The five-judge bench of UK Supreme Court on 9 October 2020 pronounced a landmark judgment in Enka Insaat Vs Sanayi AS vs OOO Insurance Company Chubb  UKSC 38, which is considered to be a leading authority in the arbitration regime on the governing law of arbitration agreements and the role of the courts of the seat in granting anti-suit relief.
The claimant (“Enka”) is a Turkish company carrying on an international construction and engineering business based in Turkey but with a substantial presence and history of operations in Russia whereas the First Defendant (“Chubb Russia”) is a Russian company and part of the well-known Chubb insurance group. In the present case Enka was one of the subcontractors amongst others providing services in connection with a power plant for the Defendant (“Chubb Russia”).
On 1st February 2016 a severe fire caused massive damage to the plant. The owner, Unipro, claimed from its insurer, Chubb (in this case). In May 2019 Chubb Russia commenced proceedings against Enka and 10 other parties in the Russia (“Russian Proceedings” in Arbitrazh Court), seeking damages in relation to a massive fire in February 2016 at the power plant in Russia. However, over this claim, Chubb Russia asserted that “the accident was caused by defects (deficiencies) in the design, structures, fabrication and installation of the [power plant] including fuel oil pipelines”. To all this, Enka asserted that it had no liability and could have no liability, on the basis that in November 2014 the works which were alleged to have caused the fire had been excluded from the scope of works to be performed by Enka and had subsequently been performed by another contractor.
On 17 September 2019 Enka filed a motion in the Russian proceedings to have Chubb Russia’s claim against it dismissed (or “left without consideration”) pursuant to article 148(5) of the Arbitrazh Procedure Code, which is intended to give effect to Russia’s obligations under article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”) to refer to arbitration parties who have agreed to submit to arbitration a dispute of which a court of a contracting state is seized. It was well argued and contended by Enka that the claim against it fell within the scope of the arbitration agreement contained in article 50.1 of the construction contract and ought therefore to be resolved, not by the Russian courts, but by an arbitration conducted in accordance with that provision in London. Interestingly after some hearings, the judge in the Russian proceedings announced her decisions (a) not to grant Enka’s motion to refer the claim against it to arbitration and (b) to dismiss Chubb Russia’s claims against all the defendants on the merits. Meanwhile, Enka had on 16 September 2019 brought an arbitration claim in the Commercial Court in London seeking an anti-suit injunction to restrain Chubb Russia from further pursuing the Russian proceedings against Enka on the ground that this was a breach of the arbitration agreement in article 50.1 of the construction contract.
DECISIONS OF THE LOWER COURTS
On 15 October 2019 Carr J declined to grant an interim anti-suit injunction but gave directions for an expedited trial. The trial took place on 11 and 12 December 2019 before Andrew Baker J. He gave judgment on 20 December 2019, dismissing Enka’s claims against all the defendants. His primary reason for doing so was that he considered the appropriate forum to decide whether Chubb Russia’s claim against Enka falls within the arbitration agreement to be the Moscow Arbitrazh Court and not the English Commercial Court.
To note, Andrew Baker also relied on the fact that Enka did not seek an interim order from an arbitral tribunal, and that it did participate to some extent in the Russian court proceedings.
Aggrieved by the decision, Enka applied to the Court of Appeal for permission to appeal from this decision. The application was granted on 6 February 2020 and the appeal was heard on 7 and 8 April 2020. On 29 April 2020 the Court of Appeal (Flaux, Males and Popplewell LJJ) allowed Enka’s appeal and issued an anti-suit injunction restraining Chubb Russia from continuing the Russian proceedings. This appellate court swept the decision of Andrew Baker on the court that he made a wrong decision regarding the law governing the Arbitration Proceeding.
THE COURT OF APPEAL
The court also added that On forum non conveniens grounds, the previous decision was wrong in principle.
First, the choice of the seat of the arbitration is an agreement by the parties to submit to the jurisdiction of the courts of that seat.
Secondly, the grant of an anti-suit injunction to restrain a breach or threatened breach of the arbitration agreement is an exercise of such powers.
The English Court as the court of the seat of the arbitration is for that reason the appropriate forum to exercise the jurisdiction to grant anti-suit relief. It is required to decide whether threatened or actual proceedings constitute a breach of the arbitration agreement, and if they do, to protect the integrity of the arbitration agreement by granting anti-suit relief unless there is a strong reason for not doing so. That is part of the supervisory jurisdiction of the court of the seat, to which the parties submit by choosing the place of the seat. There is no room for the application of any forum non conveniens consideration: either the forum conveniens question does not arise or it is automatically answered in favour of the English Court as the court of the seat.
Further, In order to decide whether to make an anti-suit injunction, the Court would need to decide whether the arbitration clause covered the dispute in question. This required a decision as to what law governed the arbitration agreement. This cannot be decided simply on the basis that the contract provides for the law governing the whole contract, because the arbitration agreement is considered a separate agreement whose governing law might be different (but usually is not). This is particularly possible where the seat of arbitration is different from the governing law, because that opens the way for the argument that it would make more sense for the arbitration agreement to be governed by the law of the place where the arbitration will be seated. Generally there is a presumption that the governing law of the arbitration agreement will be the same as the seat of arbitration.
Therefore, in light of these considerations, The Court of appeal concluded in this case that, even if the main contract was governed by Russian law, it made more sense for the arbitration agreement to be governed by the law of England, which the parties had chosen as the seat of arbitration and hence On the main issue of determining the proper law of the arbitration agreement, the Court of Appeal clarified the relevant principles. It is well established that the proper law of an arbitration agreement (“AA law”) may not be the same as the proper law of the main contract.
The court also clarified that the English Courts will exercise their “curial Jurisdiction” to grant anti-injunction based on the parties choice of London as an arbitration seat and regardless of the law governing the AA. The court also emphasized that the “anti-suit injunction jurisdiction is concerned to protect and enforce the integrity of arbitration agreement” and hence the role of the curial court is to “interrogate the substantive jurisdiction of the arbitral tribunal (or the putative or potential tribunal if none has been or is intended to be appointed) in determining whether the foreign proceedings are a breach of the agreement to arbitrate the dispute in question.” The court also pointed out that even in cases where the AA is governed by foreign law, consideration of foreign conveniens and comity should not be taken into account by English Courts in deciding the grant of anti-suit injunctions.
DECISION OF THE SUPREME COURT
In the landmark judgment given by Lord Hamblen and Lord Leggatt (with which Lord Kerr agreed), the Supreme Court confirmed that, under English common law, the search for the main contract law is governed by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament, see Article 3.1 and 4). However, Questions regarding the law governing arbitration agreements, on the other hand, are not covered by the Rome I Regulation and is excluded from the preview of Article 1(2)(e). The AA law is to be determined by applying the three stage test required by English common law conflict of laws rules, namely:
IS THERE AN EXPRESS CHOICE OF LAW?
If not, is there an implied choice of law?
If not, with what system of law does the arbitration agreement have its closest and most real connection?
The rules of English law on contractual interpretation will be applied by the English Court to decide the issue.
The court then relied on a previous decision where the valiant attempt by Hamblen J (as he then was) in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd  EWHC 4071 (Comm);  1 Lloyd’s Rep 479, to set out, as clearly as possible, the relevant principles to determine the law governing the AA.
Even if an arbitration agreement forms part of a matrix contract (as is commonly the case), its proper law may not be the same as that of the matrix contract.
The proper law is to be determined by undertaking a three-stage enquiry into (i) express choice, (ii) implied choice and (iii) the system of law with which the arbitration agreement has the closest and most real connection.
Where the matrix contract does not contain an express governing law clause, the significance of the choice of seat of the arbitration is likely to be “overwhelming”. That is because the system of law of the country seat will usually be that with which the arbitration agreement has its closest and most real connection.
Where the matrix contract contains an express choice of law, this is a strong indication or pointer in relation to the parties’ intention as to the governing law of the agreement to arbitrate, in the absence of any indication to the contrary.
The choice of a different country for the seat of the arbitration is a factor pointing the other way. However, it may not in itself be sufficient to displace the indication of choice implicit in the express choice of law to govern the matrix contract.
Where there are sufficient factors pointing the other way to negate the implied choice derived from the express choice of law in the matrix contract the arbitration agreement will be governed by the law with which it has the closest and most real connection. That is likely to be the law of the country of seat, being the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective.”
The principal rationale for treating an express choice of main contract law as indicative of a choice of AA law is because businessmen do not usually intend that their relationship should be governed by more than one system of law (see Sulamerica Cia Nacional de Seguros SA v Enesa Engelharia SA  1 WLR 102 per Moore-Bick LJ at ).
The Court of Appeal stipulated that “this is a sensible starting point where there is no arbitration clause with a different seat; but it ceases to have any application where there is. In such cases, whatever the AA law, the parties have necessarily chosen their relationship to be governed in some respects by two systems of law, namely the curial law and the main contract law” (paragraph 95, emphasis added). Overall, as emphasised by Lord Neuberger in Sulamerica at , determining the proper law of the arbitration agreement was in each case a matter of contractual interpretation.
Applying these principles set above, the Court of Appeal found that the AA law in the Contract was governed by English law. Whilst the governing law of the Contract was Russian law, this was not by express choice.
Further, In this case, there was no choice of law to govern the contract as a whole and the general rule would be applied in that situation so that the law of the seat of arbitration governs the arbitration agreement.
Therefore English law governed the arbitration agreement and the Court of Appeal›s basis for granting the anti-suit injunction remains sound.
The Supreme Court considered the possibility that, where the law governing the contract also governs the arbitration agreement, this would nullify the arbitration agreement fully or partially. The Court acknowledged the possibility that might justify a departure from the general rule in order to give effect to the principle that generally, contracts should be construed so as to avoid invalidity.
The Supreme Court also confirmed the Court of Appeal›s decision that it was appropriate for the court to consider whether to grant the anti-suit injunction, given that England was the seat of arbitration.
Interestingly, Lord Burrows and Lord Sales partially dissented from the decision of three judges in this case.
This is a remarkable judgment by the Supreme Court of England and is going to be an authority in the pro-arbitration regime. The court has clearly clarified the position and power of the English courts to exercise the curial law in order to grant anti-suit injunctions as a matter of relief. As pointed out by Lord Justice Popplewell in paragraph 109 that “the scope of the curial law is not limited to the exercise of purely procedural powers. It involves the curial court determining aspects of the substantive rights of the parties under their arbitration agreement by reference to the curial law.” Saying this, Lord Justice Popplewell has vested a responsibility on the draftsman to draft the AA more diligently. The law set out with regard to the governing law of the arbitration agreement will also be considered to be a remarkable authority and will be a helpful percent for complicated cases in future.
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PUNJAB & HARYANA HC GRANTS BAIL TO MAN BOOKED UNDER POSCO ACT ON CHARGES BY WIFE REGARDING INCIDENT THAT TOOK PLACE WHEN SHE WAS A MINOR
The Punjab and Haryana High Court in the case Dinesh Versus State of Haryana observed and has recently granted a regular bail to a man booked under the POCSO Act after the complainant, the petitioner wife, accused him of penetrative sexual assault in an incident that allegedly took place prior to their marriage, when the petitioner wife was still a minor.
The bench comprising of Justice Vikas Bahl observed that no date of the alleged incident has been mentioned in the FIR and it was registered after the petitioner moved a plea for restitution of conjugal rights, the bench noted that the FIR was registered after much delay.
It was observed that the FIR was registered under Sections 6, 12 and 17 of POCSO Act and Sections 506, 376(2) (N), 323, 328 and 406 of Indian Penal Code, 1860.
The Court noted that no date of incident has been mentioned in the FIR and the said FIR has been registered after filing of the petition by the petitioner under Section 9 of the Hindu Marriage Act, 1955. Prima facie, it also appears that after much delay, the FIR has been registered.
Further, the Court observed that the affidavit suggests that the complainant married the petitioner without coercion or pressure and also the Aadhaar Card that suggests her to have attained the majority age at the time of her marriage.
The bench after considering the fact that the petitioner is not involved in any other matter and prosecution is to take time and also that the co-accused Yogesh has been granted interim protection. It was stated that this court deemed it fit to extent the relief of regular bail to the petitioner. It observed that since 07.12.2021, the petitioner has been in custody and there are 22 prosecution witnesses and none of them have been examined. Therefore, the trial is likely to take time.
Moreover, the court allowed the instant petition and released the petitioner on regular basis subject to its cancellation if he threatens or influences the witness.
The present petition is allowed by the court, while keeping in view the facts and circumstances and the petitioner is ordered to be released on bail on his furnishing bail or surety bonds to the satisfaction of the concerned trial Court or Duty Magistrate and subject to him not being required in any other case. In the present case, it is made clear, the petitioner threatens or influences any witness, it would be open to the State to move an application for cancellation of the present regular bail granted to the petitioner by the court.
Accordingly, the petition is disposed off in above terms.
Allahabad High Court refuses to quash case against government, madrasa teachers allegedly found with cow meat, 16 live cattle stock
The Allahabad High Court in the case Parvez Ahmad And 3 Others v. State of U.P. and Another observed and refused to quash the criminal case against a government teacher and a madrasa teacher from whose alleged possession cow meat (beef) and 16 live cattle were recovered.
The bench comprising of Justice Rohit Ranjan Agarwal observed that the First Information Report (FIR) that prima facie cognizable offence is made out against the applicants and thus, no case was made out against them, to quash the case.
Facts of the Case:
In the present matter, the court was dealing with the 482 CrPC plea filed by 4 applicants booked under Sections 153- A, Section 420, Section 429, Section 188, Section 269, Section 270, Section 273 of the Indian Penal Code, 1860 and section 3/5/8 of Prevention of Cow Slaughter Act, 1955 and section 11 of Prevention of Cruelty to Animals Act, 1979 and section 7/8 of Environment (Protection) Act, 1986, plea seeking to quash the case.
An Assistant teacher, Applicant no. 1 in the education department of the State. As Assistant Teacher, the applicant no. 2 is also working in the Madrasa Darul Ulum Gausia Kasba Salempur. A medical shop is run by the applicant no. 3 and applicant no. 4 is Hafiz Quran.
It was observed that their submission that a report from the Forensic Investigation Laboratory had received did not disclose that the sample sent for analysis was of the cow. Their case was case that no case under the Prevention of Cow Slaughter Act was made out.
It was argued by the State counsel that the FIR is a detailed report, the FIR which categorically mentioned that out of 16 live cattle stock which included 7 buffaloes, 1 cow, 2 female buffalo’s calf, 5 male buffalo’s calf, and one male cow-calf.
It was further argued by the state that it was wrong to say that the FSL report gave a clean chit to the applicants. Moreover, as 16 cattle were found in the possession of the applicants and other co-accused and they were not having any license to run the slaughterhouse.
The argument of the Applicant was discarded by the Court on the ground that no offence was made out from the reading of the First Information Report. It was underscored by the court that even though the FSL report had revealed that the sample which was sent for chemical analysis was not cow meat, but from the custody of the applicants and another co-accused, 16 live cattle were also recovered.
The court observing that defence regarding the FSL report shall be considered by the trial court as such defence set up in the present application cannot be considered at this stage by this Court, at the stage of quashing of the charge sheet
Accordingly, the case was dismissed.
MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?
The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.
The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.
It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?
In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.
It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.
The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-
Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.
Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.
HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956
The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.
The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
FACTS OF THE CASE:
The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.
The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.
the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.
Contentions Raised by the Parties:
It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.
It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.
The submissions of the petitioner were countered by the Respondent on the following grounds:
Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.
It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.
The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.
The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.
Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.
KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?
The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.
The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.
The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.
In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.
Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.
It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.
Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.
It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.
Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.
The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?
In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.
Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.
The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.
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