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BRUSSELS I REGULATION RECAST
Jurisdiction = right of a court to adjudicate a dispute
A few theories
1. Territoriality: starting point, but insufficient
2. Sufficient connection: It is acceptable to take jurisdiction so long as there is a sufficient connection; this could take account of people and events outside territorial boundary. E.g.:
a. Connections between C and the court , e.g. language (wanting to litigate in own language); access
(easier to hire local lawyers, and knows local context). Litigatns often want to litigate in their home courts; this is understandable and not necessarily unfair.
b. Usually connections of D, e.g. if D's assets & residence is in State X, then she cannot complain about being sued there. This is usually a justification for general jurisdiction against D; usually it is held sufficient to establish jurisdiction.
c. Subject-matter connection.
d. Consent: usually a good justification.
e. Collateral jurisdiction: where there are a lot of claimants or parties, then might want to hear all in one court despite poor connection between each individual & the jurisdiction.
3. Interest of the state: i.e. concerns about procedural & substantive justice.
History of the BIRR
1. 3 EU instruments culminated in the BIRR on jurisdiction & enforcement of judgments in civil and commercial matters which applies to proceedings commencing after 10 January 2015. It replaces the BIR 2001 and the
Brussles Convention 1978.
2. The purpose of the Regulation is to promote & facilitate harmonized adjudication of civil & commercial claims throughout the EU and thereby promote the internal market (Arts.67(4) and 81 TFEU). More specifically, the
Regulation (i) regulates civil jurisdiction within the EU, in particular harmonizing jurisdictional rules nad regulating conflicts of jurisdiction, and (ii) permits judgments of one MS to be recognised and enforced in other
Member States (if one can enforce a German judgment, one is more likely to do business there). The CJEU has expanded the purpose & effect of the Brussels I Regime by interpreting it with greater emphasis on the wider policy of integration. Identifying the purpose is important as it aids our interpretation of its scope. Accordingly,
the BIRR should be interpreted teleologically not literally.
3. 'Mutual trust and confidence' is at the heart of the EU endeavour; we treat each of the MSs' judgments with complete confidence and do not scrutinise the content of those judgments.
4. Matters of interpretation of BIRR can be referred to the CJEU by any court (Art.267 TFEU) but must be made by the Supreme Court if the interpretation is not acte clair (i.e. absolutely clear). Aids to interpretation include the preliminary reports to the Brussels Convention (and the later Accession Conventions) and previous
CJEU case law on the Brussels Convention and the BIR. However, these reports may be outdated, and there is no doctrine of binding precedent in EU law; the words of the Regulations have also changed.
a. But the provisions of BIRR which are equivalent to previous Regulation are to be interpreted in the same way where the words are the same: Pula Parking v Tederahn.
b. The CJEU commonly adopts an autonomous meaning of the Regulation, i.e. it interprets a term or concept in the Regulation without necessarily linking it to the legal system of a given EU Member
State, e.g. the notion of 'contract' under the Regulation is interpreted autonomously and may not coincide with the understanding under the national legal systems of MSs. This is said to be a uniform meaning independent of the rules of the domestic legal systems.
c. Courts, tribunals and judgments are given a wider definition than one might expect (Arts.2 & 3 BIRR).
5. Brexit: After the UK has left the EU, the BIRR rules will not apply as they depend on reciprocity to operate fairly between UK and EU parties to litigation.
((Relationship between BIRR and national rules
1. Scope of BIRR: Subject-matter of the dispute must fall within the scope of the BIRR—'civil and commercial matters' and not specifically excluded (Art.1).
2. BIRR takes precedence: Treat the national rules as residual rules.
1 3. General jurisdiction under BIRR: Generally the BIRR engages when D is domiciled in a MS of the EU
(Art.4). Ds not domiciled in the EU may be sued under national (common law) rules (Art.6).
a. However, there are some specific rules which apply irrespective of the D's domicile:
i. Art.24: Exclusive jurisdiction for e.g. rights in rem in immoveable property ii. Art.25: Disputes falling within a jurisdiction agreement in favour of a court of a MS
iii. Where proceedings are continuing on the same matter between the same parties in another
MS, irrespective of the parties' domicile within or without the EU (and irrespective of the jurisdiction the other court adopts) the Regulation is engaged: Overseas Union v New
iv. ((Also, protective rules for consumers, insured, or employees: apply irrespective of the place of
D's domicile (e.g. if a consumer sues a US manufacturer)—but not in syllabus.))
b. As a corollary to general jurisdiction, a D domiciled in a MS shall be sued in that State and may only be sued in another MS where permitted by the Regulation (Arts.4 and 5).))
Scope of BIRR (Art.1)
1. 'Civil and commercial matters'?
a. Autonomous meaning is given to 'civil and commercial matters'.
2. Public law matter excluded under Art.1?
a. **Excludes 'revenue, customs or administrative matters' even if otherwise civil & commercial.
b. **Excludes acta de jure imperii (act of imperial power).
c. The line can be difficult to draw but there is evidence that the scope of the Regulation is being widely rawn, i.e. that exclusions are narrowly defined. The court has focused on the legal basis of the claim (i.e.
nature of the claim) and the relationship between the parties (i.e. capacity in which the parties acted in relation to that claim).
d. Focus on capacity of parties: LTU v Eurocontrol: Public law claims are excluded; those claims which are generally regarded by MSs as a matter of private law are within the scope.
FACTS: LTU were a German air carrier, had been subjected to a Belgian judgment from a case brought by Eurocontrol, an international air safety organisation. The case was about whether LTU
had paid their dues to Eurocontrol. Belgian court had expressly said this is a matter of private law, a matter of debt, so it was claimed that it was a civil and commercial matter, thus that BIRR applied.
HELD (CJEU): Not a civil & commercial matter. The capacity in which Eurocontrol was bringing the claim was as a public body concerned with air safety. NB that Eurocontrol was not a state but a supranational body.
e. Focus on nature of claim or obligation: Freistaat Bayern v Blijurisdictionenstein:
FACTS: Bavaria sought to recover a maintenance grant given to a child on behalf of the child's father. German law places an obligation on parents to support their children, and if they do not do so,
state steps in and is subrogated to the claim. State wanted to enforce the judgment against the parent in another country. UK argued it was a public matter.
HELD: Civil and commercial matter falling within the BIRR.
f. Ask how did the r'ship between the parties arise? Frahuil v Assitalia SpA: If governed by private law then within BIRR.
g. **But public authority can act in a private capacity, in which case within BIRR scope: Sonntag v
FACTS: Teacher had acted negligently and student injured.
HELD: This was a private law claim arising in tort.
h. Example of acta de jure imperii: Lechouritou v Greece Case: Actions by injured parties against a State for war reparations were not civil and commercial matters. The powers exercised by the State giving rise to the damage were obviously an exercise of acta de jure imperii.
i. May still be manifestation of public authority even if looks like a private law claim in debt: Hellenic
Republic v Kuhn: An action in contract to recover debt was outside the scope of the Regulation. The
Greek State had retroactively altered the terms of a private debt when the State was in exceptionally difficult financial straits. Those acts were a manifestation of public authority.
j. Example of private law claim even though by tax authorities: HMRC v Sunico: An action by the tax authorities for damages for conspiracy to defraud the tax authorities was within the scope of Regulation as the claim was founded on the ordinary law of tort.
k. ****If form of action is in private law, then civil & commercial matter: Realchemie Nederland v
Bayer CropScience: Even if action results in a fine payable to the court it can be within civil &
commercial matters if the form of the action is in private law.
If actually contractual debt, civil and commercial matter: Pula Parking v Tederahn: A parking ticket issued by a public authority is not an exercise of governmental authority, it is a contractual debt and is therefore governed by the Brussels Regulation
Provided the authority does not issue penalties resulting from the governmental authority : Therefore need to be careful that the government authority structures the penalty as a contractual debt rather than a fine.
m. Obligation to protect consumers? Verein fur Konsumenteninformation v Henkei: An obligation to protect consumers can give rise to a private law right if it can be enforced by any individual.
Lawyers can structure a claim to fall within or without the Regulations. This is unique to common law systems, which allow Cs to structure proceedings in the way most favourable to them. In continental
Europe, it is more of an inquisitorial system where the judge is more in control of how the claim is characterised.
3. Art.1 exclusions? Matters are not within the scope under the explicit exclusions only if:
a. The claim primarily involves the excluded matter: Where an excluded matter is raised as an ancillary issue, the proceedings are within the Regulation.
b. The excluded matters are identified by way only of the claim and not by reference to any possible, likely or pleaded defences (e.g. if defence of arbitration clause, BIRR still applies): see TIARD v Netherlands.
c. Art.1(2)(a): 'The status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage.'1 d. Art.1(2)(b): 'bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings' 2 First decide if within
Insolvency Regulation; if so, the claim is outside the scope of BIRR (German Graphics v Alice van den
e. Art.1(2)(c): 'Social security' (see Gemeente Steenbergen v Boten).
f. Art.1(2)(d) + new Recital (12): 'arbitration': Under the BIR, arbitration was excluded only if the proceedings principally concerned arbitration (e.g. the validity of the arbitration agreement, appointment of arbitrators, or procedure for arbitration). Other matters could fall within BIR or be affected by it (e.g.
substantive proceedings, anti-suit injunctions to protect arbitration proceedings, defences based on the arbitration agreement).
i. Wide definition of arbitration in Marc Rich v Societa Italiana: The intention behind Art.1(2)
(d) was to exclude arbitration entirely, including (i) ancillary proceedings (e.g. proceedings for the appointment of arbitrators, as in Marc Rich itself); (ii) declaratory proceedings as to the effect
& validity of the arbitration agreement (AllianzSpA v West Tankers), and (iii) proceedings fixing the place of arbitration, enforcing or setting aside of an arbitral award.
ii. Special case of anti-suit injunctions: An ASI will similarly be excluded from the scope of
BIRR. But this is not the end of the matter: it is possible that proceedings in the MS which is subject to the ASI would fall within the scope of the Regulations. Should that happen, the Court that issued the ASI will be prevented from doing so as it would otherwise interfere with that MS's determination of jurisdiction under the Regulation: West Tankers.
AllianzSpA v West Tankers—principle of 'infection':
o FACTS: Arbitration on the matter of liability between C & D were continuing in
England pursuant to an alleged AA. C was an insurer who sought by way of subrogation to recover amounts from D which the insurer had already paid to an insured person. Whilst arbitration was ongoing, C initiated proceedings in Italy, in breach of the alleged agreement. Accordingly D requested the English court to issue an ASI. The
CJEU had to consider whether the English and Italian proceedings fell within the
(1) As to the English proceedings (application for ASI), the CJEU held that they
(straightforwardly) fell outside the scope of the Regulations because the subjectmatter was the right to arbitrate.
(2) As to the Italian proceedings, the CJEU held that they fell within the Regulations as the validity & effect of the AA was only a preliminary matter in that dispute, i.e.
1 There are specific Regulations which deal with these matters (e.g. BIRR bis Regulation 4/2009).
A specific Insolvency Regulation (Recast) amending Regulation No.1346/2000 operates over matters within that Regulation's scope.
2 3 principle of 'infection'. 'If because of the subject matter of the dispute, that is, the nature of the rights to be protected in proceedings, such as a claim for damages,
those proceedings come within the scope of the Regulations, a preliminary issue concerning the applicability of an AA…also comes within its scope of application.' Because the Italian proceedings primarily concerned the substance of the case viz. liability for the original damage, it follows that the Italian court could establish jurisdiction under the rules of the Regulation. Given that the Italian proceedings were made pursuant to the Regulation, it follows that the English court could not grant an ASI as to do so would violate the principle of mutual trust and cnofidence underlying the Regulations.
Enforcement & recognition: National Navigacion v Endesa: A judgment from another MS
on the incorporation of an AA had to be recognised & enforced under BIR.
o FACTS: Civil proceedings in Spain which resulted in a final judgment by the Spanish court that the AA was null & void. C wanted to ignore the (adverse) ruling and initiated arbitration proceedings in England. D argued that C is prevented from doing so because the judgment was a final determination by the Spanish courts.
o HELD: English CA decided that a judgment given in a MS (Spain) which ruled, as a preliminary issue in proceedings on the substance of the dispute, that an arbitration clause had not been incorporated in a bill of lading, was a judgment which had to be recognised and enforced under the Regulation. It was the subject-matter of the proceedings which dictated whether the proceedings were within the Regulations or not. A judgment on a preliminary issue in proceedings within the Regulation would be a judgment within the Regulation, even if, when looked at in isolation, the subject of the preliminary issue fell within the ambit of arbitration.
Recital (12): 'A ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, imperative or incapable of being performed, should not be subject to the rules of recognition and enforcement laid down in this Regulation,
regardless of whether the court decided on this as a principal issue or as an incidental question.'
Reverses Endesa (which was the point of the Recital): Under the new regime, Spain's determination on the validity of the AA would not affect an English court's ability to rule on it.
Weakened relevance of West Tankers: This point is less clear (and probably debatable on its conclusion). Fentiman (2015) argues that the introduction of Recital (12) into the
Recast has weakened the continued relevance of West Tankers. This is because Recital
(12) expressly rejects the principle of 'infection' on which West Tankers turned: by removing the central pillar of the decision in West Tankers, it is likely that the assessment by the court first seised of whether its jurisdiction is ousted (Italy court) will no longer be subject to the Regulation. It also follows that an injunction would no longer restrain the court from addressing a matter within the Regulation's scope
Evaluation of West Tankers
For the ruling: Although a decision has been met with hostile reception, it can be justified:
because ASIs infringe the sovereignty of the State where proceedings have commenced
(Italy), it is reasonable to focus on those proceedings in deciding whether the prohibition should be applied, rather than the proceedings in which the injunction was made.
Against the ruling: Whilst the logic of the ruling is defensible, the practical consequences of that have been widely condemned for undermining the effectiveness of arbitration agreements. In Endesa, for instance, a decision of a Spanish court as to the interpretation fo an AA as a preliminary question in a case that was mostly about liability had to be recognised in England pursuant to the Regulations. This ultimately robbed the effect of the
g. Art.1(2)(e): 'Maintenance obligations arising from a family relationship, parentage, marriage or affinity' 3 h. Art.1(2)(f): 'Wills and succession, including maintenance obligations arising by reason of death' 4 3 4
See Brussels II bis (recast) EC Reg 4/2009 on recognition and enforcement of maintenance obligations.
See Regulation No.650/2012, but not applicable in the UK.
4 Hierarchy of jurisdictional rules within BIRR for MS Courts
1. Art.24—exclusive jurisdiction: that single court uniquely interested (i) jurisdiction cannot be derogated from by agreement or submission; (ii) jurisdiction cannot be usurped by proceedings elsewhere; (iii) judgments from other courts will not be recognised nor enforced. This does not matter where C or D is domiciled.)
2. Art.26—subsequent agreement (by submitting to the proceedings): overrides prior Art.25 agreement but is subject to Art.24.
3. Art.25—exclusive jurisdiction agreement (i) confers jurisdiction on chosen court; (ii) other courts should defer
(Art.31(2)); but (iii) a judgment from another court still has to be recognised and enforced under the usual rules throughout the EU.
4. Art.4, 7, 8, and 25 (if non-EJC)—equal grounds for jurisdiction at C's choice, (i) the court has jurisdiction;
(ii) other courts must decline jurisdiction once proceedings commenced if same parties and same matter; (iii) the judgment of the first proceedings to conclude will be recognised and enforced throughout the EU.
1. Consumers (section 3), insureds (section 4), and employees (section 5) have special protective rules regarding jurisdiction and recognition & enforcement of judgments within the EU. But these will not be lectured on.))
1. Basic rule: C must sue D domiciled in a MS in the courts of that MS: Art.4.
This is the fairest for D, and most obvious for C. Satisfies certainty and predictability, avoiding unfair surprise.
a. Domicile of individuals:
i. In England: Art.62(1): To decide if domiciled in England, apply English law.
Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929), Sched.1, para.9:
'(2) An individual is domiciled in the United Kingdom if and only if—
(a) he is resident in the United Kingdom; and
(b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.'
[Presumption if resident in UK for last 3 months or more:]
'(6) In the case of an individual who—
(a) is resident in the United Kingdom, or in a particular part of the United
(b) has been so resident for the last three months or more,
the requirements of sub-paragraph (2)(b) or, as the case may be, sub-paragraph (3)(b)
shall be presumed to be fulfilled unless the contrary is proved.'
Clarified the elements in Yugraneft v Abramovich:
o FACTS: Y wanted to sue A; A said he was not domiciled in England. A had a residence in England, owned Chelsea football club; children studied here. A largely settled in
Russia; could consider Russia his home.
o HELD: (In the end, England had jurisdiction under other grounds, but:)
Residence = normal, natural, settled abode. (A conceded residence, but contested substantial connection.)
Substantial connection: not merely a numerical approach to number of days spent in England, although that can be taken into account. A could be resident here even if not 90 days. It was the quality of time in UK that mattered: the quality of time was stronger with Russia. Children schooling in England and ownership of Chelsea were insufficient to establish substantial connection.
Good arguable case at the time the proceedings commenced: Shulman v Kolomoisky:
need to prove domicile (residence and substantial connection) in England to the standard of good arguable case at the time the proceedings were commenced.
ii. Other MS: Art.62(2): in deciding if the person is domiciled in another MS, the court has to aply that MS's domestic law.
May arise in the context of Art.5: Haji Ioannou v Frangos: A D resident in Monte Carlo had a Greek business domicile under Greek law. The English court could not therefore take jurisdiction except as permitted under the Regulation (Art.5).
5 b. Domicile of corporations and other legal persons: Legal persons (can include clubs, associations,
partnerships etc. even though not recognised as companies under English law) are given an autonomous domicile by Art.63:
Art.63 '(1) For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:
(a) statutory seat, or
(b) central administration, or
(c) principal place of business.
(2) For the purposes of Ireland, Cyprus and the United Kingdom "statutory seat" means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.'
i. Statutory seat: usually identified in continental European countries as part of incorporation process ii. Central administration: same meaning as other uses of the phrase in EU legislation, but not the same as the central management and control; therefore it is where the company through its relevnat organs according to its own constitutional provisions takes the essential decisions of its entrepreneurial management; not necessarily the same as principal place of business: Young v
Anglo American South Africa CA.
FACTS: AASA sought declaration that the court had no jurisdiction to hear the claims. The only issue was whether AASA has central administration in England such that it is domiciled in England can can therefore be sued by C. C relied on the fact that AASA was part of a group of companies, and the 'head company' of the group is Anglo America PLC,
which is unambiguously incorporated in the UK and listed on the LSE. She submitted that because AA guided and heavily influenced the decisions taken by the board of AASA,
AASA's 'entrepreunerial management' was exercised in London.
HELD (Aikens LJ): Entrepreunerial management = the place where the company organs take the decisions essential for the company's operation.
If there is another company influencing the decisions, irrelevant: AA's influence of
AASA's decisions 'does not alter the position'. The question 'where were the main entrepreuneurial decisions taken which determined the activity of AASA' is logically distinct from the correct question 'where does AASA take decisions essential for the company's operations'.
Aikens LJ rejected earlier attempts to define the concept of central administration. In particular, he rejected (1) the decision in King v Crown Energy (2003) that the word administration meant 'something of the back office about it', and (2) the decision in 889457 Alberta v Katanga Mining (2009) to the effect that a company has its central administration where those having the serious responsibilities in the company are employed.
Fentiman (2015) suggests that Young confirms the view that with an appropriately risksensitive management structure, a foreign subsidiary of an English parent is unlikely to be exposed to the jurisdiction of the English court.
iii. Principal place of business: where the main business of the company is carried out: centre of the company's industrial or commercial activity and the place where most of its employees and business assets are located: see Vava v AASA.
'Principal': However, 'principal' is defined stringently—it means 'most important' (The
Rewia). It refers not to the volume of business at a given office but to the importance of that office to the conduct of business. Thus, the place of a company's day-to-day business activities may not be its PPoB if those activities are controlled by the senior management somewhere else. Hence in The Rewia, the court held that the PPoB 'was the centre from which instructions were given when necessary and ultimate control was exercised'.
c. If more than one domicile: D could be sued in more than one MS at C's option (but note Art.29 preventing parallel proceedings after the initial one).
d. It is D's domicile that matters: C's connections or lack of connections with the EU are apparently irrelevant:
i. Cite Universal General v Group Josi: Canadian C tried to sue French D. D said BIRR could not apply. Court said that D was domiciled in France, so BIRR was engaged.
ii. Cite Owusu v Jackson (2005):
FACTS: Both C and D were English; C had been injured on holiday in Jamaica, and tried to sue the holiday provider.
HELD: Although al the events happened in Jamaica, D was domiciled in England, and that was all that was needed to engage the Regulations.
2. If D domiciled in another MS? Then English courts do not have general jurisdiction, and can only take jurisdiction if available ground under the Regulation (Art.5).
3. If D not domiciled in any MS (and Arts.24, 25 & 29 do not apply)? Then can use national rules of jurisdiction
Recital (15): 'The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.'
Recital (16): 'In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.'
Principle & policy: Subject-matter jurisdiction is based on efficiency: the courts are particularly cloe to the facts,
so they can take jurisdiction. E.g. if you need to consider how a machine was damaged, the nearer courts are better to make an assessment of fact.
1. Equal to Art.4: These special grounds of jurisdiction are to be considered equal to Art.4. C has a free choice under the principle of mutual trust & confidence (Besix v Wassereinigungsbau). The particular rules are justified by a close connection between the events and the court identified (see Recitals (15) and (16)).
a. Narrowly interpreted: Where interpretation is in doubt, the CJEU adopts a narrow interpretation
(Custom Made v Stawa Metallbau) as the special grounds derogate from the general rule of D's domicile
(Kalfelis v Schroder).
b. Avoid interpretations resulting in C's domicile: The CJEU is also unwilling to use interpretations resulting in C's domicile: Kronhofer v Maler.
c. Emphasise certainty and predictability: The Court emphasises interpretations which enhance certainty and predictability for C and D: Besix v Wassereinigungsbau; Zuid Chemie v Philippos.
2. Art.7(5) Branches etc.: 'as regards a dispute arising out of the operations of a branch, agency, or other establishment, in the courts for the place where the branch, agency, or other establishment is situated'. This special ground complements the general jurisdiction based on D's domicile: it permits a D domiciled in one MS to be sued in anotherr MS.
a. Step 1: Identify 'the branch, agency or other establishment'
i. Covers a wide range of ways that businesses conduct their affairs abroad, e.g. using a subsidiary company or an agent/representative.
ii. Criteria: (i) permanent place of business in fixed place + (ii) subject to direction and control of parent + (iii) able to act on behalf of parent: Somafer v Saar-Ferngas (a sales rep employee of parent was not a branch etc. as did not have a permanent place identifying the rep as the parent body).
Also stated (slightly differently) in Mahamdia v Algeria: The branch, agency, or other establishment must have appearance of permanency such as to be an extension of the parent,
it must be able to negotiate business with third parties so that they did not have to deal directly with the parent body.
Direction and control also stated in: De Bloos v Bouyer: Branch had to be subject to control and/or direction of parent.
Power to conclude contracts, and under parent control: Blanckaert v Trost: A
commercial agent who represented a number of manufacturers was not a branch as had no power to conclude contracts and not sufficiently under control of parent.
Part of parent body, acting on parent's behalf: Sar Schotte v Parfums: A wholly controlled subsidiary could be a branch etc. if identified as part of parent body and acting on 7
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