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Separate Opinion of Sir G. Fitzmaurice

I am in entire agreement with the Operational Part (Dispositif) of the Award, which is unanimous, - and except on one cardinal question, I am in substantial agreement with much of the reasoning on which the Award is based. Moreover my difference of view on this particular question, though involving some important points of principle, does not affect my concurrence in the Award as such.
Before coming to this question - which is that of the effect of what are known as the "stabilization" clauses of Aminoil’s Concession Agreements (see paragraph 19 below), I should like to state my position respecting one claim made by the Company which the Tribunal has disallowed, and certain of the claims put forward by the Government of Kuwait. Amongst these are the allegations of "bad oil-field practice" by Aminoil, and tbe Government's claim to recover the sums paid out in discharge of liabilities of the Company still extant at the time of the "take-over". With reference to these two heads of claim I have nothing to add to what is contained in Section VI of the Award. This leaves (a) the question of the validity and effect of what is known as "the 1973 Agreement" and, as part of that question, Aminoil’s claim to recover the moneys raid to the Government under that Agreement; and the Government's claim for sums still unpaid under it at tbe date of the take-over, - and (b) the complex of questions revolving around the interpretation of Article 9 of the Supplementary Concession Agreement of 1961, and the negotiations of 1976-1977 about the effect and application of the"Abu Dhabi Formula", as it is generally known. But in order to avoid needless repetition and unduly extending the length of this Opinion, I shall, for a description of the nature of these various questions and a statement of the facts relating to them, rely mainly on what is contained in the relevant Sections of the Award to which I must be deemed to refer whenever some further explanation seems necessary.

The 1973 Agreement

It is clear, in my view, that Aminoil did, in principle, accept the unsigned and unratified draft Agreement of July 1973, by means of the subsequent Agreement embodied in what is known as tbe 22 December, 1973 Letter addressed by Aminoil to the Minister of Finance and Oil of Kuwait, and counter-signed by him, in the opening paragraph of which, after a mention of certain meetings that had recently taken place, it was explicitly stated on behalf of the Company that

"We accept the 1973 Agreement as drafted in July of this year with language changes agreed at the aforesaid meetings and with the following amendments requested by the Ministry during the aforesaid meetings..."

The December Letter then went on to state, inter alia, that certain new or further payments to the Government, provided for by the draft July 1973 Agreement, would be made by Aminoil "as if" that Agreement was in force - (this was not of course all that the Letter contained, and I shall come back to that).

Given this clear initial acceptance, much of the discussion that took place in the course of the proceedings as to whether there was not, in any event, a subsequent acceptance by conduct, becomes irrelevant, unless it could be shown that the original acceptance was either vitiated by some fundamental flaw in the consent given, or was only of a conditional or temporary (provisional) character. For reasons which I shall give, I have - though with some hesitation - come to the conclusion that neither of these propositions can be established, at least in that form. What can be established is that at a certain point the Company would have been within its rights in giving notice to terminate participation in the July 1973 and 22 December Letter Agreements, or of its intention to make no further payments under these. In fact, however, the Company did not do so. Thus Aminoil’s case in respect of the 1973 Agreement and Letter depends on demonstrating either that the original consent was vitiated ab origine by some fundamental flaw attaching to it and rendering it void ab initio, or that it was given subject to a condition, the non-fulfilment of which operated retroactively to nullify that consent, together with Aminoil’s obligations under the Agreements, - in which event any sums already paid would become repayable by, or recoverable from, the Government, and any sums not already paid would cease to be due.

The issue of Duress

The ground, and sole ground, for contending that Aminoil’s consent was never a truly genuine consent, was that it was obtained under duress. The nature of the allegation is described in paragraphs 40 et seq of the Award, and I agree with the reasons there given for not admitting it. In the case of an entity having transnational interests, and the resources in money, expertise, and legal and technical advice available to Aminoil, the plea of having acted under duress - as that concept is to be understood in strict law - is not an easy one to sustain, - at least the presumption is contra. That the Company was under constraint - strong economic constraint - is not open to doubt. But the essence of this constraint - so it seems to me -was not so much any direct Government threat of a "shut-down" (though a latent threat of it unquestionably existed), as Aminoil’s own natural desire -and hence long-term policy - of wanting to continue to operate in Kuwait, if it was at all possible to do so on reasonable terms. In consequence, however unwillingly, and even if they felt that their hand was being forced, they were prepared in the last resort to accept demands they regarded as unjustified, provided these would still leave them with the possibility of going on operating at a worth-while, even if relatively exiguous, profit. The picture is not an agreeable one, - all the cards were in the Government’s hands which - as was of course its legal right - took full advantage of that. But such was the situation, and in my view it cannot be said to have amounted to a situation of duress in law. This is not the place to enter into a dissertation on the technicalities of what constitutes legal (that is to say illicit) duress; but there is one other point that needs to be noticed.
However onerous the terms of the 1973 Agreement and Letter may have seemed at the time, the explosion in oil prices consequent upon the increases decreed by OPEC in the autumn of 1973 led, before long, to such greatly increased profits for the oil Companies (Aminoil amongst them) as entirely to change the de facto situation. Government demands, conformity with which had entailed a sacrifice, now became, financially, relatively easy to comply with. This could not of course affect matters de jure if the original consent had indeed been given under duress. But it could not implausibly be said that the continuing acceptance sub-silentio of markedly greater profits, though it did not act as a sort of exculpation or condonation of Government pressure, did take a good deal of the force out of the complaint. This consideration, while not being the ground of my view that the plea of duress cannot be sustained, does come as a reinforcement of it.

The issue of conditional or provisional acceptance

What was undoubtedly regarded by Aminoil as constituting the quid pro quo for their acceptance of the increased payments and other liabilities stemming from the July 1973 Agreement and 22 December Letter was expressed as follows :

"It is our understanding that the [July] 1973 Agreement will be signed as soon as the final documents can be prepared, and that you [the Minister] will then take appropriate steps to obtain due ratification thereof."

It was further added that the Company would be obliged if the Minister would signify his agreement "with the foregoing amendments and procedures by signing and returning the accompanying copy of this letter". This the Minister duly did, - but the July 1973 Agreement remained unsigned and unratified.

There can be no doubt that these clauses (the "understanding" clauses of the Letter) embodied the hope and expectation of Aminoil that the signature and ratification of the July 1973 Agreement would now be proceeded with, - and this was of genuine importance to Aminoil as a quid pro quo - for the reasons stated in the footnote below1. The question is however, whether these clauses amounted to the expression of a condition of the Company’s own acceptance of the obligations involved - a condition such that its non-fulfilment would not only release Aminoil from those obligations, but even render the Company's original acceptance of them void ab initio - so as not only to cancel any obligation to continue making payments, but also to impart a provisional character to all previously made payments, and cause them to become refundable.
I find it extremely difficult to read such far-reaching effects into the actual language of these clauses. That they were intended to convey an intimation of that kind, or that it was hoped they would do so, can well be believed (and also that the Minister understood matters in that sense), -but that is a different thing from the statement of a condition in law. It is equally a different thing from the question I come to later, of whether the eventual withholding of the quid pro quo caused Aminoil’s obligations under the December Letter to cease as from the moment when such withholding could be deemed to have become an accomplished fact, so that further payments thenceforward stopped being due. But assuming this to be the case, it would still have no retrospective effect such as to make previous payments repayable.
It is easy to see why Aminoil were not more explicit in the December Letter: they knew, or feared, that nothing more explicit would be accepted. This, however, only serves to put the matter on the same sort of footing as that of the question of duress, already discussed above. The Company were under great pressure to accept the July-December 1973 terms, and were afraid of a shut-down if they did not. But as these terms still allowed them to operate at a profit, it was preferable to accept them and not attach any condition to that acceptance which the Government would almost certainly reject. They therefore fell back, even if with misgiving, on expressions of "understanding" that could not be said to amount to an actual condition.
Several considerations, without being in any way decisive in themselves or even, strictly, considerations of law, nevertheless serve to reinforce the view above expressed :

(a) There is the point made in paragraph 6 above, in connection with the question of duress, and equally applicable here. The increased price of oil, and hence greatly increased profits of the Company as from late 1973, reconciled it to the increased amounts payable to the Government under the December Letter, and make it less likely that those payments were being made - or were continuing to be made - on a purely conditional basis.

(b) The Company does not seem to have accompanied any actual payment with a concrete statement that it was conditional or provisional. It did, at least on occasion, mention that the payment was made subject to the "understanding" clause of the December Letter, - but this could not retroactively impart to that clause any character other than it originally had. It could only operate as a reminder to the Government of the action it was supposed to take under this clause, and was not yet taking, and this could have an effect I shall state later, but not the effect of testifying to it being a positive condition of the validity of the agreement that such action must be taken.

(c) Shortly after the December 1973 Letter - that is to say in February 1974 - a "final draft" of the July 1973 Agreement was drawn up, incorporating changes already agreed, and certain new ones; and on several occasions later in the year further changes were made to give effect to additional Government demands (see Section IV paragraph 29 of the Award). On none of these occasions did Aminoil use the opportunity for the purpose of pointing out that the payments they were, or would be, making, were subject to a condition that would nullify their acceptance if the condition remained unfulfilled. Again, it is easy to see why, but not possible to regard such a condition as having nevertheless been implied.

(d) Article 6 of the Supplemental Concession Agreement of 1961 bad provided that no moneys paid to Kuwait "under this Agreement" should, except if there had been an accounting error, "be returnable in any circumstances whatever." It was a question, in the course of the proceedings, whether the words "under this Agreement" in the 1961 Agreement, also operated in respect of payments made under the 1973 Agreements. For present purposes it may be assumed that they did not. Nevertheless the existence (well known to both sides) of this provision in the 1961 Agreement which was still in full force, except as subsequently amended, makes it unlikely that, in December 1973, any real credence could have been given to the possibility that there might be an eventual refund of moneys paid by Aminoil -at least in the sense of attributing to such payments the character of amounts transferred subject to a condition of repayment in certain circumstances.

None of this applies to the quite different question, not of Aminoil’s right to recover payments already made, but of whether they were under any obligation to continue to pay, once it had become evident that the quid pro quo, the contractual consideration, specified in the "understanding" clauses of the December 1973 Letter, was not going to be forth-coming. This affects the question of the Government's right to receive the payments which Aminoil de facto ceased to pay in or after January 1977, and thence up to the date of the take-over in September of that year. It must have been clear, well before this period, and after the lapse of several years since the date of the December Letter, either that the Government did not intend to take the steps contemplated by that Letter, or that the delay in doing so was such as to come to the same thing in practice. This failure of consideration would, in my view, have entitled the Company to give notice to terminate the Agreement, or at least all payments obligations under it, or to declare an intention to cease payment. None of this did the Company do. However, since this is not the place for a dissertation on the law relating to the termination of contracts, I will refer to the summary statement contained in the footnote below2, the resultant of which is that, before a right could arise to treat the 1973 Agreements, or the obligation to make payments under them, as being terminated or suspended, notice to that effect had to be given to the Government, - and this was never done. Once more, it is evident why -but the fact remains.
I am obliged therefore, though with regret3, to conclude that Aminoil remained bound, and liable for the payments still due at the date of the take-over for the period January - September 1977.

Article 9 of the 1961 Concession Agreement, and tbe Abu Dhabi "Formula"

About this matter, I need say very little. Basically I entirely agree with the view put forward by Aminoil concerning the interpretation of Article 9 of 1961, the text of which will be found in paragraphs (xxxiv) and 15 of the Award, - namely that, in the absence of bad faith or other laches on either side, the failure of the Parties to reach agreement created a situation of "no-change" in which matters (including existing rights and obligations) simply went on as before - unaffected. Strictly, this is not altered by the fact that tbe disagreement bore, not on the principle of applying tbe Abu Dhabi Formula in one way or another, but on the method of its application, - because, of course, that was the whole problem: if the Parties could not agree on that, then they could not agree - period, - and matters must continue as they were.
Such was the strictly legal position I believe. Nevertheless, in the particular circumstances of this case, I find it very hard (although some of the reasoning might not have been mine) to dissent from the conclusion reached in the Award, which is based on the view that, the principle of something being due on Abu Dhabi account having been conceded, -which could of course only take the form of increased payments to the Government, and correspondingly diminished profits for Aminoil (though these must not fall below a "reasonable rate of return") - the Tribunal was competent to assess what these payments ought to be, on the basis of what, in the words of Article 9, "would be equitable to the Parties", taking account of the various factors specified in the Article; and given that this course had been requested by one of them and, after an initial objection, and some hesitations, more or less tacitly accepted by the other.
Whatever may be thought of such a provision as Article 9, in the abstract, the Company did agree to it as far back as 1961 when it was not under any particular pressure from the Government, and had since then agreed to or conceded various changes in the concessionary situation for which the so-called "adaptation clause", Article 9, furnished the basic vehicle, - while in connection with the Abu Dhabi "Formula" there could be no doubt that, in the words of the Article, "increase in benefits to Governments in the Middle-East" had "come generally to be received by them", as a "result of changes in the terms" of existing or new concessions, and that the "formula" itself has led to such changes in other concessions. This was conceded by the Company.
Given this situation, I must admit that it would only be on tbe basis of a somewhat extreme, very rigid, and not wholly incontestable view of the law, that the conclusion should be reached that a failure to agree about figures (for that is what it really was) must ring down the final curtain on Article 9, so far as Abu Dhabi is concerned - if an alternative course, such as that followed by the Tribunal in the Award, is available. That the Government ought to have invoked one of the arbitration clauses of the Concession Agreements, instead of, as it ultimately did, acting unilaterally, does not, I think, affect the substance of this question.
I come to this conclusion with regret for the same sort of reasons as those stated in footnote 3 above. There was never any "equality of arms" between Aminoil and the Government. On several occasions the Company made what it seems to me were reasonable offers on Abu Dhabi account, but none of these were accepted by the Government, which required payments that, in the Company’s view, would have made its undertaking hardly worth while going on with. It is a sorry story, but I must leave it

The "stabilization clauses" of the Concession Agreements : Article 17 of 1948 and, via 7(g) of 1961, new Article 11 of 1948

It may be argued that if the view which I take about the effect of the stabilization clauses is correct, it should logically lead - after one or two corners are turned - to a right for Aminoil to recover the whole of the discounted net profits they would have received if their Concession had continued for its full term until 2008. However, quite apart from the fact that these figures are based on the 1961 arrangements, rather than on those of 1973 which the Tribunal has found to be binding (and see paragraph 154 (a) of the Award) -other factors and elements have to be taken into account, as well as questions of realism, - so that my disagreement is not over the final figure of the Award, with which I concur, but over the principle of the interpretation of the stabilization clauses, - and here again, I am willing to concede the possibility (though, as will be seen, it is not in fact my view) that Aminoil’s case had features that might take it out of the application of the normally accepted principles of interpretation.
Although the texts of the stabilization Clauses will be found in paragraphs (xxiv), (xxxiii) and 88 of the Award, it will be convenient to reproduce them here. As stated in the Award, Article 11 of the 1948 Concession (as amended by Article 7(g) of the Supplemental Concession of 1961) - after indicating in a first paragraph (A) certain events (not here relevant) in which the Ruler of Kuwait would be entitled to terminate the Concession, went on in a second paragraph (B) to state

"(B) Save as aforesaid this Agreement shall not be terminated before the expiration of the period specified in Article 1 thereof except by surrender as provided in Article 12 or if the Company shall be in default under the arbitration provisions of Article 18."

More important still, Article 17 of the 1948 Concession provided that

"The Shaikh shall not by general or special legislation or by administrative measures or by any other act whatever annul this Agreement except as provided in Article 114. No alteration shall be made in the terms of this Agreement by either the Shaikh or the Company except in the event of the Shaikh and the Company jointly agreeing that it is desirable in the interest of both parties to make certain alterations, deletions or additions to this Agreement."

Furthermore, in case there could be any doubt as to whether such a provision as Article 17 of 1948 was freely accepted by the Ruler, not only was the Supplemental Agreement of 1961 concluded after the attainment of full sovereign independence by Kuwait, -not only did its Article 7(g) introduce a new and explicit stabilization clause (amending Article 11 of 1948, as set out above), - but in addition, the concluding provision of the 1961 Agreement in terms kept in force all unamended provisions of 1948, expressly stating that

"This [1961] Agreement shall be construed as an amendment and supplement to the principal Agreement [i.e. the 1948 Concession] and all provisions of the principal Agreement shall continue in full force and effect except in so far as they are inconsistent with or modified by this [1961] Agreement" - (stress added).

Thus Article 17 remained in force, and at no time, right up to the take-over in 1977, or until the present proceedings, was its validity, or that of Article 11, called in question by the Government.

The Award however holds that, despite their unambiguous language, these provisions did not operate to prevent an eventual nationalisation by unilateral legislative act - or at least, that whatever tbe original position, they bad ceased to do so by the date of the take-over in 1977 - (this is probably the vital point in the reasoning). I must therefore consider the grounds given for this view. Over-simplifying a little for the sake of brevity, but not, I hope unfairly, the view taken in the Award seems to rest on five or six main propositions. They can be summarized as follows : -

(1) A prohibition on the termination of a contract, where it takes the form of a nationalisation on grounds of public interest (whether real or purported5), must be provided for expressly, and cannot be left to be inferred from a general prohibition on termination, even one expressed in such explicit and comprehensive language as that of the stabilization clauses of Aminoil’s Concession.

(2) The danger that the stabilization clauses were really intended to protect the Company against was that of a confiscatory termination and

(3) A termination and take-over accompanied by, or by an offer of, monetary compensation is not confiscatory.

(4) Since the Government in the present case made such an offer, and set up a Ministerial Committee to deal with the matter, which it eventually agreed to refer to arbitration, no confiscatory element inconsistent with the stabilization clauses is involved.

(5) Even if the above propositions could not be sustained, the character of the Concession had changed so much by 1977 that the stabilization clauses no longer retained their original absolute character.

(6) A variation of (5) really: Aminoil’s case was, or had become, one of "special" circumstances" justifying departure from normal rules.

I regret that I cannot subscribe to any of these propositions - at least in the sense in which they are intended to be understood here - although the last two (basically different ways of saying the same thing) are arguable, and not without plausibility. Before going further, however, I ought to make two Points clear :

(a) My view of the stabilization clauses does not in the least imply that in time of war or other crisis or national emergency, they could stand in the way of such exceptional measures as might then be needed. But in the case in hand, no emergency of any kind is involved.

(b) Nor are my views in any way directed against the right to nationalise, as such. But that is not the real question here. The question here is not that of the right to nationalise -"period" - i.e. in abstracto - but of the right to nationalise in the face of a contractual undertaking not to do so, if that exists; or more accurately, in terms of the present case, to nationalise where this involves terminating a concession before its time in spite of a provision to the contrary. The Award (paragraph 96) deals with this point - a little obliquely perhaps - by saying that although the stabilization clauses cannot prevent a nationalisation as such, they are not thereby voided of effect or rendered objectless: they still prohibit confiscatory measures, and in the case of nationalisation require it to be accompanied by (adequate6) compensation. However, this is really only a different way of putting propositions (2) and (3) supra : and I will now give my views on these and the other three propositions listed in paragraph 21.

As to proposition (1)

I know of no general legal principle - (there may be special rules for particular cases) - which would require something to be expressly stated rather than left to be implied from representative language clearly covering it according to normal canons of interpretation; or rather, and more correctly, which would prohibit something from being inferred from such language merely because it was not expressly stated.

As to proposition (2)

There is absolutely nothing in the stabilization clauses to warrant the view that they were intended to be confined in the manner suggested -i.e. to the case of confiscatory measures only. These clauses are not really concerned with confiscation at all, in the direct sense. What they are concerned with is any measure terminating the Concession before its time. In that respect, it would be difficult to imagine language (or draft it) that would more effectively combine the notions of the comprehensive and the specific:"... shall not by general or special legislation or by administrative measures or by any other act whatever annul this Agreement..." (stress added). The existence of the casus foederis is so clear that it would not even be necessary to invoke the phrase I have underlined - "or by any other act whatever", - for Kuwait Decree Law n° 124, operating the take-over, was unquestionably either a piece of "special legislation" or an "administrative measure", or partook of both. Moreover, the Decree Law was essentially an act of termination of the Concession - for it was entitled "Decree Law n° 124 Terminating the Agreement between the Kuwait Government and Aminoil", and its Article 1 provided that "The concession granted to the American Independent Oil Company in accordance with the aforementioned Agreement dated 28 June 1948 [the 1948 Concession] shall be terminated". Whatever other aspects the Decree Law had therefore, there can be no doubt as to its status (in terms of Article 17) as a "legislative" or ’"administrative" measure "annulling" the Concession. Ensuing explanations contained in the Decree Law itself, or in accompanying or subsequent instrument or statements, as to why it was considered necessary to take this step and transfer Aminoil’s undertaking into State ownership, cannot alter this position.
In my opinion, so far was it from being the case that the Parties in 1948 had not got the eventuality of an ultimate nationalisation in mind, that I feel confident that, at least on Aminoil’s side, it was precisely one of the principal contingencies foreseen as possible. The language of Article 17, though general, smacks strongly of it. Historically also, its; but I give my reasons for thinking so in the footnote below7, rather than hold up the further discussion.

As to propositions (3) and (4)

It is an illusion to suppose that monetary compensation alone, even on a generous scale, necessarily removes the confiscatory element from a take-over, whether called nationalisation or something else. It is like paying compensation to a man who has lost his leg. Unfortunately it does not restore the leg. When a Company such as Aminoil procures the insertion in its Concession of a clause like Article 17, its aim is not to obtain money if the Article is breached, but to guarantee if possible that it is not breached. What the Company wants is to be able to go on operating its Concession for the agreed term, not to be compensated for having to cease doing so against its will8. In being deprived of the right to go on, all sorts of factors enter in that are not simply financial. In this respect, businesses are very like human beings, who do not relish being compulsorily retired and relegated to the side-lines with all the loss of raison-d’être that this is liable to involve, even though it may be accompanied by a "golden handshake". Nationalisation, or any other form of take-over, is necessarily confiscatory in the sense that, irrespective of the wishes of the legal owner, it dispossesses him of his property and transfers it elsewhere. Nationalisations may be lawful or unlawful, but the test can never be whether they are confiscatory or not; because by virtue of their inherent character, they always are.

As to propositions (5) and (6)

Here the Award bases itself on an interesting and substantial argument. It is not a plea of rebus sic stantibus - namely that a fundamental change of circumstances has invalidated or rendered void the original contract or contractual obligation. The argument is that the contract itself, and the contractual obligation, has changed over the years by reason of the conduct of the Parties relative to it. As a result of this process, the stabilisation clauses -even on the assumption that they originally prohibited nationalisation prior to the expiry of the prescribed term - had, by 1977, lost their former absolute character, and had ceased to do so.
The validity of such an argument must necessarily depend on showing that the process of change concerned was brought about by mutual consent: other-wise the argument is merely circuitous and self-serving. The relevant paragraphs of the Award show that changes did indeed occur, and what the process of this was. But even ignoring the question of how far Aminoil’s consents were voluntary, rather than due to the force of circumstances, the argument seems to me to break down in one crucial respect: what-ever changes were consented to by the Company, and whatever the quality of that consent, they were changes that were to take place within the framework of a continuing Concession - not of one that was to come, and did come, to an end without any such consent, but by the sole will of the other Party. It was change, not termination that Aminoil agreed to. The most that can be said is that by making offers -as they did at certain stages (but these were not accepted by the Government) - to renounce the normal and traditional concessionary benefits, namely the right to retain all the profits remaining after what was owing to the State had been paid, - and by proposing to reduce the Concession to something more like a contract of service, the Company recognized that (given the demands of the Government) the Concession was not sustainable on its original basis. So they agreed to changes, - but they did not agree to any change that would enable the Government to terminate it unilaterally. At one stage (see Award, paragraphs 60 to 66) the Company seems to have had recourse to the ultimate expedient of offering to renounce the Concession entirely - subject of course to agreement about compensation. The offer was not accepted by the Government, - but even had it been, the case would have been one of an agreed termination, on the basis of agreed compensation - not of a unilateral termination on the Government’s terms (and here footnote 8 above is also relevant).
In short, whatever diminution of force the Concession suffered, it was not a diminution of force that touched the stabilization clauses. Thus, to put the matter in terms of proposition (6) above, however much Aminoil’s case had become one of special circumstances justifying some departure from the normal rules, they were not circumstances affecting the continued force of the stabilization clauses of the Concession.
In consequence, and while I naturally hesitate to differ from a view so skilfully constructed and persuasive as that contained in the Award, good faith and my professional conscience compel me to conclude that although the nationalisation of Aminoil’s undertaking may otherwise have been perfectly lawful, considered simply in its aspect of being an act of the State, it was nevertheless irreconcilable with the stabilization clauses of a Concession that was still in force at the moment of the take-over.
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