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The Global Legal Post: Commercial Litigation and Cross-border Enforcement in Hong Kong

18Sep2023

This article was initially published by The Global Legal Post.

1 . What is the structure and organisation of local courts dealing with commercial claims? What are the main procedural rules governing commercial litigation?

The Basic Law of Hong Kong (HKBL) is the constitutional document upon which the Special Administrative Region is founded. Section 4 of the HKBL expressly provides that Hong Kong will have an independent judiciary, which will exercise judicial powers free from any interference.[1] The Hong Kong legal system is thus separate from the legal system of the People’s Republic of China (PRC).

The court system in Hong Kong is bilingual and proceedings can be conducted in either or both Chinese and English.[2] Pursuant to Article 81 of the HKBL, the courts in Hong Kong comprise of: 

  • The Court of Final Appeal. This is the final appellate court of Hong Kong and has the power of final adjudication.[3] The Chief Justice of the Court of Final Appeal is the head of the judiciary.
  • The High Court, comprised of the Court of Appeal and the Court of First Instance (CFI). The Court of Appeal hears appeals on civil and criminal matters from the CFI and the District Courts, as well as from the Lands Tribunal. The CFI has unlimited jurisdiction in both criminal and civil matters. It also hears appeals from the Magistrates’ Courts, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal.
  • The District Court, which has limited jurisdiction in both criminal and civil matters. The Family Court of Hong Kong is also part of the District Court. 
  • Magistrates Courts, which exercise criminal jurisdiction over a wide range of indictable and summary offences.
  • Other special courts, which include the Competition Tribunal, the Lands Tribunal, the Coroner’s Court, the Labour Tribunal, the Small Claims Tribunal, and the Obscene Articles Tribunal.

Major commercial disputes are usually brought before the CFI as it has unlimited civil jurisdiction. The District Court has jurisdiction over smaller commercial disputes (of values over HKD 75,000 and up to HKD 3 million). Claims below HKD 75,000 are dealt with by the Small Claims Tribunal. 

In addition, the CFI reserves jurisdiction in certain types of disputes, in particular the:

  • Construction and Arbitration List for disputes concerning civil or mechanical engineering; building or other construction work; claims by or against engineers, architects, surveyors and other professionals engaged in the construction industry; and applications relating to arbitration.[4]
  • Intellectual Property List for applications, appeals or claims made in respect of matters such as trademarks, patents, copyrights and other registered designs.[5]
  • Constitutional Law and Administrative Law List for applications such as judicial review and other issues relating to the HKBL.[6]
  • Commercial List for actions involving commercial matters.[7]

Procedures in civil proceedings in Hong Kong are set out in the Rules of the High Court (Cap 4A) (RHC) and the Rules of the District Court (Cap 336H) (which is very similar to the RHC). Practice Directions are also published to provide further practical guidance to civil and criminal procedures in the Hong Kong Courts.

[1] Article 85, HKBL.

[2] Article 9, HKBL.

[3] Article 82, HKBL

[4] Practice Direction 6.1.

[5] Practice Direction 22.1.

[6] Practice Direction 26.1 and SL3.

[7] Practice Direction SL1.1.

2 . What pre-action considerations apply?

There are no specific rules on pre-action conduct but it is customary (though not necessary) for actions to be preceded by letter(s) before action. This is because the court has wide discretion in dealing with the matter of costs (see Question 7 below) and the court may take into account parties’ pre-action conduct in determining costs issues.[8] As such, parties should ensure that they act reasonably before, as well as during, the proceedings. 

It may also be relevant to consider the matter of limitation periods in Hong Kong, which are set out in the Limitation Ordinance (Cap. 347).

[8] Order 62, rule 5(1)(e) and (2)(d), RHC.

3 . What are the main alternative dispute resolution (ADR) methods used to settle large commercial disputes?

The most common ADR methods in Hong Kong are mediation and arbitration.

Mediation

Mediation involves the appointment of a neutral third party to help facilitate settlement discussions. Since Hong Kong’s implementation of the Civil Justice Reform (CJR) in 2009, solicitors are required to file mediation certificates confirming that they have advised their client on the mediation process and indicating whether their clients are willing to participate in mediation. There is also a Practice Direction providing a practical framework for incorporating mediation into the court process. 

Arbitration

Arbitration is an ADR method which is particularly popular with parties involved in high-value and complex international commercial disputes. Arbitration is favourable to the parties in these disputes due to its relative procedural flexibility (compared to court proceedings) and its confidential nature. Arbitral awards are generally final and binding (see Question 11 below) and can be enforced through the Hong Kong courts (as well as in foreign courts).

4 . How long, on average, do court proceedings take to reach trial?

Relatively straightforward civil matters commenced by writ of summons could be ready for trial two to three years from the commencement of proceedings. However, more complex matters where the timeline is delayed by multiple interlocutory applications could take many years before they are ready to be set down for trial. In addition, the date of the actual trial would depend on the number of days required (to be directed by the court, having consulted with the parties) and the court’s diary.

In certain circumstances, a plaintiff may obtain judgment without a full trial. These circumstances are discussed further in Question 8 below. 

5 . What disclosure obligations apply? Are parties required to disclose unhelpful documents as well as those on which they rely?

There are two main types of discovery: automatic discovery and specific discovery.

Automatic discovery

Pursuant to Order 24, rule 1, RHC, parties are required to provide discovery of documents “which are or have been in their possession, custody or power relating to matters in question in the action”. These include documents that are not favourable to the parties’ own cases and may include any paper documents and any electronic data contained in any tapes, discs or other electronic means. Order 24 rule 2(1), RHC requires discovery to take place within 14 days after the close of pleadings (where matters are commenced by writ).

‘Relevance’ in this context has typically been given a wide meaning, and would cover, for example, documents that would assist a party in proving or disproving a matter. However, in the interest of wider case management, the court has express powers under Order 24, rule 15A, RHC to limit the discovery of documents.

Where a party is concerned that some of the documents are privileged, the claim for privilege must be set out in the list of documents[9] and the relevant documents must still be identified. It can then refuse to allow the other party to inspect the documents. 

Specific discovery

Where, after the completion of automatic discovery, a party is of the view that the other party has failed to disclose documents in accordance with the above procedure, it can apply to the court for an order compelling the other party to disclose those documents.[10]

[9] Order 24, rule 5(2), RHC.

[10] Order 24, rule 3, RHC.

6 . Can witnesses be required to attend trial and face cross-examination?

As a general rule, Order 38, rule 1, RHC provides that “any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court”.

Where parties have prepared and filed witness statements, they must ensure that their witnesses are available to attend trial. Where a party is unsure whether its witness will attend the trial, it can consider issuing a writ of subpoena to compel the witness to attend.[11]

[11] Order 38, rule 14, RHC.

7 . What discretion do the courts have in making costs orders?

Generally, costs will follow the event and the unsuccessful party will be ordered to pay the successful party’s costs. However, the court has discretion to make any costs orders it considers appropriate,[12] having regard to matters such as the parties’ respective conduct in the proceedings, whether settlement offers have been made, or the level of success (i.e., whether the successful party had only been partially successful). In rare situations, the court also has the discretion to order costs against a legal representative.[13]

Unless the parties can reach an agreement on the amount of costs to be paid, the amount claimed by the receiving party will have to be assessed (or taxed) by the court, whereby a taxing master will consider the case and the papers and assess the costs claimed by the receiving party.[14]

The receiving party is generally also entitled to interest on any costs from the date of the costs order. However, if the taxing master considers that there has been undue delay in commencing taxation proceedings or in proceeding with the taxation, they may exercise their discretion to disallow interest or reduce the rate of interest or period during which it is payable.[15]

[12] Order 62, rule 3, RHC.

[13] Order 62, rules 8 to 8E, RHC.

[14] Order 62, rule 12, RHC.

[15] Order 62, rule 22(5)(c), RHC.

8 . What are the main types of interim remedies available?

The procedural rules provide for a number of different applications for interim remedies. What is appropriate in each case will be different as each case will develop according to the manner in which the case is defended. 

Default judgment 

A plaintiff can apply for default judgment where the defendant:

  • fails to give notice of intention to defend;[16] or
  • fails to serve a defence within the prescribed time limit.[17]

A defendant may also apply to the court to have an action dismissed if the plaintiff fails to serve a statement of claim within the prescribed time limit.[18]

Summary judgment

Where the defendant serves a defence but the plaintiff considers that the defendant has put forward no arguable defence against its claim, the plaintiff can apply to the court for summary judgment.[19] This application is made by way of summons supported by affidavit setting out the plaintiff’s belief that “there is no defence to that claim or part, […] or no defence except as to the amount of any damages claimed”.[20] To avoid summary judgment being entered against it, the defendant would need to show, primarily, that there is an issue in dispute that ought to be tried.[21] However, summary judgment is not available for certain causes of action.[22]

Security for costs

Plaintiffs based overseas may be subject to an application by the defendant for security for costs. A defendant (or a plaintiff who is a defendant in a counterclaim) can apply for an order for security for costs to be paid by the plaintiff on a number of grounds:

  • the plaintiff is ordinarily resident out of the jurisdiction;[23]
  • the plaintiff is a nominal plaintiff suing for the benefit of another party, and there is reason to believe that it will be unable to pay the defendant’s costs;[24]
  • the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated (unless this was an innocent error and not made with an intention to deceive);[25] 
  • the plaintiff changed its address during the course of the proceedings with a view to evading the consequences of the litigation;[26] or
  • where there is reason to believe that a plaintiff company will be unable to pay the defendant’s costs (e.g., where it is in liquidation).[27]

If one of the above grounds are satisfied, then the court may exercise its discretion to grant security of costs. In exercising this discretion, the court will have regard to all the circumstances of the case, including the merits of the claims.[28]

Other interim measures, such as injunctions, are available to preserve assets and assist with the enforcement of judgments. These are discussed at Question 16 below.

[16] Order 13, rules 1 to 6, RHC.

[17] Order 19, rules 2 to 6, RHC.

[18] Order 19, rule 1, RHC.

[19] Order 14, rule 1, RHC.

[20] Order 14, rule 2(1), RHC.

[21] Order 14, rule 3(1), RHC.

[22] Order 14, rule 1(2), RHC.

[23] Order 23, rule 1(1)(a), RHC.

[24] Order 23, rule 1(1)(b), RHC.

[25] Order 23, rules 1(1)(c) and (2), RHC.

[26] Order 23, rule 1(1)(d), RHC.

[27] Section 905, Companies Ordinance (Cap. 622).

[28] Order 23, rule 1, RHC; See also §23/3/3 of Hong Kong Civil Procedure 2023.

9 . What approach do the local courts adopt with respect to arbitration? What arbitration law applies and is it based on the UNCITRAL Model Law?

Arbitration in Hong Kong is governed by the Arbitration Ordinance (Cap 609) (AO), which came into force in June 2011. The AO is largely based on the UNCITRAL Model Law, with each article of the UNCITRAL Model Law forming a section in the AO, supplemented by details of any modifications which have been included to fit the local context.

Parties cannot unilaterally force the other to arbitrate and therefore there must be a valid arbitration agreement. In most cases, the arbitration agreement is incorporated as part of the contract from which the dispute arose. However, if there is no arbitration agreement in the contract, there can still be a separate arbitration agreement between the parties providing for the dispute to be referred to arbitration.

If one party commences legal proceedings in the court, notwithstanding that such party had previously agreed to arbitration, the other party may apply to court for the proceedings to be stayed in favour of arbitration. The party requesting the stay must show prima facie that there is a binding arbitration agreement.[29] Then, the court will only refuse to stay the proceedings in limited situations, for example:[30]

  • where the party requesting the stay has already submitted its first statement on the substance of the dispute, for example by filing a defence; or
  • if the court considers that the arbitration agreement is null and void, inoperative or incapable of being performed.

Section 12 of the AO provides that the court cannot intervene in arbitration proceedings, except where court intervention is specifically provided for in the AO.

[29] Tommy CP Sze v. Li & Fung (Trading) Ltd [2003] 1 HKC 418; see also L v. M N & Anor [2021] HKCFI 2829.

[30] Section 20(1), AO.

10 . Can arbitrators grant interim relief?

The arbitral tribunal is empowered by section 35 of the AO to grant interim measures pending the determination of the matter, which include injunctions as well as other interim measures and procedural orders such as provision of security and disclosure of documents. 

Section 45 of the AO also specifically allows parties to go to court to seek interim relief in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong. This is particularly valuable for urgent situations because, notwithstanding sections 22A and 22B of the AO which provides for emergency relief, it would be much quicker to make an urgent application to the court.

11 . On what grounds can an arbitration award be appealed?

An arbitrator’s award is final and binding.[31] There is no automatic right to appeal unless the parties have expressly opted for certain provisions. Where the award cannot be appealed, the only other available recourse is an application to the court for the award to be set aside on the grounds set out in section 81 of the AO.

Courts in Hong Kong are generally careful to not be seen to be interfering with arbitration proceedings. The grounds set out above are applied narrowly and the threshold that must be met before an arbitration award can be set aside is high.[32]

[31] Section 73, AO.

[32] LY v. HW [2022] HKCFI 2267.

12 . What international conventions and agreements on enforcement of judgments or arbitral awards is your jurisdiction a party to?

Hong Kong is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Hong Kong is otherwise not a party to any international conventions and agreements dealing with the enforcement of foreign judgments. For a foreign judgment to be enforceable in Hong Kong, it must either be registrable under the limited statutory regime that exists, or recognised under the common law by way of bringing separate proceedings on the judgment. 

13 . What types of judgments in commercial matters are enforceable and what types are excluded?

Domestic judgment 

Generally speaking, all types of domestic judgments can be enforced. Even where a judgment is in the process of being appealed, it is still enforceable unless the defendant applies for a stay of execution.

Foreign judgment

The process of the enforcement of foreign judgments will be discussed below in Question 14 and, generally speaking, only final money judgments can be enforced. Where a judgment is to be registered under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (MJREO), only final money judgments in relation to a commercial contract can be enforced.

Other foreign judgments, such as interlocutory judgments and judgments for non-monetary relief (e.g., specific performance) cannot be enforced in Hong Kong. 

14 . What is the process for registration of foreign judgments and arbitral awards?

In Hong Kong, foreign judgments can either be: 

  • registered under the limited statutory regime; or 
  • recognised under the common law by way of separate proceedings. 

The statutory regime applies in the first instance and where a foreign judgment falls within the scope of the statutory regime it must be registered under it. The common law can only be used when statutory registration is not possible.

Statutory registration

Foreign judgments

Pursuant to the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) (FJREO), an application can be made to the CFI to register a foreign judgment. This judgment must satisfy the following requirements:

  • the judgment must be from a superior court of a designated country (set out in the schedules to the Foreign Judgments (Reciprocal Enforcement) Order (Cap 319A)), and must not be included in the list of excluded proceedings;[33] 
  • the judgment must be final and conclusive as between the parties;[34] 
  • the judgment is for a sum of money (but not in respect of taxes or similar charges), a fine or a penalty;[35]
  • the recognition application must be made within six years of the date of the original judgment, or where there have been proceedings by way of appeal against the judgment, after the date of the last judgment;[36]
  • the judgment must not have been wholly satisfied[37] — if at the date of registration, the judgment has been partially satisfied, it can be registered only in respect of the balance that is still payable;[38] and
  • the judgment must not be enforceable by execution in the country of the original court.[39]

The application is made ex parte to the CFI but the court may direct the matter to be determined inter partes. If the judgment is registered, notice of registration should be served on the judgment debtor and the foreign judgment can be enforced in the same way as a Hong Kong judgment. 

Mainland Chinese judgment

To enforce a judgment granted by a court in any part of China other than Hong Kong, Macau and Taiwan (Mainland Judgment) in Hong Kong, it must be registrable under the MJREO and must satisfy the same requirements under the FJREO with the following modifications:

  • the judgment must be from the Supreme People’s Court, any Higher or Intermediate People’s Court or certain recognised Primary People’s Courts;
  • the judgment is in relation to a commercial contract and was given after 1 August 2008; and
  • the parties to the commercial contract had a written agreement made after 1 August 2008 specifying that the courts in the mainland China have exclusive jurisdiction over the dispute.

The procedure for an application under the MJREO is similar to an application made under the FJREO and is also made ex parte to the CFI. 

Common Law recognition

Other judgments that cannot be registered will have to be recognised at common law. The foreign judgment or award will form the basis of a cause of action and the judgment will be treated as a debt between the parties. 

For a judgment to be enforceable at common law, the following requirements must be met:[40]

  • the foreign judgment must be for a debt or a definite sum of money;
  • the foreign proceedings were not opposed to natural justice;
  • the foreign judgment was not obtained by fraud; 
  • the foreign judgment was rendered by a court of competent jurisdiction; 
  • the foreign judgment was final and conclusive; 
  • the enforcement and recognition of the foreign judgment was not contrary to public policy; and
  • the foreign proceedings were not brought in contravention of an agreement between the parties for the settlement of the dispute and the judgment debtor had otherwise submitted to the jurisdiction of that foreign court.

The practice under the common law is that the judgment creditor will issue proceedings by way of a writ of summons, endorsed with a short statement of claim referring to the foreign judgment. Then, if the judgment debtor acknowledges service of the proceedings, the judgment creditor will make an application for summary judgment. The court will then determine whether the judgment debtor has any bona fide defence (see Question 8 above on summary judgment in general).

Arbitral awards

Section 84, AO states that, with the court’s leave, an arbitration award, whether made in or outside Hong Kong, may be enforced in the same manner as a judgment of the High Court provided there is no pending request to the court to challenge the award.[41]

Leave is obtained by way of ex parte application with an affidavit in support but the court may direct that the application be dealt with inter partes. Leave is not granted as of right but is a matter of judicial discretion. Once leave has been obtained from the court (and where no application has been made for the leave to be set aside), a judgment can then be entered in the terms of the arbitral award.[42]

[33] Section 2(2), FJREO.

[34] Section 3(2)(a), FJREO.

[35] Section 3(2)(b), FJREO.

[36] Section 4(1), FJREO.

[37] Section 4(1)(a), FJREO.

[38] Section 4(4), FJREO.

[39] Section 4(1)(b), FJREO.

[40] §E3/0/5, Hong Kong Civil Procedure 2023.

[41] Section 26(2), AO.

[42] Section 84(2), AO.

15 . Once the judgment or award is registered, what are the available methods of execution?

Once registered or recognised (whichever is appropriate), the foreign judgment will be enforceable in the same way as any Hong Kong judgment. All methods available for the enforcement of Hong Kong judgments would be at the party’s disposal.

The judgment creditor may enforce the judgment by way of one or more of the following:

  • examination order: where the judgment debtor will be cross-examined on oath to disclose information on its assets;
  • charging order: whereby the court imposes a charge on any property or securities owned by the judgment debtor; 
  • garnishee order: where the debt owed by the judgment debtor is attached to a debt owed to the judgment debtor by a third party (the garnishee); 
  • writs of execution: where the bailiff would be directed to execute the judgment by seizing goods, chattels and other property of the judgment debtor; and/or
  • winding-up or bankruptcy proceedings: where the debtor company would be wound up (or the debtor will be bankrupt) and a liquidator (or trustee) will be appointed to examine the asset position of the debtor.

Where the judgment to be enforced is a money judgment, garnishee proceedings are usually the most efficient, especially if the judgment creditor knows that there is sufficient balance in the debtor’s bank account.

16 . What interim measures are available pending enforcement?

There are a number of interim measures that have been developed to assist with the enforcement of judgments.

Disclosure orders

As with many other jurisdictions, disclosure orders such as Norwich Pharmacal Orders[43] and Bankers Trust Orders[44] are available to assist plaintiffs with tracing their assets and proceeds to parties that have stolen or misappropriated or received misappropriated funds and assets. This allows plaintiffs to obtain pre-action evidence against a wrongdoer, which will allow them to pursue the wrongdoers and ultimately enforce judgments against the wrongdoers. 

Where the third party is a bank, the court has an additional power, under section 21 of the Evidence Ordinance (Cap 8), to direct a bank to provide copies of its bankers’ records to a plaintiff to assist them with tracing their assets. 

Mareva injunction

A Mareva injunction is a type of interlocutory injunction that restrains a defendant from removing, transferring, disposing of, dissipating or otherwise dealing assets pending judgment or further order.[45] In granting an application for a Mareva injunction, the court must be satisfied that:

  • the plaintiff has a good arguable case;
  • the defendant has assets within the jurisdiction;
  • there is a real risk of dissipation of the defendants’ assets in such a way that a judgment in favour of the plaintiff would go unsatisfied; 
  • the plaintiff cannot be adequately compensated by an order for damages but where the plaintiff can compensate the defendant or other affected parties for any loss and damages caused by the relief; and
  • the balance of convenience lies in favour of the granting of the relief.

Proprietary injunction 

A proprietary injunction is granted where the plaintiff has a proprietary claim over the defendant’s assets and it is necessary to preserve the assets so that they can be returned to the plaintiff if it is successful in the action. A plaintiff is required to show that there is a serious question to be tried.[46] Unlike the case for a Mareva injunction, the court is not required to be satisfied that there is a risk of dissipation of assets.[47] 

Interim measures in aid of foreign proceedings

Pursuant to section 21M, HCO, the court has jurisdiction to grant interim relief, including Mareva injunctions or proprietary injunctions in Hong Kong, in aid of foreign proceedings.[48] The court will need to be satisfied that: 

  • the facts of the case warrant the grant of the interim relief if the proceedings were brought in Hong Kong; 
  • the judgment to be obtained may be enforced in Hong Kong;[49] and
  • the fact that the court otherwise has no jurisdiction does not make it unjust to grant the relief sought.[50]

Where an ancillary injunction has been obtained under section 21M, HCO, the defendant’s assets will be preserved. When a foreign judgment has been obtained, an application can be made for the enforcement of the same in Hong Kong (see Question 14 above) against the defendant’s assets. 

Prohibition order

This is an order prohibiting a judgment debtor from leaving Hong Kong. The CFI’s jurisdiction to make prohibition orders are provided under section 21B(1) of the HCO,[51] which also sets out the judgments in relation to which a prohibition order can be obtained. As with injunctions, prohibition orders are discretionary reliefs. Prohibition orders are initially granted with a one-month period (but may be extended to up to 3 months).

In deciding to grant a prohibition order, the court must consider the following:[52]

  • whether there is a real likelihood that the judgment debtor will leave Hong Kong;
  • whether there is a real risk that they will not return for a substantial period of time; and
  • whether as a result of their absence enforcement of the judgment would be obstructed or delayed. 

Stop order

Pending enforcement of judgment, judgment creditors may apply for a “stop notice”[53] in relation to securities held by the judgment creditor. This has the effect of preventing any transfer of the securities being registered until 14 days after notice of the proposed transfer has been sent to the judgment creditor.[54]

[43] Originated from Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] AC 133.

[44] Originated from Bankers Trust Co v. Shapira [1980] 1WLR1274 CA.

[45] Section 21L(3), High Court Ordinance (HCO).

[46] American Cyanamid v. Ethicon Ltd. [1975] AC 396.

[47] Zimmer Sweden AB v. KPN Hong Kong Ltd (Unreported, HCA 2264/2013, 2 May 2014).

[48] Compania Sud Americana De Vapores S.A. v. Hin-Pro International Logistics Ltd [2015] HKEC 398.

[49] Section 21M(1)(b), HCO.

[50] Section 21M(4), HCO.

[51] There is a similar provision at section 52E of the District Court Ordinance.

[52] Yue Wah Chuk Richard & Anor v. Mckeon Bredan Hugh (unreported) DCCJ 7088/2003, 24 August 2004, as cited in Questnet LTD v. Kurt Georg Rocco Rinck and Anor (unreported) HCA 1475/2006, 22 February 2008 and CWYJ v. LTYE [2020] HKCA 913.

[53] Order 50, RHC.

[54] Order 50 rule 12, RHC.

Ian De Witt and Natalie Lam

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. 

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