwell portfolio and also some of those that you may have missed, such as new editions of Chitty on Contracts, Dicey & Morris on the Conflict of Laws, MacGillivray on Insurance Law and Stroud’s Judicial Dictionary.

Daniel Greenberg speaks to us about Stroud’s, which was published at the end of 2012. In addition, we speak with Professor John Birds about celebrating 100 years of MacGillivray on Insurance Law, or title’s recent developments and the modern day practitioner.

We hope you enjoy it!

12 - 16 October Frankfurt Book Fair Frankfurt

NOVEMBER 2 - 8 November Ghana Book Fair

16 - 20 October American Bar Association International Law Fall Meeting Miami 31 October - 4 November UIA Dresden

Cover image: Photo by Henrik Andersen

EDITOR Vinay Mistry v.mistry@thomsonreuters.com

Vinay Mistry Editor

DESIGN Kirsty Guymer, Thomson Reuters (Legal) in-house design

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LEGAL LIGHTS • ISSUE 22

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ARTICLE

ARTICLE

UNDERSTANDING THE SOURCES OF LAW THAT GOVERNS ISLAMIC BANKING

The first source is the Islamic Holy Book called Al-Quran. The Holy Quran is the original and eternal source of Shariah law. It constitutes messages that Allah swt inspired the Prophet pbuh to relay for the guidance of mankind.

in Rome before the Christian era. 4 Canon law, on the other hand, is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of a Christian organization and its members. 5

The Hadith, the second foundation of Shariah, is next in importance to the Al-Quran. It is a piece of information, such as an account, narrative, or story and constitutes a record of the Sunnah of the Prophet pbuh, handed down from generation to generation and which have become the rules of faith and practice of Muslims.

Under the Civil law jurisdictions case law was traditionally given less weight. However, it would seem that the distinction between the two systems are becoming blurred as the importance of judicial decisions in Civil jurisdictions are given more weight and the growing importance of statute law and codes in Common law countries.

The third source of Shariah law is the Ijma. Ijma means a consensus of opinion of the mujtahids, or an agreement of the Muslim jurists of a particular age on a question of law.

While Civil law legal system descended from Roman law and Canon law, Common law is vaguely described as having been developed from customs or Roman and Canon law 6 and thereafter institutionalised in the twelfth century by King Henry II. 7

Qiyas is the process of reasoning by analogy of the mujtahids with regard to certain difficult and doubtful questions of doctrine or practice, by comparing them with similar cases already settled by the authority of the A/-Quran and Sunnah and thus arriving at the solution of undecided questions.

Conventional Law Sources

REUTERS

Sherin Kunhibava LLB (Hons), CLP, LLM, PhD

ARTICLE

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An effective legal infrastructure is essential for the development of any type of sector in a country. In Malaysia both the conventional and Islamic banking systems are subjected to sources of law which include legislation passed out by the State and Common law decisions made by judges when there is a lacuna in the law (this will be collectively described as conventional law for ease of understanding).

However Islamic banking business is also governed by another source of law and that is Shariah (Islamic law).

This article’s focus is on the description of the sources of law of Islamic banking. It also briefly discusses the sources of law of conventional banking and the possible link of Common Law with Islamic law. This article will further highlight certain distinguishing elements between Islamic banking law sources and conventional banking sources.

Islamic Law (Shariah) Sources

a watering place’. 1 It is the path that must be followed by Muslims, and governs man in conducting his life in order to realise the Divine Will, it includes all forms of behaviour spiritual, mental and physical. 2 There are four fundamental sources of Shariah law– Al-Quran, the hadith, Ijma and Qiyas.

1

Shariah literally means ‘the way to 2

As for conventional law there are two defined sources of legal jurisdictions, known as the Common law legal system and the Civil law legal system. Whether a jurisdiction follows a Common law legal system as opposed to Civil law legal system depends on the historical background of a nation. Common law systems usually descend from the English legal system, and therefore all commonwealth countries including the US have Common law systems. 3 Common law systems place emphasis on judicial decisions, which are considered “law” just as are statutes.

Civil law jurisdictions, on the other hand, descend from Roman law through either the Napoleonic code or the German Civil Code and also from Canon law. Roman law itself evolved

DOI, A. R. I. (1984) Shariah the Islamic Law, Kuala Lumpur, A.S Noordeen. P.2 LALDIN, M. A. (2006) Introduction to Shariah and Islamic Jurisprudence, Kuala Lumpur, Cert Publications.

LEGAL LIGHTS • ISSUE 22

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LEE, R. W. (1915) The Civil Law and the Common Law: A World Survey. Michigan Law Review, 14, 89-101.

However there are authors such as Makdisi, 8 who believe that the origins of Common law is actually from Islamic law, due to the uniqueness of Common law which is apart from any other European legal system, but has similarities with Islamic law. Makdisi identifies three unique and highly important features of Common law that only existed in Shariah or Islamic law at that time. These three features are firstly the transfer of property ownership on sole basis of offer and acceptance through the action of debt, secondly the speedy means for the loss of land ownership known as the ‘assize of novel disseisin’, and thirdly by the settling of disputes through trial by jury.

Researcher Badr 9 has written of his

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BADR, G. M. (1978) Islamic Law: Its Relation to Other Legal Systems. The American Journal of Comparative Law, 26, 187-198.

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BOUDINHON, A. (1910) Canon Law. The Catholic Encyclopedia Volume IX. New York, Robert Appleton Company. Nihil Obstat. Viewed December 21, 2006 at http://www.newadvent.org/cathen/09056a.htm.

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BERMAN, H. J. & GREINER, W. R. (1980) The Nature and Functions of Law, n.p.

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ADAMS, G. B. (1924) The Origin of the Common Law. The Yale Law Journal, 34, 115-128.

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MAKDISI, J. A. (1999) The Islamic Origins of the Common Law. North Carolina Law Review, 77, 1635 - 1739. P. 1638.

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Supra n4.

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own research on the parallels between Common law and Shariah. Another writer Gaudiosi 10, claims that the institution of trusts in English law originated from the Islamic waqf.

El-Gamal 11 has also noted that there are factors to show the similarities and influence of Islamic law on Common law, such as the methodology of legal precedent in English Common law and the reasoning by analogy in Islamic law known as Qiyas.

Shariah in depth Coming back to the topic at hand, it is safe to say that Common law and Civil law share common characteristics.

They both deal with the interpretation of man-made laws whether it is the case laws or the statutes.

As for Shariah, it deals in religious matters and God made law, and therefore differs from Common law and Civil law in that manner. However, Shariah deals not only with purely religious matters but also with all those subjects which comprise the content of Common law and Civil law legal systems. Shariah comprises of three basic elements, namely, aqidah, fiqh, and akhlaq. Aqidah concerns all forms of faith and belief in God and His will held by a Muslim. Fiqh is concerned with governing the relationship between man and his Creator and between man and man. Finally, akhlaq covers all aspects of a Muslim’s behaviour, attitudes and work ethic with which he performs his practical actions.

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It is with the Shariah branch of fiqh that Islamic banking is governed. Fiqh can be further divided into two areas called ibadat and muamalat. Ibadat is concerned with the practicalities of a Muslim’s worship to God, whereas muamalat is concerned with the manto-man relationship. Nevertheless, aspects such as political activities, economic activities and social activities will be under the ambit of muamalat.

Islamic finance, being part of economic activities, is thus linked with the Shariah principles through muamalat.

With regards to injunctions relating to aqidah, ibadah and akhlaq, these are fixed and unchangeable as they are considered to be suitable to be implemented at all times and places.

However injunctions of Shariah which regulates the relationship between man and man and other creatures change with the changes in circumstance, custom, time and place. It is this feature of Shariah that makes it suitable to be implemented at all times as it can accommodate the needs of people in different times and situations.

The rulings in relation to muamalat are derived from the sources of Shariah, however due to the changing circumstances of the world and the needs and interests of the people (maslaha) many of the legal injunctions had to be formulated from the sources of Shariah through reason by rightly qualified Muslim Jurists, this is known as ijtihad i.e. ‘exerting one’s reasoning faculty to determine a point of law’. 12 The process of applying and deducing laws from Shariah and the laws thereby deduced is collectively known as fiqh.

10 GAUDIOSI, M. M. (1988) The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College. University of Pennsylvania Law Review, 136, 1231-1261.

Since the 10th century the main

11 EL-GAMAL, M. A. (2006) Islamic Finance: Law, Economics, and Practice, Cambridge, Cambridge University Press.

12 ABDAL-HAQQ, I. (1996) Islamic Law: An Overview of its Origin and Elements. Journal of Islamic Law, 1, 1-60. P.9.

law-making activity have ceased, and activity of the jurists remained limited to interpretation and explanation of the existing doctrines, bringing it up to date with life as the conditions changed, because it was believed that any principle that could be deduced by ijtihad had already been deduced or extracted. After this time any new decision or fatwa (legal opinion) was based on previously recorded determinations made by a particular madhab, this concept is known as taqlid or conformity and is sometimes compared to the concept of stare decisis or judicial precedent in Common law.

reward for avoidance but no punishment for performance; and v) forbidden, where there is reward for avoidance and punishment for performance.

Therefore finding the injunctions of Islamic law requires reference to not only the sources of Shariah but also the books of fiqh. Legal opinion of scholars in Islamic finance often refer back to these sources of law when formulating an opinion on the permissibility of otherwise of a contract or instrument in Islamic banking.

Conclusion

Another significant feature of Islamic law which differentiates it from conventional law is the fact that not all acts done under Shariah are characterised as legal or illegal.

There are intermediate values as to a person’s action. There are generally five categories of assessment.

These are acts that are: i) obligatory, where performance will amount to a reward and omission will amount to a punishment from God, ii) recommended, performance of act is rewarded but neglect is not punished, iii) permitted, acts which neither get reward nor punishment iv) discouraged acts where there is a

LEGAL LIGHTS • ISSUE 22

Therefore while in other legal systems an act might be allowed, prohibited or indifferent in Shariah an individual is not only guided as to what he is entitled or bound to do in law, but also what he or she ought, to do or refrain from doing. In other words Shariah encompasses legal injunctions and moral or ethical injunctions whereas conventional law is concerned with legality issues alone.

There are certain similar elements within Shariah and conventional law, especially between Common law and Shariah. Such as the concept of taqlid in Shariah and the concept of stare decisis in Common law. Similarities in these two sources of law could point to the fact that Islamic law was a source of Common law; however this fact has yet to be empirically proven.

However there is one glaring difference between Shariah and conventional law and that is the fact that Shariah encompasses legal injunctions and moral or ethical injunctions whereas conventional law is concerned with legality issues. This means theoretically Islamic banking which is governed by principles of Shariah should undertake activities which are not only legal but also activities which are correct and morally right to do. That is why from the sources of the two banking systems one may make a conclusion that that there are more fundamental differences than similarities between these two banking systems.

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AUTHOR PROFILE

AUTHOR PROFILE

AUTHOR PROFILE

DANIEL GREENBERG

WHAT DO YOU THINK ARE THE MAIN CHALLENGES FACING PRACTITIONERS TODAY?

DANIEL GREENBERG

STROUD’S JUDICIAL DICTIONARY OF WORDS AND PHRASES, 8TH EDITION Daniel Greenberg is Parliamentary Counsel in the Parliamentary team at Berwin Leighton Paisner LLP, and the General Editor of Annotated Statutes, Westlaw UK. Having served as editor of Stroud’s Judicial Dictionary of Words and Phrases for nearly 20 years, he is also the Editor of Craies on Legislation, the General Editor of Jowitt’s Dictionary of English Law, and the Editor of the Statute Law Review.

COULD YOU TELL US A LITTLE BIT ABOUT YOUR PROFESSIONAL BACKGROUND? I joined the public legal service in 1988 as a legal adviser in the Lord Chancellor’s Department, and moved to the Parliamentary Counsel Office in 1991 where for the next 19 years I drafted Acts of Parliament in most fields of law, including constitutional law, tax, environmental law and crime.

I left the public service in 2010 for the Parliamentary team at Berwin Leighton Paisner LLP.

The sheer volume and complexity of legislation, exacerbated by the impacts of the EU and devolution, are possibly the greatest challenge: every area of human endeavour is now permeated with regulatory law in one form or another, and much of the legislation is difficult or impossible to understand.

Another modern challenge is the speed with which clients need answers: when I started, a rapid response was where you read a letter today, dictated a reply tomorrow, your secretary typed it the next day, and you sent it out on the day after that! Nowadays if the email hasn’t been answered in two hours the client is checking with your secretary that you’re still alive: communication has replaced thought in all areas of life, and the law is not immune.

WHAT ARE THE KEY RECENT DEVELOPMENTS THAT HAVE AFFECTED THE NEW EDITION OF STROUD’S JUDICIAL DICTIONARY OF WORDS AND PHRASES? Stroud has to reflect decisions and definitions throughout the courts and legislation: it is rare for any of them to stand out individually as particularly significant. People turn to Stroud because it is (hopefully) comprehensive and will give them a good spread of leads and ideas on a particular term, whether in an interpretation or a drafting context; so I try not to exclude anything just because it is trivial, even in its own context. Provided it is sufficiently clear to be likely to be helpful, I aim to include it. The result is that Stroud grows all the time, and I think it may have to suffer a selective cull before the next edition (as we did in 2000).

STROUD’S JUDICIAL DICTIONARY OF WORDS AND PHRASES

HOW DID YOU COME TO WRITE THIS BOOK IN THE FIRST INSTANCE? I wrote to Sweet & Maxwell to complain about an entry that I thought deficient.

Instead of a written reply, I received a visit from the commissioning editor asking me if I would like to become involved! A few years later I found myself the editor of Stroud, having become increasingly captivated by the book in the meantime.

HOW DO YOU MANAGE YOUR TIME BETWEEN BEING AN AUTHOR AND YOUR DAY-TO-DAY WORK? With a certain amount of difficulty.

DO YOU HAVE ANY OTHER PROJECTS ON THE HORIZON YOU CAN TELL US ABOUT?

REUTERS/Tony Gentile

wonderful cooking, and reading books in the bath. I also try to remember to find the time to thank God for His many, many blessings, and to pray for the health and strength to continue to enjoy them.

The most exciting is the new Westlaw UK project which aims to produce an online encyclopaedia of the whole of the law of the United Kingdom: this is an enormously challenging project but one which I believe could go a significant part of the way towards meeting the challenges for lawyers discussed above. The next edition of Craies on Legislation is also due out this year, and after the publication of my book about the legislative process – Laying Down the Law – in 2011 I am beginning to feel ready to think about the next book!

The eagerly anticipated Stroud’s Judicial Dictionary of Words and Phrases allows you the ability to define words and phrases precisely and have quick access to the exact, authoritative meaning of terms.

8TH EDITION

This three-volume work provides definitions in various legal contexts in both historic and modern terms. It is a guide to the present construction of words and phrases occurring in legislation, decided cases and other legal documents as well as references contained in statutes. Proving to be a practical source of guidance for the setting out of definitions of particular concepts in the drafting of contracts and other legal documents

HOW DO YOU SPEND YOUR FREE TIME? If by “free time” you mean the time when I am not advising clients, drafting UK or foreign law, teaching law, writing books, governing schools, and teaching Jewish law and philosophy, then my free time is divided between receiving good advice from my four children, eating my wife’s

The 8th Edition published in July 2012, priced at £605 Visit sweetandmaxwell.co.uk to order your copy, or contact your Account manager.

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LEGAL LIGHTS • ISSUE 22

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ARTICLE

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SWEEPING REFORM FOR EU DATA PROTECTION Monika Kuschewsky

ARTICLE Privacy rights is just one of the areas which the proposed directive on data protection will cover. Monika Kuschewsky discusses the implications of the new regime.

On 25 January 2012, the European Commission officially unveiled its

REUTERS/Petr Josek

proposal reform the European Union’s legal framework on data protection.

According to Viviane Reding, Commissioner for Justice, Fundamental Rights and Citizenship, this reform is primarily aimed at strengthening online privacy rights. However, the reform proposal in fact goes much further and will basically affect all businesses that are processing personal data.

The reform proposal has come as a response to massive technological progress and the ongoing march of globalisation, which have profoundly changed the way personal data is collected, accessed and used. The current framework which is based on the 1995 Data Protection Directive, adopted in the pre-internet age, is considered not to be fit for the challenges of the 21st century.

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Moreover, the 27 member states of the EU have implemented the current rules in different ways, resulting in substantial divergences in interpretation and application, as well as causing much legal uncertainty.

Finally, following the entry into force of the Lisbon Treaty in 2009, the right to data protection has been enshrined in primary EU law and there is now a specific legal basis empowering the EU to adopt legislation on data protection.

The proposal is largely the result of a two-year review process, launched in 2009 by the Commission, during which it carried out extensive consultations with stakeholders. A draft text of the proposal was leaked in December 2011, prompting fierce opposition from as many as six other Directorate-Generals of the European Commission, in addition to a host of industry actors.

A number of provisions therefore needed to be watered down before the definitive version could be published.

Proposals The reform basically consists of two legislative proposals in addition to some complementary documents, such as a policy communication. The proposals include a draft General Data Protection Regulation setting out a general EU framework for data protection to replace the 1995 Data Protection Directive and a draft directive in the area of police and judicial cooperation in criminal matters.

The main body of the reform which is of relevance to private businesses is contained in the draft regulation, which

would be directly applicable in the member states without the need for any national implementing measures.

While such a single law would do away with the present legal fragmentation, enhancing the internal market dimension, it would also come at a cost to businesses.

The reform will build upon wellestablished principles of the existing regime, but will also give it some much-needed teeth, making it more burdensome and hard-hitting for businesses and organisations.

Companies will no longer be able to pay lip-service to the EU’s data protection rules and must endeavour to introduce a genuine ‘culture’ of accountability in their data processing practices.

Most of the proposed changes will affect larger companies rather than small and medium-sized enterprises (SMEs) with less than 250 employees, which will benefit from a number of exemptions to the proposed additional obligations on companies. The European Commission also proposes to extend the territorial scope of EU data protection law, closing any loopholes that exist under the current regime. In particular, the new rules will cover any companies established abroad insofar as their data processing activities are related to the offering of goods or services to EU residents or to the monitoring of their behaviour.

Two of the Commission’s key objectives for a reform of the EU data protection framework were the strengthening of individuals’ rights and more effective

REUTERS/Toru Hanai

enforcement of the data protection rules, both of which have been addressed by the proposal.

Main changes There are a number of key changes to the current rules.

Companies will be obliged to comply with the new rules, to implement

LEGAL LIGHTS • ISSUE 22

appropriate measures and to actively demonstrate and document their compliance (principle of accountability). In particular, they will be obliged to retain extensive documentation of all data processing operations, carry out data protection impact assessments before any risky processing and appoint a dedicated data protection officer within their

organisation. They will also have to notify the national supervisory authority of personal data breaches without undue delay (if feasible, within 24 hours) and, in serious cases, notify the individuals whose data has been compromised.

Business organisations must ensure compliance with the new framework from a very early stage, before the

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Benefits to businesses At the same time, the proposal foresees changes which will be beneficial for businesses.

Business organisations that are established in several member states will benefit from a ‘one-stop shop’: they will only have to deal with a single national data protection authority in the EU country where they have their main establishment. Likewise, consumers will be able to refer to the data protection authority in their country of residence.

REUTERS/Petr Josek

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processing has even begun (principle of privacy by design). In addition, only personal data which is necessary for a specific purpose can be processed and cannot be collected or kept beyond the minimum necessary (principle of privacy by default).

provider to another more easily (the right to data portability). A ‘right to be forgotten’ will help people to better manage data protection risks online, allowing them to ensure that their data is deleted if there are no legitimate grounds for having it retained.

Wherever data processing is based on consent, consent will have to be given explicitly, rather than simply assumed.

Individuals’ rights to judicial remedies have also been expanded, including a new possibility of representative legal actions. Moreover, companies must adopt internal procedures and mechanisms to facilitate the exercise of data subjects’ rights.

Moreover, the new law will reinforce child protection, among others, by requiring parental/custodial consent in case of the provision of information society services to children under 13.

The proposal provides for increased transparency, complemented by additional information obligations.

Individuals must be able to transfer personal data from one service

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National data protection authorities will be significantly strengthened, in terms of independence, resources and powers. In particular, they will be empowered to issue orders (for example, ban or suspend certain processing), engage in legal

proceedings and fine companies that violate EU data protection rules.

Penalty concerns Businesses are particularly concerned about the new and harsher penalties under the proposed rules. The least severe action against a breach of the law will be a written warning which will be sent when there is ‘a first and non-intentional non-compliance’.

However, for more serious offences, administrative fines of up to ##1 million or two per cent of a company’s annual worldwide turnover, will apply to infringements such as a failure to appoint a data protection officer or to notify authorities of a personal data breach. The potentially steep level of such fines is a groundbreaking reform, reminiscent of the penalties applied for breaches of EU competition law.

LEGAL LIGHTS • ISSUE 22

Unnecessary administrative burdens, such as registration notification for companies, will be removed (except in limited cases). This much-welcomed removal of red tape is expected to generate annual net savings for companies of around ##2.3 billion.

In addition, the transfer of personal data to non-EU countries will be facilitated by a more streamlined set of rules (for instance, by the explicit recognition of binding corporate rules and a simpler approval process).

Debating the options The European Commission’s legislative proposal will now be debated by the European Parliament and EU member states (meeting within the Council of Ministers), which can both suggest changes to the text. In her press conference on 25 January 2012, Ms. Reding openly admitted that the European Commission has been subject to fierce lobbying in respect of the draft law and this will certainly

continue throughout the legislative process.

It is expected that the legislative process will take around two years, although the European Commission has an incentive to get the proposal passed before the end of the current terms of the European Commission and European Parliament.

On the other hand, the proposal is certain to face robust political opposition. Some member states might be reluctant to give up their own national laws, especially if they are considered to provide a higher level of protection than the proposed rules (for instance, in the case of Germany), or if they are considered to be less burdensome for businesses (for instance, in the case of the UK).

The draft proposal may even be challenged in court; in Germany for example, the legality of the proposal has been questioned in light of German constitutional law.

The current proposal foresees a transition period of two years. It is therefore expected to take up to four years in total before the law enters into full force and it is quite likely that substantial changes will be made to the text during the legislative process.

Monika Kuschewsky is a partner and head of the European data protection practice at Van Bael & Bellis. She is the editor of Data Protection 2012, published by Thompson Reuters European Lawyer Reference Books.

Euro. Law. 2012, 112, 12-14 © 2012 FutureLex

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PUBLICATION REVIEW

PUBLICATION REVIEW

GOFF & JONES: THE LAW OF UNJUST ENRICHMENT Charles Mitchell, Paul Mitchell, Stephen Watterson and Reviewed by James Edelman

PUBLICATION REVIEW Subject: Restitution. Other related subjects: Unjustified enrichment *L.Q.R. 619 A mark of the veneration in which Goff and Jones is held is the number of stories concerning its inception. A common account is that in the early 1960s a young don at Lincoln College named Robert Goff approached Sweet & Maxwell publishers with a proposal to write a book on the law of restitution. Initially Goff was intending to write it with his colleague, Ron Maudsley, then at Brasenose. But Maudsley withdrew.

Another Oxford colleague of Goff’s, the late Brian Simpson, introduced Goff to a college lecturer at Oriel College, Gareth Jones. Simpson had earlier introduced Jones to Vivienne, the woman Jones married. And he created another long-standing marriage of sorts: Goff and Jones.

Soon after the publication proposal was approved, another young academic called Harvey McGregor is said to have approached Sweet & Maxwell with a proposal for a book on restitution. Sweet & Maxwell suggested, instead, that McGregor edit the next edition of Mayne on Damages.

At a stroke, Sweet & Maxwell secured the future for what became two of the leading books in their subjects in the common law world: Goff and Jones’ The Law of Restitution and McGregor on Damages.

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Lord Goff retired from the editorship of Goff and Jones prior to the fourth edition (1993). Professor Jones has now also retired. The eighth edition (2011) is the first edition of this foundational work without either Goff or Jones.

Nearly half a century after its first publication the book is now edited by a formidable team of Professor Charles Mitchell, Professor Paul Mitchell and Dr Stephen Watterson. Professor Charles Mitchell exercised general editorial oversight. For those who are interested, the preface contains the complex algorithm of the distribution of writing and editing of each chapter.

The new editors have radically changed the book.

The law of unjust enrichment has always existed in English law, as it did in Roman law, and indeed as in any “civilised legal system” (to use the dated phrase of Lord Wright: Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] A.C. 32 at 61). Although Lord Wright had recognised the existence of this category of law it was barely known in England, and almost never discussed judicially, until the publication of the first edition of Goff and Jones. In Holt v Markham [1923] 1 K.B. 504 at 513, Scrutton L.J. had described the roots of unjust enrichment as “well-meaning sloppiness of thought”. That was the prevailing *L.Q.R. 620 opinion. The respectability of the law of unjust enrichment depended upon its disguise in contract texts, as quasi-contract; or simply by incantation of the names of long-abolished forms of action: money had and received, money paid, quantum meruit. In 1966, the opening pages of the first edition of Goff and Jones’ The Law of Restitution seemed

to suggest that the recognition of unjust enrichment ought to proceed based upon these vague principles: “unjust enrichment is simply the name which is commonly given to the principle of justice” (p.11) and, “in a search for unifying principle at this

Seavey, in the American Law Institute’s Restatement of the Law of Restitution (1937). The premise of that work was that unjust enrichment and restitution were two sides of the same coin. But there was one very significant respect in which Goff and Jones differed from the earlier thinking on the other side of the Atlantic. The initial statements by Goff and Jones about the “principle” of unjust enrichment were qualified.

They explained that “the search for principle should not be confused with the definition of concepts” (p.12).

And unjust enrichment could also be understood as a “concept”. It was introduced two pages later in the following terms (p.14):

REUTERS/Nicky Loh

REUTERS/Bogdan Cristel

level we should not expect to find any precise ‘common formula’, but rather an abstract proposition of justice” (p.12). The focus of their work was on restitution. It was a focus upon a clear and established legal response which, Goff and Jones assumed, was a response which was always underpinned by the principle of unjust enrichment.

In this respect, the statements by Goff and Jones also echoed the approach taken by the reporters, Scott and

“The principle of unjust enrichment is

capable of elaboration. It presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff’s expense; and thirdly, that it would be unjust to allow him to retain the benefit.”

Since the recognition of unjust enrichment in Lipkin Gorman v Karpnale Ltd [1991] 2 A.C. 548, and particularly the leading speech of

LEGAL LIGHTS • ISSUE 22

Lord Goff of Chieveley, the “concept” idea of unjust enrichment began to develop in place of the notion of unjust enrichment as a broad principle of justice. With the heavy influence of Birks’ Introduction to the Law of Restitution (1985) courts focussed upon the concept of unjust enrichment in a reductionist manner: was the defendant (i) enriched; (ii) at the expense of the claimant; (iii) in particular circumstances of injustice; (iv) defences.

It soon became clear that greater conceptual clarity was needed in relation to (iii). Again with Birks at the lead, courts soon recognised that it was incoherent to include established legal wrongs in the circumstances of injustice necessary for an action based upon unjust enrichment. To do so would cross-cut the concepts of legal wrongdoing (such as the law of torts) and the law of unjust enrichment: Sempra Metals Ltd v HMRC [2007] UKHL 34; [2008] 1 A.C. 561 at [116] (Lord Nicholls), [132]–[146] (Lord Scott), [230]–[231] (Lord Mance). This narrowing of the concept of unjust enrichment crossed back over the Atlantic last year in the American Law Institute’s Restatement of the Law (Third) Restitution and Unjust Enrichment (2011), at p.3 : “unjust enrichment [is] an independent basis of liability in common law legal systems— comparable in this respect to a liability in contract or tort[s]”. *L.Q.R. 621 This mature conception of an independent law of unjust enrichment precipitated one radical change which the new editors have made to the eighth edition of Goff and Jones. Since restitution might be a legal response to wrongdoing and events other than unjust enrichment, the book is no longer called The Law of Restitution.

It is The Law of Unjust Enrichment.

The seven chapters in section 3 of the previous edition, dealing with “Where the Defendant has Acquired a Benefit Through his own Wrongful Act”, have all been axed. Separate, contextual, chapters such as attornment, claims under a will or intestacy, perfection of imperfect gifts, have also gone. And

the structure has radically changed.

The book is now structured along the lines first mooted by Goff and Jones in 1966: there are parts on (i) enrichment; (ii) at the expense of the claimant; (iii) grounds for restitution; and (iv) defences.

In this new edition the editors have taken the lumberer’s axe rather than the surgeon’s scalpel to the book. The theoretical clarity that has been brought by their exercise of instauration has come at a price. To those who are accustomed to it, the book is no longer familiar. Practitioners will also search in vain for familiar chapters dealing with problems of attornment, or intestacy, breach of fiduciary duty, breach of confidence, and so on. And the book will not be able to be understood without reading the introduction. But this is a price which must be paid. Leading texts must lead. Unjust enrichment is a subject which has been shaped by leadership from the academy in the last half century. This new edition will ensure that this continues to be the case.

In a longer review much more might be said about the theoretical dimensions of the book, particularly the two parts concerning “Justifying Grounds” and “Remedies”. In this short review, it is enough to say that different views exist on these two areas. Some maintain that there are no separate “justifying grounds”. And some maintain that a “remedies” enquiry is a false step because different measures of restitution correspond with different conceptions of enrichment; the issue is not one of remedy but instead it is a question of the nature of enrichment.

But whatever view is taken there can be little doubt that this text has again advanced the law of unjust enrichment.

And for that we owe the new editors, and their two forebears, many thanks.

James Edelman Supreme Court of Western Australia The Law Quarterly Review 2012, 128(Oct), 619-621 © 2012 Sweet & Maxwell and its Contributors

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ARTICLE

ARTICLE

HYDRAULIC FRACTURING AND THE SHALE GAS BOOM Daniel M. Steinway Thomas C. Jackson

ARTICLE

Introduction Recent technological advances have unlocked vast sources of natural gas trapped in shale formations deep underground. The ability to economically produce these reservoirs has turned the United States into the “Saudi Arabia of natural gas”, changing the energy outlook for the nation and offering the potential for significant impacts on America’s energy security and climate change initiatives.

The key to unlocking existing shale gas and other unconventional gas reserves in the United States is hydraulic fracturing, a technology that has been used over the past 60 years to enhance production from oil and gas wells in a wide variety of formations and that is increasingly critical to oil and gas production. Hydraulic fracturing involves pumping fluids down a well bore at high pressures into a targeted subsurface formation.

These pressures are designed to create cracks or fissures in the rock formation

22

containing oil and gas reserves and improve the flow characteristics of the formation. Hydraulic fracturing fluids are primarily water-based and contain small concentrations of certain chemical additives which make the fluid viscous and improve the fluid’s performance.

Despite a long history of successful regulation of hydraulic fracturing operations by the states and the safe and effective use of the technology in the United States, increased production of shale gas has given rise to concerns among environmental and citizen groups. Notwithstanding the absence of any hard evidence that hydraulic fracturing has impacted drinking water resources, regulators and legislators at both the federal and state levels have taken steps to address these concerns by imposing additional regulatory requirements on hydraulic fracturing. These new requirements could significantly impact the nation’s energy security.

Known and essential technology Domestic energy production depends upon the effective and economic use of hydraulic fracturing technology.

Experts have estimated that over 90 per cent of all oil and gas wells in the United States today are hydraulically fractured. Without hydraulic fracturing, production of domestic unconventional oil and gas would be significantly limited. For example, the American Petroleum Institute has indicated that domestic production of natural gas would decrease by 57 per cent over 10 years and domestic oil production would decline by 23 per cent if hydraulic fracturing technology could not be utilised.

The combination of hydraulic fracturing and horizontal drilling techniques has played a particularly key role in making

gas trapped in shale formations accessible. In 2009, the Potential Gas Committee reported a 35 per cent increase in estimated domestic reserves of natural gas, primarily due to the increased viability and production capabilities in shale plays around the country. Similarly, the US Energy Information Administration (EIA) recently released its Annual Energy Outlook 2011, which includes an estimate of technically recoverable, domestic shale gas resources that is 480 trillion cubic feet greater than the estimate issued by EIA only a year earlier. These abundant supplies of natural gas can only be accessed and effectively produced with hydraulic fracturing.

The basic fracturing technology being used today in the shale plays remains the same as that which the oil-and gas-producing states have been regulating for over 60 years. State regulatory programs typically include provisions setting well construction standards that are designed to protect surface and subsurface water resources from contamination. These well construction requirements include well casing and cementing standards that ensure isolation of the well bore from nearby shallow formations that may contain drinking water aquifers.

State permitting requirements also provide state regulators an opportunity to review proposed drilling plans and ensure that water sources will be protected during hydraulic fracturing activities. These state programs have been highly effective in preventing contamination and protecting drinking water sources, particularly in light of the fact that there have been no confirmed instances of adverse impacts on drinking water supplies associated with hydraulic fracturing operations.

REUTERS/Vladimir Nikolsky

Federal, state initiatives aimed at regulation Notwithstanding the many years of effective regulation of hydraulic fracturing by state oil and gas programmes, regulators and legislators at the federal, state and local level have increasingly undertaken initiatives over the *I.E.L.R. 181 last few years to impose additional restrictions and requirements on hydraulic fracturing activities. These initiatives have come in response to allegations-which have not been scientifically confirmed--by environmental groups and others about drinking water well

LEGAL LIGHTS • ISSUE 22

contamination and other purported impacts of hydraulic fracturing operations.

At the federal level, legislation reintroduced in the current Congress-commonly known as the FRAC Act--would require the regulation of hydraulic fracturing under the federal Safe Drinking Water Act (SDWA), resulting in the imposition of additional permitting requirements and other restrictions on fracturing operations that could result in significant, additional administrative burdens, delays and costs for well operators.

This proposed legislation also would

require service companies to publicly disclose the chemical constituents of all fracturing fluids, a requirement that goes beyond any existing chemical disclosure requirement under any other applicable federal programmes.

In addition, the US Environmental Protection Agency (EPA) has taken a number of steps to increase its oversight and regulation of hydraulic fracturing. For example, sometime in the spring or early summer of 2010, EPA posted statements on its website indicating that the Agency would now be attempting to regulate hydraulic fracturing using diesel or

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diesel-based additives as part of the federal Underground Injection Control program under the SDWA. This website posting marked the first time EPA had suggested that it was attempting to implement the authority provided to the Agency under the Energy Policy Act of 2005 to regulate hydraulic fracturing operations involving the use of diesel.

Industry groups have challenged this website “rulemaking” for several key reasons; namely: (1) in attempting to add additional new regulatory requirements on hydraulic fracturing, the Agency failed to comply with the key rulemaking requirements under the federal Administrative Procedure Act; and (2) EPA’s proposal to regulate wells being hydraulically fractured as Class II UIC wells was inconsistent with the Agency’s prior position that the regulations applicable to these wells are not well suited to hydraulic fracturing operations. The litigation was subsequently settled, and EPA has now issued proposed guidance on the issue for public comment.

State regulators and legislators have also undertaken efforts to impose new or additional requirements on hydraulic fracturing. For example, the Colorado Oil and Gas Conservation Commission has recently adopted new regulatory requirements that provide the public with information about the chemicals used in hydraulically fracturing individual wells through posting on a national online registry known as FracFocus, while at the same time protecting trade secret information.

A number of other states have taken steps to address the regulation of hydraulic fracturing. For example, Arkansas, Idaho, Louisiana, Montana, New Mexico, North Dakota, Oklahoma, Pennsylvania, Texas and Wyoming have all updated and amended their oil and gas regulatory programmes to more specifically address hydraulic fracturing operations, while rulemakings are underway in Tennessee and West Virginia. Legislations in a number of states--from California to Ohio and Vermont--have likewise addressed the issue.

24

ARTICLE

At the same time, the New York State Department of Environmental Conservation (NYSDEC) continues to consider revisions to its regulations to address high-volume hydraulic fracturing operations in horizontal wells drilled in the Marcellus Shale.

Acting in response to an executive order issued by the former New York Governor, David Paterson, the NYSDEC prepared a draft Supplemental Generic Environmental Impact Statement (draft SGEIS) to assess the potential environmental impacts of these activities in which it proposed to impose a number of new requirements on drilling and hydraulic fracturing of Marcellus Shale wells. NYSDEC subsequently issued a revised draft SGEIS and is considering 60,000 public comments it received in response--effectively extending a de facto moratorium on Marcellus Shale gas development in the state.

Additional regulatory requirements at the federal, state and local levels could significantly disrupt hydraulic fracturing operations and dramatically impact domestic gas production. For example, the Department of Energy has estimated that regulation of hydraulic fracturing under the SDWA would add over $100,000 to the cost of drilling and operating a natural gas well. These added costs could render some wells uneconomical for future development.

Moreover, some of the restrictions proposed at the state and local level could further slow or prevent viable production of domestic oil and gas resources. At the same time, proposed rules requiring the full disclosure of the formulas of proprietary products used in hydraulic fracturing would jeopardise service companies’ trade secrets. The risk posed by this type of required disclosure creates substantial disincentives for service companies to engage in the necessary research and development of hydraulic fracturing fluids and to use their state-of-the-art technologies which have proved critical to the economic development of US domestic energy resources.

REUTERS/Mathieu Belanger

Little, no threat to drinking water While federal, state and local governments have taken steps to impose new requirements on hydraulic fracturing operations, the need for these added measures certainly remains subject to question. Contrary to popular allegations, there is no evidence that hydraulic fracturing has resulted in the contamination of any drinking water supplies. In fact, state regulators have repeatedly affirmed that they are not aware of any instances of contamination of drinking water aquifers as a result of hydraulic fracturing operations.

A number of studies have confirmed that hydraulic fracturing poses little to no risk to drinking water aquifers.

In 2004, EPA conducted an extensive study of the potential impacts of hydraulic fracturing in coal-bed methane (CBM) wells on drinking water supplies. EPA *I.E.L.R. 182 concluded that hydraulic fracturing of CBM wells

poses little or no threat to underground sources of drinking water. Other studies commissioned by or conducted by state governments (such as the NYSDEC) and others have similarly concluded that there is no evidence that hydraulic fracturing operations have contaminated or could plausibly contaminate drinking water supplies.

These conclusions are logical given the nature of hydraulic fracturing activities and the various geological and technical factors that prevent any significant migration of fracturing fluids upward from targeted production formations and into shallow drinking water wells thousands of feet above. In addition, industry well construction practices and zonal isolation techniques such as casing and cementing help ensure that fluids in the well bore will not come into contact with groundwater at shallow depths that may serve as a source of drinking water.

LEGAL LIGHTS • ISSUE 22

Despite an established lack of risk, EPA is undertaking a new study of hydraulic fracturing at the direction of Congress. The Agency’s Study Plan lays out a broad approach to EPA’s study of hydraulic fracturing and its potential impacts on drinking water sources.

The initial results of EPA’s study are expected by the end of 2012, with a final report due in 2014.

Conclusion With the shale gas boom continuing to gather steam, hydraulic fracturing is expected to be the subject of ongoing scrutiny. Hydraulic fracturing will likely remain a focus for environmental and citizen groups concerned about the potential environmental impacts associated with shale gas development. While the prospects for federal legislative activity in the near future are slight, EPA will proceed with its study of hydraulic fracturing and may continue to explore its regulatory authority over hydraulic

fracturing operations. State regulators and legislators will likely continue to undertake efforts to impose increased regulatory requirements on hydraulic fracturing operations regardless of whether those additional requirements actually serve to mitigate any real risk. Ultimately, where we end up on both the federal and state regulatory front will impact the extent to which the nation can economically access and produce the vast natural gas supplies that could significantly affect the United State’s energy security and lower greenhouse gas emissions generated by America’s energy use.

International Energy Law Review 2012, 5, 180-182 © 2012 Sweet & Maxwell and its Contributors

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LEGAL LIGHTS • ISSUE 22

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29

AUTHOR PROFILE

AUTHOR PROFILE

AUTHOR PROFILE

PROFESSOR JOHN BIRDS

INTRODUCTION

MACGILLIVRAY ON INSURANCE LAW 12TH EDITION

John Birds is Emeritus Professor at the University of Manchester and Honorary Professor at the University of Sheffield. Previously he had been Professor of Commercial Law at the University of Sheffield since 1989, moving to Manchester University in 2006.

PROFESSOR JOHN BIRDS

COULD YOU TELL US ABOUT YOUR PROFESSIONAL BACKGROUND? I have been an academic all my working life (although I have provided, and continue to provide, consultancy services).

WHY DID YOU CHOOSE TO SPECIALISE IN INSURANCE LAW? I studied it when I took my LLM degree at UCL in 1969-70 and then got the opportunity to teach it at Queen Mary College London on the London LLM. It has always fascinated me (and continues to do so).

WHAT DO YOU THINK ARE THE MAIN CHALLENGES FACING PRACTITIONERS TODAY? Keeping abreast of relevant developments, surviving in the modern world (especially as regards smaller firms of solicitors).

He is known as a leading authority on company law and insurance law, having published many books, articles and book chapters in both areas and holding editorial positions in leading company and commercial law journals, including The Company Lawyer and The Journal of Business Law. He has lectured widely on both subjects, both in the UK and abroad, including in recent years at the University of Sydney, the National University of Singapore, the University of Nancy and the Korea Stock Exchange. He has acted as consultant to government and private bodies. In 1991, he was elected as a Fellow of the Royal Society of Arts. He has been a member of the Training Committee of the Law Society, was a member of the Law Panel for the Research Assessment Exercise 2001 and a member of the Law Sub-Panel for the Research Assessment Exercise 2008 and in 2003-04 was President of the Society of Legal Scholars. He is also a member of the Project Group for the Restatement of European Insurance Contract Law. He has been an editor of MacGillivray since the 8th edition.

REUTERS/Lucas Jackson

REUTERS/Lucas Jackson

HOW DO YOU SEE TECHNOLOGY INFLUENCING THE MODERN PRACTITIONER?

HOW DO YOU THINK THE NEW EDITION WILL HELP ITS READERS IN THEIR WORK?

HOW DO YOU MANAGE TO JUGGLE YOUR WRITING AND YOUR DAY TO DAY WORK?

It clearly already does in terms of online access to primary and secondary materials. I imagine that more and more will be available in electronic form, for example by way of Apps for the likes of the iPad, as well as on the web.

By continuing to provide an authoritative account of the law applying to insurance contracts, largely by reference to case law.

Now that I semi-retired, it is much easier! I only do a small amount of teaching (largely at the University of Sheffield now) and have no administration to attend to (in my previous jobs at Sheffield and Manchester I was heavily involved in that side of academic life, as a Head of Department for many years)

WHAT ARE THE KEY RECENT DEVELOPMENTS THAT HAVE AFFECTED THE NEW EDITION OF MACGILLIVRAY ON INSURANCE LAW? The key one was clearly the Consumer Insurance (Disclosure and Representations) Act 2012, but there have been important case law developments affecting good faith in insurance, conflicts, the meaning of “contract of insurance”, liability insurance, including motor liability insurance and reinsurance, among others.

DO YOU HAVE ANY OTHER WRITING PROJECTS ON THE HORIZON? I have, fairly quickly, to update my own Modern Insurance Law for the ninth edition. I am also general editor of the Encyclopaedia of Insurance Law and have writing commitments in company law, especially for Gore-Browne on Companies and Annotated Companies Legislation.

HOW DO YOU RELAX IN YOUR SPARE TIME? Playing with my grandchildren, walking, gardening and watching sport, especially football.

Essential for insurers and their brokers, MacGillivray on Insurance Law is a classic work which deals with insurance risks and takes into account the key legislative developments and judicial decisions in this area.

The 12th Edition will bring this well-regarded work up to date and marks the 100th anniversary since the first edition. It provides you with analysis of essential cases from the insurance sector and includes a wide range of authorities, comparing English law with its Scottish, US and Common wealth counterparts providing you with a clear understanding of the key themes. It also deals with the new law under the Consumer Insurance (Disclosure and Representations) Act 2012 and considers the latest restructuring of the FSA and Bank of England, looking at the shift of responsibilities.

12TH EDITION

The 12th Edition is available now, priced at £400.

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LEGAL LIGHTS • ISSUE 22

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