{"id":331970,"date":"2024-09-27T12:00:35","date_gmt":"2024-09-27T06:30:35","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=331970"},"modified":"2024-09-27T14:06:07","modified_gmt":"2024-09-27T08:36:07","slug":"siac-annual-india-conferences-2024-new-developments-reforms-in-international-arbitration-best-path-forward","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/09\/27\/siac-annual-india-conferences-2024-new-developments-reforms-in-international-arbitration-best-path-forward\/","title":{"rendered":"SIAC Annual India Conferences 2024| New Developments and Reforms in International Arbitration: The Best Path Forward"},"content":{"rendered":"
\n

The Singapore International Arbitration Center (SIAC) organised its Annual India Conferences 2024 in Mumbai and Delhi on September 6th and 7th respectively. The theme of the Conferences was ‘New Developments and Reforms in International Arbitration: The Best Path Forward<\/span>’. The Conferences brought together a gathering of judicial dignitaries, legal practitioners, and industry experts to deliberate on the best practices in arbitration proceedings, discuss recent developments and reforms, and debate some of the key issues in international arbitration, including diversity and the value of investment arbitration.<\/p>\n

SIAC ANNUAL INDIA CONFERENCES 2024, DAY 1 — MUMBAI<\/h2>\n

The Mumbai Conference opened with a Welcome Address by the SIAC Chairman, Mr Davinder Singh SC, who highlighted India’s remarkable growth on the global stage, particularly in international arbitration. He underscored the strong relationship between SIAC and India, noting that Indian parties are among the top foreign users at SIAC and in 2023, Indian arbitrators were the third most appointed nationality in SIAC arbitrations.<\/p>\n

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Chief Justice Devendra Kumar Upadhyaya of the Bombay High Court delivered the Special Address. He remarked that the theme of the Conference is timely and resonates with the global legal fraternity. He highlighted India’s legislative reforms, especially the 2015 amendments to the Arbitration Act and lauded Singapore for setting an example in fostering an arbitration-friendly environment.<\/p>\n

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A key highlight of the event was the Keynote Address by Chief Justice Sundaresh Menon of the Supreme Court of Singapore, which focused on the theme of securing trust in arbitration. Chief Justice Menon observed that arbitration has evolved from its earlier, more simple and informal nature, and that trust from its users can no longer be assumed as an inherent feature of the process. He identified four significant trends in international arbitration: the transformation of arbitration from a relatively informal process to one that is governed by a substantial body of procedural rules, the professionalization of the field, the shift from an alternative mode of dispute resolution to one that is preferred or made mandatory, and the general decline of trust in public institutions. To ensure that we continue to secure trust in arbitration, Chief Justice Menon highlighted two key areas that ought to inform the work ahead: first, to promote access to justice by controlling costs, and second, to ensure that the values of the legal profession are upheld. He concluded by urging the entire arbitration community to work collectively to ensure that arbitration can continue to be trusted and relied upon by society.<\/p>\n

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The first panel, moderated by Ms Shalaka Patil (Partner, Trilegal), featured Dr. Birendra Saraf (Advocate General, State of Maharashtra), Mr Amit Jajoo (Partner, IndusLaw), Mr Prakash Pillai (Partner, Clyde & Co Clasis Singapore; Managing Director, Clasis LLC), and Mr Avinash Pradhan (Deputy Head, International Arbitration; Co-Head, South Asia Desk; Partner, Rajah & Tann Singapore; Partner, Christopher & Lee Ong). The discussion centered around the topic, “Practical Suggestions for More Efficient, Speedy, and Cost-Effective International Arbitration Proceedings<\/span>.”<\/p>\n

A key focus was on the drafting of arbitration clauses. Amit referred to these clauses as “midnight clauses,” often drafted hastily at the last minute. He emphasized the importance of considering the practical and jurisdictional implications, particularly when selecting the seat of arbitration. He stressed the significance of selecting a commercially sensible seat of arbitration and opting for institutions that cater well to commercial disputes. Building on this, Prakash highlighted that the intent to arbitrate must be explicit. A poorly defined clause with ambiguous intent could render the clause pathological, although Singapore courts have tried to uphold arbitration agreements if the intent to arbitrate is unambiguous. He also advised that parties should be mindful of the law governing the arbitration agreement, especially in light of recent legal developments.<\/p>\n

Dr. Saraf, addressing the context of international arbitrations seated in India, underscored the need for fixed time limits in arbitration proceedings, ensuring that parties are not disadvantaged by unnecessary delays. He also stressed the importance of tribunals taking a more proactive role in managing timelines. Avinash highlighted that arbitrators must balance ensuring natural justice with procedural efficiency. He explained that while arbitrators must offer a reasonable opportunity for parties to present their case, this does not mean an absolute or unlimited opportunity. The tribunal, as the master of procedure, should maintain discretion in how the proceedings are conducted.<\/p>\n

The panel also explored the use of AI in arbitration. Prakash noted that while technology, such as virtual hearings and e-disclosures, has successfully reduced costs, AI presents a different challenge. He suggested that while AI may assist with administrative tasks like case summaries and transcriptions, core functions of arbitration should not be delegated.<\/p>\n

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The second panel, moderated by Mr Tomas Furlong (Partner, Herbert Smith Freehills LLP), focused on the theme, “The Future: What Will Change in International Arbitration<\/span>?” The panelists included Mr Farid Karachiwala (Partner, JSA), Mr Sakate Khaitan (Senior Partner, Khaitan Legal Associates), Mr Paras Lalwani (Head — International Arbitration, Bayfront Law), and Mr Raj Panchmatia (Partner, Khaitan & Co). Their discussion centered on three main sub-themes: technological advancements, geopolitical influences, and changes in ADR processes and procedures.<\/p>\n

The discussion opened with the question of whether technology would enhance arbitration or add to its costs. Paras identified four major concerns for parties in arbitration: cost, efficiency, certainty, and access to justice. He highlighted that AI, if used responsibly, has the potential to reduce costs and improve efficiency. However, he cautioned that AI also presents risks, particularly around confidentiality, bias, and whether tribunals are equipped to use such tools effectively. Sakate introduced the concept of the convergence of blockchain and AI, suggesting that while these technologies currently operate on parallel tracks, they are poised to intersect in the near future, bringing significant change.<\/p>\n

Raj acknowledged that AI might transform legal practice but noted that it won’t replace lawyers. Instead, he observed that lawyers who fail to upskill in AI could find themselves left behind. Paras suggested that AI could play a role in resolving certain types of straightforward, lower-value disputes, increasing access to justice by making arbitration more affordable for smaller parties.<\/p>\n

Shifting to geopolitics, Farid traced India’s economic growth and its trade relations with countries such as the U.S., China, Russia, UAE, and Saudi Arabia. He also discussed how legislative and judicial reforms have positioned India as an emerging hub for arbitration, but length of enforcement remains a concern. Raj proposed the idea of a specialized arbitration division within the Indian courts or even a model similar to Singapore International Commercial Court (SICC) to fast-track enforcement. Sakate emphasized the importance of recognizing the time value of money in arbitration awards, arguing that businesses operate on compound interest, while most Indian awards and judgments only account for simple interest. He called for greater incentives to enforce awards promptly.<\/p>\n

On the topic of popular future arbitration seats, Farid and Raj observed that while Dubai and the UAE are growing in prominence, they may not yet be ideal for Indian parties, as Indian courts do not recognize awards seated in those non-reciprocating jurisdictions. This makes Singapore and SIAC the more reliable choice due to the certainty and support they provide.<\/p>\n

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The day concluded with a thought-provoking Oxford-style debate on the motion: “This House Believes that Competence, Not Diversity, is the Only Relevant Factor in Arbitrator Selection<\/span>.” The debate was moderated by Mr Rishabh Malaviya (Counsel, SIAC) and Ms Nidhi Parekh (Senior Legal Counsel, Engie India). The debate was judged by Mr Cyril Shroff (Member, SIAC Board of Directors; Managing Partner, Cyril Amarchand Mangaldas), Ms Zarina Chinoy (Associate Vice President, Panchshil Group) and Mr Kevin Nash (Registrar, SIAC).<\/p>\n

Arguing for the motion, Mr. Zal T. Andhyarujina SA (Door Tenant, Fountain Court Chambers), emphasized that while both competence and diversity have their merits, they play different roles at different points in the arbitration process. When it comes to selecting arbitrators, competence should be the overriding factor. He argued that competence is a broad and flexible concept, encompassing the ability to understand the specific sensitivities of a dispute. In his view, selecting arbitrators based on competence naturally brings diversity, since it ensures that arbitrators have the merit and quality required for the role.<\/p>\n

Ms. Ila Kapoor (Partner, Shardul Amarchand Mangaldas & Co.) built on this point by bringing in the perspective of clients. She highlighted that clients, especially those facing high-stakes disputes, prioritize competence over diversity when selecting arbitrators and aren’t focused on correcting historical gender imbalances. Kapoor emphasised that placing diversity above competence could undermine arbitration’s appeal, as parties rely on the ability to choose specialists to decide their disputes.<\/p>\n

Opposing the motion, Ms. Priyanka Shetty (Partner, AZB & Partners), addressed the persistent lack of diversity in arbitration, calling the current landscape “male, pale, and stale.” She shared that fewer than 20% of arbitrators in investment treaty cases are women, less than 5% come from Africa or the Middle East, and less than 9% from Asia. Shetty contended that diversity leads to better decision-making, with data showing a 60% improvement in performance when teams are diverse. She firmly stated that prioritizing diversity doesn’t mean lowering standards, rather it enhances decision-making.<\/p>\n

Mr. Nakul Dewan SA (Barrister, Twenty Essex) joined Priyanka Shetty in opposing the motion, drawing on a case involving the arbitration of a gas pipeline in Balochistan, and argued that arbitrators unfamiliar with conflict zones can struggle to grasp the realities on the ground, which can lead to flawed decisions. He cited this case as an example where the arbitration outcome suffered due to a lack of relevant diverse experience. Nakul challenged the notion that diversity detracts from competence, asking if anyone could point to cases where diversity caused arbitrations to fail or awards to be set aside. He found none. He concluded that diversity, in fact, enhances competence by bringing fresh perspectives to the tribunal.<\/p>\n

The debate was intense and resulted in a split verdict from both the judges and the audience, with the consensus that competence and diversity are both essential and should complement each other.<\/p>\n

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The Mumbai Conference concluded with Ms. Gloria Lim, CEO of SIAC delivering the Closing Remarks.<\/p>\n

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SIAC ANNUAL INDIA CONFERENCES 2024, DAY 2 – DELHI<\/h2>\n

The second leg of the SIAC Annual India Conference was held in Delhi on 7th September 2024. The event commenced with an Opening Address by SIAC CEO, Ms. Gloria Lim, where she underscored India’s pivotal role in SIAC’s growth. Since 2011, SIAC has administered over 1,400 cases involving Indian parties, with the disputes amounting to more than SGD 20 billion. Gloria highlighted that this ongoing partnership between SIAC and India has been integral to the institution’s success.<\/p>\n

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In his Welcome Address, SIAC Chairman Mr. Davinder Singh SC reflected on how international arbitration transcends jurisdictional boundaries, offering practitioners the unique opportunity or a “passport” to practice across the world. He particularly emphasized the potential of young Indian legal practitioners to leave a lasting impact in the field. However, he expressed concern about the lack of opportunities to gain experience, noting that with a limited number of arbitrations globally and most cases often going to senior, experienced arbitrators, opportunities for younger professionals can be scarce, especially in an institutional setting. To address this, he urged practitioners to convert adhoc<\/span> arbitrations into institutional arbitrations which will enable more opportunities to be created for younger practitioners to be appointed as arbitrators by institutions such as SIAC. Mr. Singh further noted SIAC’s commitment to integrity, remarking that SIAC has come to be known for its values and integrity, ensuring that the arbitral process remains infused with these principles.<\/p>\n

One of the most anticipated sessions was a fireside chat with Singapore’s Chief Justice Sundaresh Menon, moderated by SIAC Court Members Mr. Tejas Karia and Mr. Vijayendra Pratap Singh. The discussion began with a question on the role of technology and AI in enhancing the efficiency of the arbitral process. Chief Justice Menon shared how technology intersects with justice, especially in light of the global access to justice crisis. He pointed out that while traditional justice systems are often associated with formal courtrooms and procedures, technology offers an opportunity to make justice more proportionate, more accessible, and more capable of providing closure for everyday problems.<\/p>\n

Chief Justice Menon also discussed the Memorandum of Understanding (MOU) between the Singapore judiciary and Harvey AI, signed in August 2023, and positively noted a recent demo of the platform’s capabilities made to the Singapore judiciary. While acknowledging the limitations of generative AI, he emphasized its tremendous potential to enhance access to justice. Its ability to summarize vast amounts of material is also particularly valuable in arbitration, where managing large volumes of information and data is a growing challenge.<\/p>\n

In response to a question on how courts across jurisdictions can work together, Chief Justice Menon spoke about the “organic evolution” of a transnational justice system, driven by conventions such as the New York Convention and the development of model and soft laws. Chief Justice Menon cited the example of the annual roundtable between the Supreme Courts of India and Singapore as an example of cross-jurisdictional collaboration at the macro level. At the micro level, he pointed to mechanisms such as transnational issue estoppel, as tools to prevent the re-litigation of issues in enforcement courts.<\/p>\n

During the discussion on Singapore’s role in leading ideation and innovation, particularly regarding award enforcement and challenges, when asked if Singapore’s courts send a consistent signal in this respect, Chief Justice Menon responded by emphasizing that Singapore has long upheld the principle that courts and arbitration are partners. He explained that once parties opt for arbitration, the courts’ role is generally defined by statute, with a focus on minimal judicial interference. In the context of due process challenges, the Singapore courts have held that arbitrators should be granted broad discretion in procedural matters, and this allows them the flexibility needed to manage complex disputes. However, Chief Justice Menon pointed out that the courts also have a responsibility to maintain professional standards. In rare instances where an award is seriously flawed, Singapore’s courts will step in to set it aside.<\/p>\n

In addressing how to improve the arbitration ecosystem in India and globally, Chief Justice Menon noted that while arbitration is thriving, there are areas that demand attention. One key issue is the growing cost of arbitration, which has spiralled over time. He cited Justice James Allsop, who remarked that arbitration has become increasingly “industrialized,” with costs ballooning due to procedural expansions that are rarely questioned. Another concern he raised is the growing mismatch between private arbitration and disputes involving significant public interest, such as climate change. Traditionally, arbitration served as a private dispute resolution mechanism for matters of private concern. However, the use of arbitration in cases with broader public policy implications introduces complexities that may need to be addressed. Chief Justice Menon noted that it is unlikely that this challenge can be solved through small, incremental changes—it demands more decisive and innovative solutions.<\/p>\n

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The first panel discussion on “Reforms to the Indian Arbitration Act — Challenges, Prospects and Expectations<\/span>” was moderated by Mr Vivekananda Neelakantan (Deputy Registrar, SIAC) and featured Mr Jafar Alam (Partner, Trilegal), Mr Ashish Kabra (Partner and Head — Singapore Office, Nishith Desai Associates), Ms Sadhvi Mohindru (Senior Associate, HFW), and Mr Naresh Thacker (Partner, ELP).<\/p>\n

The session began with a focus on the recent report on arbitration reforms. Jafar pointed out that although the report has yet to be implemented, it is progressive in its recommendations. He also emphasized two significant reforms recommended—under Section 34 of the Indian Arbitration Act, Indian courts will have the power to partially set aside or modify arbitral awards, a change that could be both beneficial and challenging, depending on judicial activism. However, with the current restrictions on challenging awards, he viewed this development as positive. Second, Jafar welcomed the potential statutory recognition of emergency arbitration orders.<\/p>\n

Building on this, Ashish stressed the importance of ensuring the quality and independence of arbitrators, noting that discouraging unilateral appointments and enhancing disclosure requirements were positive steps. He also advocated for improving the execution process of awards, an area that the committee report does not fully address but should be a priority. Ashish cautioned against overregulation, suggesting that while soft law could be strengthened, over-prescription in legislation should be avoided.<\/p>\n

Vivekananda then shifted the conversation to the importance of addressing the law governing arbitration agreements. Referring to the Anupam Mittal case, Sadhvi agreed that this is an area that needs more clarity, particularly in the stage of drafting of arbitration clauses.<\/p>\n

Naresh, when asked about whether the Indian Arbitration Act should define arbitrability stated that arbitrability, particularly in the context of public policy, shouldn’t be prescribed by statute, as it could create more issues than it solves. The panel also touched on the recent Office Memorandum issued by the Ministry of Finance, which discourages arbitration for disputes over INR 10 crore. While the panellists had differing views on the rationale, they agreed that this memorandum represents a step backward, especially for government-related disputes.<\/p>\n

On the broader trend in Indian judicial decisions, the consensus was that the Indian judiciary has generally adopted a more pro-arbitration stance, with limited intervention and a stronger inclination towards enforcing foreign awards.<\/p>\n

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The second panel discussion on the topic “The Making of an Enforceable Award<\/span>” was moderated by Mr Kevin Nash (Registrar, SIAC) and featured Mr VK Rajah, SC (International Arbitrator, Duxton Hill Chambers (Singapore Group Practice)), Mr Soorjya Ganguli (Partner, Argus Partners), Mr Sanjeev Kapoor (Partner, Khaitan & Co), Mr Dheeraj Nair (Partner, JSA), and Mr Ramesh Bharani Nagaratnam (Managing Director, RBN Chambers LLC).<\/p>\n

This panel focussed on the process of creating an enforceable arbitral award, starting from the initiation of arbitration to the final stages of scrutiny and the issuance of the award. The first question posed was, “What is the ideal Procedural Order No. 1 (PO1)?”<\/p>\n

Ramesh emphasized the significance of a thoughtful approach to PO1, stressing that it should not be treated as a mere formality or standard template. Instead, it should result from a consultative process between the parties and the tribunal. Key considerations for PO1 include whether the parties have reached a consensus on procedural matters, such as interlocutory applications or challenges to the tribunal. Additionally, PO1 should provide for Case Management Conference, which the tribunal can use as a supervisory tool to ensure smooth proceedings.<\/p>\n

On the issue of non-participating parties, Sanjeev highlighted the importance of ensuring that every party is given a fair opportunity to present their case, not just at the outset but throughout the arbitration process. Dheeraj agreed, adding that non-participation can sometimes be a deliberate strategy. Therefore, arbitrators must carefully assess whether a party is incapacitated or employing tactics to delay proceedings.<\/p>\n

Regarding the enforcement of awards in India, Sanjeev observed that many awards are frequently challenged, with some parties using this as a strategy to negotiate lower settlements. Soorjya noted, however, that since the 2015 amendments to the Arbitration Act, there has been a significant shift in litigants’ mindset toward award enforcement. Now, when a party challenges an award, they are often required to make a deposit, which can remain tied up for an extended period. This has led to a more pragmatic approach, where parties are more inclined to settle if they believe their chances of success in court are slim.<\/p>\n

On the subject of enforceability of awards issued under emergency arbitration provisions, Dheeraj pointed out that there is now greater certainty following the Amazon v. Future judgment, which set an important precedent.<\/p>\n

Mr Rajah then addressed the drafting of awards, noting that only a small percentage of awards are set aside in commercial arbitration hubs like Singapore and India. He stressed the importance of arbitrators being both firm and fair to all parties. This includes setting clear timelines when one party attempts to disrupt proceedings. Mr Rajah emphasized that the tribunal’s primary duty, as outlined by most arbitral institution rules, is to make “reasonable efforts” to ensure the award is enforceable. He advised arbitrators to familiarize themselves with the enforceability standards of the seat of arbitration as a minimum requirement. Additionally, he cautioned that tribunals should not allow themselves to be rushed by parties, as a well-considered award is more likely to withstand scrutiny and avoid challenges related to procedural fairness.<\/p>\n

The panel concluded with practical advice for parties: draft arbitration clauses carefully, choose both the jurisdiction and arbitrator wisely, conduct asset tracking early in the process, and ensure the award is well-reasoned.<\/p>\n

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The last segment of the Conference was an Oxford Style Debate on the motion “This House Believes that a World Without Investment Arbitration Would be a Better Place<\/span>”. The debate was moderated by Mr Aman Ahluwalia and Ms. Manini Brar (Arbridge Chambers)<\/p>\n

Arguing in favour of the motion, Mr. Salim Moollan KC (Brick Court Chambers) opened by posing a thought-provoking question to the audience: “A world without investment arbitration would be a better place—but for whom?” He noted that lawyers and funders would never support this motion, quipping, “turkeys don’t vote for Christmas.” Salim framed his argument around two core issues: what value the system claims to deliver and whether it’s truly designed to foster that value. In his view, it fails on both counts. He critiqued the system as being rooted in an outdated economic model from the 1960s, a time when colonial powers still dominated global affairs. He argued that investment arbitration continues to facilitate the transfer of wealth from developing nations to developed ones. He also contended that applying the private model of commercial arbitration to investment disputes leads to inconsistency and unpredictability. Moreover, he criticized the practice of repeat appointments of arbitrators, stating that individuals are often required to choose a side—either state or investor—leading to a growing argument that bias in the system is not only tolerated but seen as a positive feature. In his view, this undermines the very values the system claims to uphold.<\/p>\n

Building on Salim’s points, Mr Promod Nair SA argued that investment arbitration was flawed from its inception and has since evolved into a tool that primarily safeguards the interests of capital-exporting countries and the corporations based in them. He noted that many developing nations were unaware of the implications when they signed bilateral investment treaties (BITs), only realizing the consequences after facing their first claims. Promod further pointed out troubling trends such as treaty shopping and nationality shopping, where investors are deemed “foreign” only in a narrow legal sense, often with little or no actual foreign investment flowing into the respondent States.<\/p>\n

On the opposing side, Dr Tai Heng Cheng (Global Co — Head, Arbitration & Trade, Co — Managing Partner, Singapore, Sidley) argued that while the system is imperfect, it requires reform, not destruction. He acknowledged India’s scepticism, particularly given its track record in investment arbitration, but urged the audience to take a longer view. He explained that the core of investment arbitration—resolving disputes between state and non-state actors—is a vital international mechanism. Drawing a parallel to the Mahabharata, he likened the role of investment arbitration to Lord Krishna’s efforts to avoid the Kurukshetra war, concluding that while conflict may sometimes be unavoidable, a binding system of dispute resolution is crucial—and in today’s world, that system is investment arbitration.<\/p>\n

Mr Gourab Banerji SA, agreeing with Tai, acknowledged the criticisms but posed a crucial question: “Do foreign investors need protection?” His answer was unequivocal—yes, to safeguard against political and economic risks. If investment arbitration were to disappear, he argued, the alternatives, such as relying on national courts or diplomatic persuasion, would be far worse. He invoked the famous Churchillian analogy: “Democracy is the worst form of government, except for all the others.” In much the same way, Gourab contended that while investment arbitration is not without flaws, it remains the best available method of resolving these disputes. Rather than abandoning it, he urged for reforms to address its shortcomings.<\/p>\n

The debate was so closely contested that the judges—Justice Indu Malhotra (Former Judge, Supreme Court of India), Ms. Pallavi Shroff (Managing Partner, Shardul Amarchand Mangaldas), and Ms. Anuradha Dutt (Founder & Managing Partner (Delhi), DMD Advocates) issued a split verdict, with two voting in favour of the motion and one against.<\/p>\n

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The Conference concluded with Closing Remarks from Ms. Shwetha Bidhuri, Director & Head of SIAC’s South Asia Office.<\/p>\n

Disclaimer<\/span> \u2013 The views and opinions expressed in this report are solely those of the Speakers and do not necessarily reflect the official views of SIAC.<\/span><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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