Legal Risks of Crypto Futures Trading: Regulatory Uncertainty and Derivative Regulations

Certainly! Here is a detailed, academic, and professional analysis of the legal risks associated with cryptocurrency futures trading, focusing on regulatory uncertainty and derivative regulations, as per your instructions.

The advent of cryptocurrency futures trading has introduced a complex interplay of innovation and regulatory uncertainty, posing significant legal risks for market participants. Cryptocurrency futures, contracts obligating the buyer to purchase or the seller to sell a specific cryptocurrency at a predetermined future date and price, represent a sophisticated segment of the digital asset market. This market has experienced exponential growth, attracting both institutional and retail investors seeking leveraged exposure to the volatile cryptocurrency asset class. However, the nascent and rapidly evolving nature of this market has outpaced the development of clear, consistent, and globally harmonized regulatory frameworks. This regulatory ambiguity constitutes a primary legal risk, creating a challenging environment for exchanges, brokers, traders, and custodians operating within this space.

The core issue stems from the fundamental question of how cryptocurrencies and their derivatives are classified under existing financial regulations. Are cryptocurrencies securities, commodities, currencies, or an entirely new asset class requiring bespoke regulatory treatment? The answer to this question varies significantly across jurisdictions, leading to a fragmented global regulatory landscape. In the United States, for example, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have taken differing stances on certain cryptocurrencies, with the SEC primarily focusing on tokens issued through Initial Coin Offerings (ICOs) as potential securities, while the CFTC has classified Bitcoin and Ether as commodities. This jurisdictional divergence is further amplified globally, with countries like China imposing outright bans on cryptocurrency trading and mining, while others like Switzerland and Singapore have adopted more permissive and innovation-friendly approaches. This lack of uniform global standards creates a complex web of legal and compliance obligations, increasing the risk of regulatory arbitrage and inconsistent enforcement actions.

The inherent volatility and speculative nature of cryptocurrency markets exacerbate the legal risks associated with futures trading. Leverage, a key feature of futures contracts, amplifies both potential gains and losses, making it a high-risk instrument, particularly in such volatile markets. The absence of robust market surveillance and investor protection mechanisms, common in traditional regulated futures markets, further elevates these risks. Market manipulation, insider trading, and inadequate disclosure are significant concerns in the relatively unregulated cryptocurrency futures space. Moreover, the decentralized and cross-border nature of cryptocurrency exchanges and trading platforms complicates regulatory oversight and enforcement. Identifying responsible parties and applying jurisdictional authority in cases of misconduct becomes significantly more challenging in this globalized, digital environment. Therefore, understanding and navigating the legal risks stemming from regulatory uncertainty is paramount for all participants in the cryptocurrency futures market to ensure sustainable and compliant operations.

The global regulatory landscape for cryptocurrency derivatives, including futures, is characterized by a significant lack of harmonization and a diverse range of approaches, creating a patchwork of legal frameworks across jurisdictions. This divergence stems from differing interpretations of existing financial regulations, varying levels of risk tolerance towards crypto assets, and diverse national priorities regarding financial innovation and consumer protection. According to a report by the Financial Stability Board (FSB) in 2022, most jurisdictions are still in the early stages of developing comprehensive regulatory frameworks for crypto-assets, including derivatives. The FSB report emphasized the need for international cooperation and coordination to address the cross-border nature of crypto markets and prevent regulatory arbitrage.

In the United States, the regulatory oversight of cryptocurrency futures is primarily divided between the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC), based on the underlying asset classification. The CFTC asserts jurisdiction over commodity derivatives, and since classifying Bitcoin and Ether as commodities, it has allowed the listing and trading of Bitcoin and Ether futures contracts on CFTC-regulated exchanges. As of 2023, exchanges like CME Group and Bakkt offer CFTC-regulated Bitcoin futures, and CME Group also launched Ether futures in 2021. However, the SEC maintains a stricter stance, particularly concerning cryptocurrencies deemed to be securities. While the SEC has not explicitly approved cryptocurrency futures based on securities, the ongoing debate about whether certain cryptocurrencies, beyond Bitcoin and Ether, are securities creates regulatory uncertainty for futures contracts based on these assets. This jurisdictional ambiguity within the US itself highlights the complexity of the regulatory environment.

Europe presents another layer of complexity with the Markets in Financial Instruments Directive II (MiFID II) and the upcoming Markets in Crypto-assets (MiCA) regulation. MiFID II, while not specifically designed for crypto-assets, can potentially apply to certain crypto derivatives if they are classified as financial instruments. The European Securities and Markets Authority (ESMA) has issued warnings about the risks of investing in crypto-assets and their derivatives, emphasizing the lack of investor protection under existing EU financial regulations for many crypto-assets. The MiCA regulation, expected to be fully implemented by 2024, aims to establish a harmonized regulatory framework for crypto-assets across the European Union. However, MiCA's scope and application to derivatives are still being clarified, and its impact on existing national regulations remains to be fully seen. Furthermore, individual EU member states have adopted varying approaches, with some, like Germany, taking a relatively proactive stance in regulating crypto-assets, while others have been slower to develop specific frameworks.

Asian jurisdictions exhibit a wide spectrum of regulatory approaches, ranging from outright bans to more permissive regimes. China, once a major hub for cryptocurrency trading and mining, has implemented a comprehensive ban on all cryptocurrency transactions, including futures trading, citing concerns about financial stability and illicit activities. This drastic measure contrasts sharply with jurisdictions like Singapore and Hong Kong, which have sought to position themselves as crypto-friendly hubs. The Monetary Authority of Singapore (MAS) has established a licensing regime for digital payment token service providers, which can encompass cryptocurrency exchanges offering futures trading. Hong Kong's Securities and Futures Commission (SFC) has also introduced a regulatory framework for virtual asset trading platforms, including those offering derivatives, focusing on investor protection and anti-money laundering measures. Japan, another significant Asian market, has recognized cryptocurrencies as property and has regulated cryptocurrency exchanges under its Payment Services Act, with the Financial Services Agency (FSA) overseeing these exchanges and their derivatives offerings. This diverse regulatory landscape across Asia further underscores the challenges of global compliance for cryptocurrency futures trading platforms.

The lack of international harmonization and the fragmented regulatory approaches create significant legal risks. Regulatory arbitrage becomes a concern as exchanges may seek to domicile in jurisdictions with less stringent regulations, potentially undermining global efforts to mitigate risks. Market participants operating across multiple jurisdictions face increased compliance costs and complexity in navigating diverse legal requirements. Enforcement actions can be inconsistent and unpredictable, depending on the jurisdiction and the specific regulatory interpretation. The ongoing evolution of regulatory frameworks globally means that legal risks are not static; they are subject to change as regulations develop and are implemented in different jurisdictions. Therefore, continuous monitoring of regulatory developments and proactive legal risk management are crucial for participants in the cryptocurrency futures market.

Derivative Regulations Applied to Cryptocurrency Futures: Adapting Traditional Frameworks to Novel Assets

The application of existing derivative regulations, initially designed for traditional financial instruments, to the novel asset class of cryptocurrency futures presents a complex and evolving legal challenge. Many jurisdictions are grappling with how to adapt established regulatory frameworks to the unique characteristics of crypto-assets, including their decentralized nature, volatility, and global reach. Traditional derivative regulations, such as the Dodd-Frank Act in the United States and MiFID II in the European Union, were primarily designed to mitigate systemic risks, protect investors, and prevent market abuse in established financial markets. Applying these frameworks to the cryptocurrency futures market requires careful consideration of the specific risks and features of this nascent market.

One key aspect of derivative regulation is licensing and registration requirements for exchanges and intermediaries offering futures trading. In traditional finance, entities dealing in regulated derivatives are typically required to be licensed and registered with relevant regulatory authorities, such as the CFTC in the US or national competent authorities under MiFID II in the EU. The application of these requirements to cryptocurrency futures exchanges varies across jurisdictions. In the US, exchanges offering CFTC-regulated Bitcoin futures are required to register as Designated Contract Markets (DCMs) or operate as Swap Execution Facilities (SEFs), adhering to CFTC regulations. Similarly, in jurisdictions like Singapore and Hong Kong, licensing regimes are being implemented for cryptocurrency exchanges that may extend to those offering derivatives. However, the global landscape remains fragmented, and many cryptocurrency futures exchanges operate without explicit regulatory licenses, particularly those based offshore or in jurisdictions with less stringent enforcement. This lack of consistent licensing and registration creates legal risks for both the exchanges themselves and their users.

Know Your Customer (KYC) and Anti-Money Laundering (AML) regulations are crucial components of derivative regulation aimed at preventing illicit activities and ensuring market integrity. These regulations mandate financial institutions to verify the identity of their customers and monitor transactions for suspicious activity. In the context of cryptocurrency futures, applying KYC/AML requirements presents unique challenges due to the pseudonymity and borderless nature of crypto transactions. While many regulated cryptocurrency exchanges have implemented KYC/AML procedures, the level of rigor and enforcement varies. The Financial Action Task Force (FATF), the global standard-setting body for AML and counter-terrorist financing, has issued guidance on applying its standards to virtual assets and virtual asset service providers (VASPs), which includes cryptocurrency exchanges. However, the implementation of FATF recommendations is still evolving globally, and consistent enforcement of KYC/AML standards in the cryptocurrency futures market remains a work in progress. Failure to comply with KYC/AML regulations can result in significant legal and financial penalties for exchanges and participants.

Market manipulation and surveillance are critical concerns in derivative markets, and regulatory frameworks typically include provisions to detect and deter manipulative practices. These provisions often involve market surveillance systems, reporting requirements for large trades, and prohibitions against insider trading and other forms of market abuse. Applying these principles to the cryptocurrency futures market is particularly challenging due to the market's fragmentation, limited transparency in some areas, and the potential for cross-market manipulation between spot and futures markets. Regulatory bodies like the CFTC and ESMA are increasingly focusing on market surveillance in crypto-asset markets, but the effectiveness of these efforts is still being assessed. A 2020 report by the IOSCO (International Organization of Securities Commissions) highlighted the challenges of market surveillance in crypto-asset markets due to data gaps and the lack of consolidated audit trails. The decentralized nature of some cryptocurrency exchanges and the use of privacy-enhancing technologies can further complicate market surveillance efforts. Robust market surveillance and enforcement mechanisms are essential to maintain market integrity and investor confidence in cryptocurrency futures trading.

Margin requirements and leverage limits are key regulatory tools used in derivative markets to manage counterparty risk and prevent excessive speculation. Margin requirements mandate traders to deposit a certain percentage of the contract value as collateral, while leverage limits restrict the amount of borrowed capital that can be used for trading. In traditional futures markets, these requirements are typically set by exchanges and regulators based on risk assessments. In the cryptocurrency futures market, margin requirements and leverage levels vary significantly across exchanges, with some offering extremely high leverage, increasing the potential for both gains and catastrophic losses. Regulatory scrutiny of leverage in crypto futures is increasing, with some jurisdictions considering imposing limits to protect retail investors. For example, in 2020, the UK's Financial Conduct Authority (FCA) banned the sale of crypto-derivatives, including futures, to retail clients, citing concerns about their complexity and riskiness. Harmonized approaches to margin requirements and leverage limits in cryptocurrency futures are still lacking globally, creating potential regulatory arbitrage and uneven levels of investor protection.

Investor protection is a paramount concern in derivative regulation, aiming to ensure fair and transparent markets and protect investors from fraud and unfair practices. Traditional derivative regulations include investor protection measures such as disclosure requirements, suitability assessments, and dispute resolution mechanisms. Applying these principles to cryptocurrency futures raises challenges due to the often-limited disclosure by some crypto exchanges, the complexity of crypto-assets for retail investors, and the lack of established investor redress mechanisms in many jurisdictions. Regulatory warnings and investor education campaigns are becoming increasingly common, but more comprehensive investor protection frameworks are needed to address the specific risks of cryptocurrency futures trading. The suitability of these complex and volatile products for retail investors is a subject of ongoing debate among regulators and policymakers. Strengthening investor protection measures is crucial for fostering sustainable growth and public trust in the cryptocurrency futures market.

Enforcement of regulations in the decentralized and globally interconnected cryptocurrency futures market presents significant challenges, leading to potential legal liabilities for market participants. The borderless nature of crypto-assets, the use of pseudonymous transactions, and the dispersion of exchanges across various jurisdictions complicate traditional enforcement approaches. Jurisdictional complexities are paramount, as identifying the responsible parties and determining which jurisdiction has authority to take action can be exceedingly difficult in cross-border crypto transactions. This creates an environment where regulatory arbitrage can flourish, and illicit activities may be harder to trace and prosecute.

One of the primary enforcement challenges stems from the decentralized nature of some cryptocurrency exchanges and trading platforms. Unlike traditional regulated exchanges that have a clear physical presence and are subject to the laws of a specific jurisdiction, many crypto exchanges operate online, with servers and personnel distributed globally, making it difficult to pinpoint their legal domicile and subject them to specific national regulations. This decentralization can hinder regulatory bodies' ability to conduct inspections, gather evidence, and enforce compliance. Furthermore, the use of privacy-enhancing technologies and the pseudonymity of blockchain transactions can complicate investigations into market manipulation, insider trading, and other illicit activities. While blockchain technology offers transparency in transaction records, tracing the real-world identities behind wallet addresses and transactions can be a significant hurdle for law enforcement and regulators.

Jurisdictional arbitrage is a significant concern in the cryptocurrency futures market. Exchanges may choose to domicile in jurisdictions with lax regulatory oversight or weak enforcement mechanisms to avoid stricter regulations in other countries. This can create a "race to the bottom" in regulatory standards and undermine global efforts to mitigate risks in the crypto-asset space. Enforcing regulations against exchanges based in offshore jurisdictions can be particularly challenging, requiring international cooperation and mutual legal assistance treaties, which may not always be readily available or effective. The lack of a globally harmonized regulatory framework and the uneven enforcement landscape exacerbate the problem of jurisdictional arbitrage.

Legal liabilities for market participants in the cryptocurrency futures market can arise from various sources, including regulatory violations, contractual breaches, and tortious conduct. Exchanges and brokers can face regulatory enforcement actions, including fines, penalties, and even license revocation, for failing to comply with applicable regulations, such as licensing requirements, KYC/AML obligations, market manipulation prohibitions, and investor protection standards. Traders can also face legal liabilities for engaging in market manipulation, insider trading, or other prohibited practices. Furthermore, contractual disputes between exchanges and users, or between brokers and clients, can lead to legal claims and litigation. The legal framework governing these disputes can be uncertain, particularly in cross-border transactions and in jurisdictions where crypto-assets are not clearly defined under existing laws.

Examples of enforcement actions in the cryptocurrency futures space are gradually emerging as regulators increase their scrutiny of this market. In the United States, the CFTC has brought enforcement actions against several cryptocurrency exchanges and individuals for operating unregistered futures trading platforms, engaging in illegal off-exchange commodity derivative transactions, and manipulating cryptocurrency prices. For instance, in 2020, the CFTC filed and settled charges against BitMEX, a major cryptocurrency derivatives exchange, for operating an unregistered trading platform and failing to implement adequate KYC/AML procedures. The SEC has also taken enforcement actions related to crypto-assets, primarily focusing on ICOs and tokens deemed to be securities, but its jurisdiction over cryptocurrency futures based on securities is still evolving. In Europe, national competent authorities have also taken enforcement actions against crypto-asset firms for regulatory breaches, although publicly reported cases specifically focusing on futures are less prevalent to date. The increasing regulatory scrutiny and enforcement actions signal a growing focus on compliance and accountability in the cryptocurrency futures market.

International cooperation is crucial to address the enforcement challenges in the global cryptocurrency futures market. Organizations like the FSB, FATF, and IOSCO are promoting international coordination and information sharing among regulatory bodies to enhance oversight and enforcement in the crypto-asset space. Bilateral and multilateral agreements between jurisdictions can facilitate cross-border investigations and enforcement actions. However, achieving effective international cooperation in the rapidly evolving and often politically sensitive area of cryptocurrency regulation remains a complex and ongoing process. The effectiveness of enforcement in the cryptocurrency futures market will depend on the continued development of regulatory frameworks, increased international cooperation, and the willingness of regulatory bodies to actively monitor and enforce compliance in this dynamic and challenging environment.

Impact of Regulatory Uncertainty on Market Development and Innovation in Crypto Futures

Regulatory uncertainty significantly impacts the development and innovation within the cryptocurrency futures market, creating both obstacles and potential distortions in its growth trajectory. The lack of clear and consistent rules across jurisdictions can stifle innovation, discourage institutional participation, and create an uneven playing field for market participants. While some level of regulatory uncertainty is inherent in emerging markets, the prolonged ambiguity surrounding cryptocurrency futures regulation poses a substantial impediment to the market's maturation and mainstream adoption. This uncertainty affects various aspects of market development, including institutional investment, product innovation, market liquidity, and overall market stability.

One of the most significant impacts of regulatory uncertainty is its chilling effect on institutional investment in cryptocurrency futures. Institutional investors, such as pension funds, insurance companies, and traditional asset managers, typically operate under strict regulatory mandates and risk management frameworks. These institutions require regulatory clarity and certainty before allocating significant capital to new asset classes or markets. The ongoing regulatory ambiguity surrounding cryptocurrency futures makes it difficult for many institutional investors to confidently participate in this market, as they face challenges in assessing legal and compliance risks, obtaining internal approvals, and meeting fiduciary duties. A 2021 survey by Fidelity Digital Assets found that regulatory uncertainty was the primary concern among institutional investors considering investing in digital assets. This hesitancy from institutional investors can limit the influx of capital into the cryptocurrency futures market, potentially hindering its growth and liquidity.

Regulatory uncertainty can also stifle product innovation in the cryptocurrency futures space. The lack of clear regulatory guidelines can discourage exchanges and financial institutions from developing and launching new and innovative crypto-derivative products, fearing potential regulatory backlash or compliance challenges. Innovation in areas such as decentralized derivatives, tokenized futures, and more complex derivative structures may be particularly affected by regulatory ambiguity. Companies may be hesitant to invest in research and development for innovative products if the regulatory path to market is unclear or fraught with legal risks. This can slow down the evolution of the cryptocurrency futures market and limit its potential to offer a wider range of risk management and investment tools.

Market liquidity and price discovery in cryptocurrency futures can also be affected by regulatory uncertainty. Uncertainty can lead to market fragmentation, as exchanges and liquidity providers may choose to operate in jurisdictions with more favorable regulatory environments, rather than consolidating liquidity in a globally unified market. This fragmentation can reduce overall market liquidity and potentially impact the efficiency of price discovery. Furthermore, regulatory uncertainty can contribute to market volatility, as regulatory announcements or enforcement actions can trigger price swings and market disruptions. Stable and predictable regulatory frameworks are essential for fostering deep and liquid markets that facilitate efficient price discovery and risk management.

Regulatory uncertainty can also create an uneven playing field for market participants. Exchanges and firms operating in jurisdictions with stricter regulations may face higher compliance costs and operational burdens compared to those operating in less regulated jurisdictions. This can create competitive disadvantages and potentially drive business towards less regulated markets, exacerbating the problem of regulatory arbitrage. A level playing field, established through consistent and harmonized regulations, is crucial for fostering fair competition and sustainable market growth.

However, it is important to acknowledge that some argue that a degree of regulatory flexibility or a "sandbox" approach can be beneficial for fostering innovation in nascent markets like cryptocurrency futures. Proponents of this view argue that overly prescriptive or premature regulations could stifle innovation and hinder the development of beneficial technologies and market practices. They suggest that regulators should adopt a more adaptive and iterative approach, allowing for experimentation and innovation while gradually developing regulatory frameworks based on evolving market developments and risk assessments. Finding the right balance between fostering innovation and mitigating risks is a key challenge for regulators in the cryptocurrency futures space.

Ultimately, reducing regulatory uncertainty is crucial for the long-term sustainable development of the cryptocurrency futures market. Clear, consistent, and globally coordinated regulatory frameworks can provide market participants with the necessary legal certainty to operate compliantly, attract institutional investment, foster product innovation, enhance market liquidity, and promote overall market stability. While the precise contours of future regulations are still evolving, ongoing dialogues between regulators, industry participants, and policymakers are essential to shape a regulatory landscape that supports responsible innovation and mitigates the inherent risks of cryptocurrency futures trading. A well-defined and balanced regulatory framework is not just about managing risks; it is also about unlocking the potential benefits of this emerging market and fostering its responsible growth within the broader financial ecosystem.

Navigating the complex and evolving legal risks associated with cryptocurrency futures trading requires proactive strategies and a commitment to compliance for all market participants, including exchanges, brokers, and traders. Given the regulatory uncertainty and the diverse global landscape, a robust legal risk management framework is essential for ensuring sustainable operations and mitigating potential liabilities. These strategies should focus on proactive compliance, due diligence, continuous monitoring of regulatory developments, and seeking expert legal counsel.

For cryptocurrency futures exchanges and trading platforms, establishing a robust compliance program is paramount. This program should encompass key areas such as licensing and registration, KYC/AML compliance, market surveillance, data security, and investor protection. Exchanges should proactively engage with regulatory authorities in relevant jurisdictions to understand and comply with applicable regulations. Seeking legal advice to determine the appropriate regulatory framework and to develop compliant operational procedures is crucial. Implementing robust KYC/AML procedures, including customer due diligence and transaction monitoring, is essential to prevent illicit activities and meet regulatory expectations. Investing in sophisticated market surveillance systems to detect and deter market manipulation and insider trading is also critical. Furthermore, exchanges should prioritize data security and implement measures to protect user data and prevent cyberattacks, given the increasing regulatory focus on data protection. Transparency and clear communication with users regarding risks, fees, and trading rules are also important aspects of a comprehensive compliance program.

Brokers and intermediaries involved in cryptocurrency futures trading also need to implement robust compliance measures. Brokers should conduct thorough due diligence on the exchanges they partner with, ensuring that these exchanges have adequate regulatory compliance and security measures in place. Brokers should also comply with KYC/AML regulations when onboarding clients and processing transactions. Providing clear and accurate disclosures to clients about the risks of cryptocurrency futures trading, including leverage risks and market volatility, is essential. Suitability assessments may be necessary to ensure that these complex products are offered only to clients with appropriate knowledge and risk tolerance. Brokers should also establish robust internal controls to prevent employee misconduct and ensure compliance with all applicable regulations.

Traders participating in cryptocurrency futures markets, whether institutional or retail, also have a responsibility to understand and mitigate legal risks. Traders should conduct due diligence on the exchanges and brokers they use, ensuring that these platforms are reputable and comply with relevant regulations. Understanding the terms and conditions of trading on these platforms, including margin requirements, fees, and dispute resolution mechanisms, is crucial. Traders should be aware of market manipulation risks and avoid engaging in any practices that could be construed as manipulative or illegal. Complying with KYC/AML requirements when opening accounts and conducting transactions is also necessary. Retail investors, in particular, should be aware of the high risks associated with leveraged cryptocurrency futures trading and should only invest capital they can afford to lose. Seeking financial advice before engaging in crypto futures trading is recommended, especially for those new to derivatives or crypto-assets.

Continuous monitoring of regulatory developments is crucial for all participants in the cryptocurrency futures market. The regulatory landscape is rapidly evolving, and new regulations, enforcement actions, and guidance are being issued frequently in various jurisdictions. Market participants need to stay informed about these developments and adapt their compliance programs accordingly. Subscribing to regulatory updates, industry publications, and legal alerts can help track these changes. Participating in industry forums and engaging with regulatory bodies can also provide valuable insights into evolving regulatory expectations. Flexibility and adaptability are key to navigating the dynamic regulatory environment of cryptocurrency futures.

Seeking expert legal counsel is a vital strategy for mitigating legal risks in the complex cryptocurrency futures market. Engaging lawyers with expertise in financial regulation, derivatives law, and crypto-assets can provide invaluable guidance on navigating regulatory requirements, developing compliance programs, and addressing legal challenges. Legal counsel can assist with interpreting complex regulations, assessing legal risks, and developing strategies to mitigate those risks. They can also provide representation in regulatory investigations or enforcement actions and assist with dispute resolution. Proactive legal advice is a valuable investment for ensuring long-term compliance and mitigating potential legal liabilities in this rapidly evolving market.

In conclusion, navigating the legal risks of cryptocurrency futures trading requires a multi-faceted approach encompassing proactive compliance, due diligence, continuous monitoring of regulatory developments, and seeking expert legal counsel. For exchanges, brokers, and traders, a commitment to robust legal risk management is not just about avoiding penalties; it is about building trust, fostering market integrity, and ensuring the sustainable growth of this innovative but complex market. As the regulatory landscape continues to evolve, adaptability, vigilance, and a proactive approach to legal risk management will be essential for success in the cryptocurrency futures space.

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