383:. The alternative, where a creditor has to pay all its debts, but receives only a limited portion of the leftover moneys that other unsecured creditors get, poses the danger of 'knock-on' insolvencies, and thus a systemic market risk. Even still, three core reasons underpin and justify the use of set-off. First, the law should uphold pre-insolvency autonomy and set-offs as parties invariably rely on the pre-insolvency commitments. This is a core policy point. Second, as a matter of fairness and efficiency both outside and inside insolvency reduces negotiation and enforcement costs. Third, managing risk, particularly systemic risk, is crucial. Clearing house rules offer stipulation that relationships with buyer and sellers are replaced by two relationships between buyer and clearing house, and seller and clearing out. The effect is an automatic
523:: sometimes referred to as a banker's right to combine accounts, this is a special form of set-off which is implied into contractual agreements with bankers and allows banks to offset sums in one account against another account which is overdrawn from the same client. However, the right cannot be exercised if one of the accounts is a loan account, or if the bank has agreed not to exercise the right, or if the bank has notice that the sums in the account are for a specific purpose, or on trust for another party. It is said to derive from a
313:, settlement netting is only possible in relation to like-obligations having the same settlement date. These dates must fall due on the same day and be in the same currency, but can be agreed in advance. Claims exist but are extinguished when paid. To achieve simultaneous payment, only the act of payment extinguishes the claim on both sides. This has the disadvantage that through the life of the netting, the debts are outstanding and netting will likely not occur, the effect of this on insolvency was seen in the above-mentioned
267:, forwards or options. The effect is that the netting avoids valuation of future and contingent debt by an insolvency officer and prevents insolvency officers from disclaiming executory contract obligations, as is allowed within certain jurisdictions such as the US and UK. The mitigated systemic risk which is induced by a close out scheme is protected legislatively. Other systemic challenges to netting, such as regulatory capital recognition under
1198:
579:
545:, mutual debts are automatically set-off. This is a mandatory operation in bilateral situations. Whether the debt is liquidated or unliquidated does not matter, and the set-off will apply to future or contingent claims if the debts are provable. Insolvency set-off operates on liquidation and administration, where the administrator gives notice of his intention to make a distribution.
206:(outlined below) because the fusion of both claims into one, producing a single balance, occurs immediately at the conclusion of each subsequent contract. This method of netting is crucial in financial settings, particularly derivatives transactions, as it avoids cherry-picking in insolvency. The effectiveness of pre-insolvency novation netting in an insolvency was discussed in
484:: outside of litigation, where two mutual claims arise out of the same matter or a sufficiently closely related matter, the claims will set off in equity, but only if it would be unjust to enforce one claim and not the other. Both sums must be due and payable, but may be for liquidated or unliquidated sums. Unlike
643:
See, e.g., United States v. Munsey Trust Co., 332 U.S. 234, 239, 67 S.Ct. 1599, 1601, 91 L.Ed. 2022 (1947) ("government has the same right 'which belongs to every creditor, to apply the unappropriated moneys of his debtor, in his hands, in extinguishment of the debts due to him' " (quoting
Gratiot v.
374:
of a company. This means that, for each party which is both a creditor and debtor of the insolvent company, mutual debts are set-off against each other, and then either the bankrupt's creditor can claim the balance in the bankruptcy or the trustee in bankruptcy can ask for the balance remaining to be
366:
shield, but not a sword. Upon judgment, both claims are extinguished and replaced by a single net sum owing (e.g. If Party A owes Party B 100 and Party B owes Party A 105, the two sums are set off and replaced with a single obligation of 5 from Party B to Party A). Set-off can also be incorporated by
187:
Suppose that on Monday, 'A' and 'B' enter into transaction 1, whereby A agrees to pay B ÂŁ1,000,000 on
Thursday. On Tuesday A and B enter into transaction 2, whereby B agrees to pay A ÂŁ400,000 on Thursday. Novation netting takes effect on Tuesday to extinguish the obligations of the parties under both
140:
The primary objective of netting is to reduce systemic risk by lowering the number of claims and cross claims which may arise from multiple transactions between the same parties. This prevents credit risk exposure, and prevents liquidators or other insolvency officers from cherry-picking transactions
500:
looked at claims by two companies in relation to two contracts between them, one to supply goods, and the other to install them, which had been separately awarded. The court found sufficient connection between the two contracts to allow the claim under the installation contract to be set off against
361:
Set-off, also sometimes "set off", is a legal event and therefore legal basis is required for the proposition that two or more gross claims are to be netted. Of these legal bases, a common form is the legal defense of set-off, which was originally introduced to prevent the unfair situation whereby a
390:
The right to set off is particularly important when a bank's exposures are reported to regulatory authorities, as is the case in the EU under financial collateral requirements. If a bank has to report that it has lent a large sum to a borrower and so is exposed because of the risk that the borrower
131:
The law does not permit counter-parties to use third party debt to set off against an un-related liability. All forms of set-off require mutuality between claim and cross claim. This protects property rights both inside insolvency and out, primarily by ensuring that a non-owner cannot benefit from
549:
The five types of set off are extremely important as a matter of efficiency and of mitigating risk. Contractual set offs recognised as an incident of party autonomy whereas banker right of combination is considered a fundamental implied term. It is an essential aspect for cross-claims, especially
430:
ruled that "when a claim is made by a
Contractor for the price of work and labour done, the Owner is entitled, in the absence of a provision in the Contract to the contrary, to set-off against the amount claimed any damages which he has suffered as a result of the Contractor's breach of the
492:(1848) was an established leading case which held that equitable set-off was available as a defence when "the title of the Plaintiff to his demand is impeached", for example when a contractual claim for payment is made but the debtor makes a claim for unliquidated damages. The 2010
362:
person ("Party A") who owed money to another ("Party B") could be sent to debtors' prison, despite the fact that Party B also owed money to Party A. The law thus allows both parties to defer payment until their respective claims have been heard in court. This operated as an
644:
United States, 40 U.S. (15 Pet.) 336, 370, 10 L.Ed. 759 (1841))); see also
Tatelbaum v. United States, 10 Cl.Ct. 207, 210 (1986) (set-off right is inherent in the United States government and grounded on common law right of every creditor to set off debts).
224:
An effective close-out netting scheme is said to be crucial for an efficient financial market. Close out netting differs from novation netting in that it extends to all outstanding obligations of the party under a master agreement similar to the one used by
635:
See De Magno v. United States, 636 F.2d 714, 727 (D.C. Cir. 1980) (district court had jurisdiction over claim involving VA's “affirmative action against an individual whether by bringing an action to recover on an asserted claim or by proceeding on its
245:
to choose which contracts to enforce and which not to (and thus potentially "cherry pick"). There are international jurisdictions where the enforceability of netting in bankruptcy has not been legally tested. The key elements of close out netting are:
391:
might default, thereby leading to the loss of the money of the bank or its depositors, is thus replaced. The bank has taken security over shares or securities of the borrower with an exposure of the money lent, less the value of the security taken.
240:
or, if otherwise specified in the contract or if it is not possible to obtain a market value, at an amount equal to the loss suffered by the non-defaulting party in replacing the relevant contract. The alternative would allow the
216:, novation netting is only possible if the obligations have the same settlement date. This means that if, in the above example, transaction-2 was to be paid on Friday, the two transactions would not offset.
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when there exits overlapping obligations. Common features of set-off are that they are confined to situations where claim and cross claim are for money or reducible to money and it requires mutuality.
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208:
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or any other relevant event of default specified in the relevant agreement if accelerated (i.e. effected), all transactions or all of a given type are netted (i.e. set off against each other) at
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309:
or multilaterally and on related or unrelated transactions. Obligations are not modified under settlement netting, which relates only to the manner in which obligations are discharged. Unlike
156:
Since claims are a major form of property nowadays and since creditors are often also debtors to the same counterparty, the law of set off is of paramount importance in international affairs
511:
master agreement is an example of this type, which is ineffective against an insolvent party but is often used to address pre-insolvency credit risk and reduce the need for collateral.
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prevents court action to recover overpayment after 6 years, but legislation enacted in 1983 allows overpayments to be recovered by "administrative setoff" for up to ten years.
988:
527:; however, this is misleading as it is only available where both accounts are maintained in the same capacity. Difference in currency will not prevent this right, however.
942:
BIFA standard trading condition 21(A), which refers to payment being due "without reduction or deferment on account of any claim, counterclaim or set-off", quoted in
149:
At least three principal forms of netting may be distinguished in the financial markets. Each is heavily relied upon to manage financial market, specifically credit,
348:: A settlement system in which each settling participant settles its own multilateral net settlement position (typically by means of a single payment or receipt).
321:
transactions as they reduce the number and volume of payments and deliveries that take place but crucially does not reduce the pre-settlement exposure amount.
123:. Therefore, netting or setting off gross positions involves the use of offsetting positions with the same counter-party to address counter-party credit risk.
960:
470:
in a court action are both liquidated sums or ascertained with certainty. This is wider than insolvent set-off, but the claim and cross claim must be mutual
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Similar methods of close out netting exist to provide standardised agreements in market trading relating to derivatives and security lending such as
597:
387:, meaning all elements are internalized in current accounts. This can be in different currencies as long as they are converted during calculation.
63:
Any balance remaining due either of the parties is still owed, but the mutual debts have been set off. The power of net positions lies in reducing
474:
liquidated. In such cases the court will simply set-off the amounts and award a net sum. The two claims do not need to be intrinsically connected.
508:
226:
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332:: A settlement system in which every individual bilateral combination of participants settles its net settlement position on a bilateral basis.
866:
256:
conversion of non-cash obligations into debts; meaning obligations to deliver non-cash assets are converted to market price equivalents; and
1218:
823:
Report from the
Commission to the Council and European Parliament, Evaluation Report on the Financial Collateral Arrangements Directive
1213:
183:
involves amending contracts by the agreement of the parties. This extinguishes the previous claims and replaces them with new claims.
395:
1175:
442:. The judge's ruling made reference to both statutory or legal set-off, and equitable set-off, which apply under Canadian law.
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contractual agreement so that, where a party defaults, the mutual amounts owing are automatically set off and extinguished.
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493:
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615:
42:, replacing gross positions with net positions. It permits the rights to be used to discharge the liabilities where
39:
275:
has been resolved largely through trade association lobbying for law reform. In
England and Wales, the effect of
976:
54:, the result being that the gross claims of mutual debt produce a single net claim. The net claim is known as a
911:
Louise
Gullifer, Goode and Gullifer on Legal Problems of Credit and Security (Sweet & Maxwell, 7th ed) 2017
427:
423:
1162:
435:
1126:
188:
transaction 1 and 2, and to create in their place a new obligation on A to pay to B ÂŁ600,000 on
Thursday.
1251:
434:
Armenia Rugs/Tapis v. Axor
Construction Canada, an Ontario case relating to sub-contracted work on the
370:
In certain jurisdictions, including the UK, certain types of set-off take place automatically upon the
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which allows netting in situations which are in relation to money market contracts. In regard to the
744:
507:, made by express agreement: often netting will arise through express agreement to the parties. The
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paid, depending on which side owed the most. This principle has been criticized as an undeclared
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There are financial regulations pertaining to netting set out by certain trade associations. The
67:, and also offers regulatory capital requirement and settlement advantages, which contribute to
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1241:
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60:. In other words, a set-off is the right of a debtor to balance mutual debts with a creditor.
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229:. These traditionally only operate upon an event of default or insolvency. In the event of
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Equitable Set Off of Claims in
England: When Separate Contracts May Be Close Enough
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242:
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The regulation of close out netting in the new member states of the European Union
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is a legal technique applied between persons or businesses with mutual rights and
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the accretion of the time for performance of obligations to the time of default
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745:"Risk Management in Netting schemes for settlement of securities transactions"
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20:
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640:”) (discussing similar language of predecessor statute, 38 U.S.C. § 211).
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See the Financial Collateral Directive (Directive 2002/47/EC, Art 2(1)(n)
452:
278:
British Eagle International Airlines Ltd v Compagnie Nationale Air France
209:
British Eagle International Airlines Ltd v Compagnie Nationale Air France
64:
1222:. Vol. 24 (11th ed.). Cambridge University Press. p. 703.
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National Westminster Bank Ltd v Halesowen Presswork & Assemblies Ltd
1005:
961:
Canada: Effect Of Consultant Certifying Application For Progress Payment
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533:: perhaps the most expensive form of set off. Under section 323 of the
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371:
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43:
455:, there are broadly five types of set-off which have been recognised:
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THE BASICS: WHAT IS SET OFF AND WHEN DOES THE RIGHT TO SET OFF ARISE?
47:
1039:
Joanna Benjamin, Financial Law (2007, Oxford University Press), p274
856:
Joanna Benjamin, Financial Law (2007, Oxford University Press), p274
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are often used interchangeably, a legal distinction is made between
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Withholding of progress payment by general contractor deemed unfair
466:, also known as statutory set-off: this arises where a claim and a
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294:
268:
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This article incorporates text from a publication now in the
91:, which describes the procedure for and outcome of implementing a
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B-211213: The Department of Labor -- Request for Advance Decision
290:
845:
Title Finance, Derivatives, Securitisation, Set off and Netting
718:
Title Finance, Derivatives, Securitisation, Set-off and Netting
674:
Halesowen Presswork & Assemblies Ltd v Westminster Bank Ltd
439:
163:
Title Finance, Derivatives, Securitisation, Set off and Netting
1182:, page 4, published 21 April 1983, accessed 1 September 2022
950:, EWCA Civ 18 (20 January 2011), accessed 23 September 2022
700:
Goode and Gullifer on Legal Problems of Credit and Security
398:(BIFA) standard trading conditions do not permit set-off.
74:
27:
99:
describes the legal bases for producing net positions.
1059:, published 3 August 2010, accessed 13 September 2022
995:, published 1 January 2006, accessed 14 November 2022
963:, published 27 August 2008, accessed 9 December 2020
305:
For cash settled trades, this can be applied either
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may be too technical for most readers to understand
141:which may be profitable for the insolvent company.
1152:Rules 14.25 and 14.25 of the Insolvency Rules 1986
873:, published 6 August 2019, accessed 1 October 2022
733:(2016, Cambridge University Press, Third edition)
271:and other Insolvency-related matters seen in the
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785:ISDA 2002 Master Agreement, Section 2(1)(a)(iii)
115:describes judicially-recognised grounds such as
1030:(Fourth Edition, Sweet & Maxwell 2013), 278
924:(Fourth Edition, Sweet & Maxwell 2013), 278
496:case involving Geldof Mettalconstructie NV and
1110:Barclays Bank Ltd v Quistclose Investments Ltd
19:"Netting" redirects here. For the fabric, see
825:(2002/47/EC), 2006, COM (2006) 833 final, 10
281:has largely been negated by Part VII of the
1163:Financial collateral - Directive 2002/47/EC
847:, (London: Sweet & Maxwell, 1995),153-5
742:
720:, (London: Sweet & Maxwell, 1995), 189
401:
616:Learn how and when to remove this message
600:, without removing the technical details.
396:British International Freight Association
165:, (London: Sweet & Maxwell, 1995), 72
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1229:
1083:Fenwick Elliott: Annual Review 2011/12
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902:(Oxford: Oxford University Press 2005)
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317:. These are routinely included within
75:Difference between set-off and netting
689:(2007, Oxford University Press), p264
598:make it understandable to non-experts
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300:
293:, was missing guidelines on netting.
973:Superior Court of Justice of Ontario
702:, Sweet & Maxwell, 7th ed., 2017
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501:the claim under the supply contract.
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197:(2007, Oxford University Press), 267
16:Method of aggregating financial risk
1051:Sweigart, R. L. and Farmer, S. P.,
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933:Stein v Blake ; Halesowen Presswork
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676:3 All ER 473 at 488, per Buckley LJ
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1028:Principles of Corporate Insolvency
922:Principles of Corporate Insolvency
812:Cf Insolvency Rules 1986 Rule 4.90
346:Multilateral Net Settlement System
14:
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979:, O.T.C. 261 (SC), 20 March 2006
977:Armenia Rugs v. Axor Construction
948:Röhlig (UK) Ltd v Rock Unique Ltd
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330:Bilateral Net Settlement System
297:introduced netting guidelines.
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959:Quoted by Vetsch, P. A. K. in
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488:, this is not self-executing.
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428:British Columbia Supreme Court
424:University of British Columbia
1:
865:Weatherall, I. and Ryan, S.,
761:Commissioner for HMRC v Entin
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1127:Miliangos v George Frank Ltd
561:governs set-off through the
422:Swagger Construction Ltd v.
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7:
1085:, accessed 14 November 2022
638:common-law right of set-off
103:describes the form such as
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1165:, accessed 9 December 2020
743:Jan Woltjer (March 2002).
414:in relation to set-off in
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144:
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537:where a person goes into
1006:"Practical Law: set-off"
900:Corporate Insolvency Law
731:Corporate Insolvency Law
1219:Encyclopædia Britannica
763:BCC 955 per Lightman J
541:or a company goes into
521:Current Account Set-off
402:Set-off by jurisdiction
1079:Cross-contract set-off
630:Statute of Limitations
565:Directive 2002/47/EC.
416:construction contracts
212:1 WLR 758. Similar to
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168:
1161:European Commission,
1141:Insolvency Rules 1986
1115:[1968] UKHL 4
993:Daily Commercial News
887:Insolvency Rules 1986
803:ISDA master agreement
664:(1994) NJL 1412, 1412
185:
154:
821:European Commission,
563:Financial Collateral
1176:Comptroller General
883:Insolvency Act 1986
535:Insolvency Act 1986
505:Contractual Set-off
486:Independent set-off
482:Transaction set-off
464:Independent set-off
117:independent set-off
946:(Civil Division),
559:European Union law
554:European Union law
531:Insolvency set-off
301:Settlement netting
214:settlement netting
204:settlement netting
202:This differs from
121:insolvency set-off
1252:Legal terminology
1139:Rule 4.90 of the
1068:CR and TH 161, 41
1008:. Thomson Reuters
698:Louise Gullifer,
685:Joanna Benjamin,
662:Set off revisited
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498:Simon Carves Ltd.
478:Equitable set-off
412:Canadian case-law
377:security interest
311:close-out netting
273:Lamfalussy Report
220:Close out netting
193:Benjamin,Joanna,
109:close-out netting
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1026:Roy Goode,
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871:Gowling WLG
543:liquidation
453:English law
447:English law
307:bilaterally
40:liabilities
1237:Bankruptcy
1231:Categories
898:Riz Mokal
648:References
539:bankruptcy
431:Contract".
418:includes:
381:pari passu
372:insolvency
319:derivative
243:liquidator
234:bankruptcy
52:respondent
364:equitable
161:P. Wood,
127:Mutuality
111:, whilst
48:plaintiff
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843:P Wood,
716:P Wood,
385:novation
295:BASEL II
269:Basel II
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181:novation
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250:default
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569:US law
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440:Ottawa
50:and a
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628:The
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