Authors
Charlotte Hill

Charlotte Hill

Partner

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Daniel Hirschfield

Daniel Hirschfield

Senior professional support lawyer

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Authors
Charlotte Hill

Charlotte Hill

Partner

Read More
Daniel Hirschfield

Daniel Hirschfield

Senior professional support lawyer

Read More

4 November 2021

Financial services update – 1 of 23 Insights

Financial services regulatory update - November 2021

Featured in this month's newsletter:

  • FCA's annual perimeter report.
  • UK roadmap on sustainable investing and green finance.
  • Consumer credit initiatives, including regulation of buy-now pay-later products.
  • The impact of cryptoassets on financial stability.
  • Response to the call for evidence on the Payment Landscape Review.

Please join us for our interactive roundtable on the SMCR conduct rules.

General financial services regulation

FCA: annual perimeter report

On 21 October 2021, the FCA released their annual perimeter report, which helps to explain what it does and does not regulate. The report calls for legislative changes in areas which are beyond its regulatory remit. The key elements of the report include:

  • The Online Safety Bill should apply to both user-generated and paid-up advertising.
  • The Senior Managers and Certification Regime should be extended to payment services and e-money firms.
  • The Financial Promotions Order should be amended to reduce risk to ordinary investors who are at risk of receiving financial promotions, such as for high-risk products.
  • Progress has been made on bringing buy-now pay-later and funeral plans within the FCA's regulatory remit.

The FCA will formally discuss the perimeter report with the Economic Secretary to the Treasury later in 2021, the minutes of which will be published.

Young investors driven by competition

On 20 October 2021, the FCA published the results of a survey which found that three quarters of younger, high-risk investors felt competitive when making investments in high-risk products. 76% of under 40-year-olds who have made high-risk investments, such as in cryptocurrency, stated they were driven by competition with others or themselves, and 50% said online hype was behind their investment decisions.

This coincides with the FCA's new InvestSmart campaign, helping new investors understand the potential risks of investments.

FCA: hybrid working expectations for firms

On 11 October 2021, the FCA published a remote or hybrid working webpage, outlining their expectations for firms. It is anticipated that as the FCA understands more about how firms intend to operate, its expectations of firms will evolve. For existing firms planning remote or hybrid working, they must consider how they operate, and how they engage with the FCA. For example, they should be able to prove that remote or hybrid working will not affect their location in the UK. Additionally, firms cannot, amongst other things, prevent the FCA receiving information, damage market integrity, or cause detriment to consumers. 

For firms applying to be registered or authorised, they must continue to meet the threshold conditions for all the regulated activities which they have, or will have, permission for. The FCA requires that the specific details regarding hybrid or remote working are included in firms' applications. For international firms, they should continue to have a physical presence or establishment in the UK.

Cryptocurrencies

Bank of England (BoE): the impact of crypto on financial stability

On 13 October 2021, Jon Cunliffe, BoE Deputy Governor (Financial Stability), gave a speech on the impact of crypto on the UK financial system's stability. The key points of the speech include:

  • Financial stability risks may grow rapidly as the crypto world and traditional finance interact in a predominantly unregulated space. The growth of these risks depends on the response by the regulatory and supervisory authorities.
  • It is not the underlying technology that requires regulation, but the activities being performed by that technology require a consistent regulatory approach (regardless of the technology being used).
  • The complex global structure of decentralised finance creates unique regulatory challenges, and its rapid growth means that regulators must address a broad range of financial services risks. Regulators must also ensure that the risks are managed to the same standards as they are managed in the traditional finance sector.
  • The direct issue for financial stability around unbacked cryptoassets (for example, Bitcoin) is the impact of a significant price correction. Regarding backed cryptoassets (that is, stablecoins), regulatory authorities need to ensure that the current systemic payment systems standards apply equally effectively to any systemic payment system that uses stablecoins.

FSB report on regulation, supervision, and oversight of global stablecoin

On 7 October 2021, the Financial Stability Board (FSB) published a report on the progress of global stablecoin regulation, supervision, and oversight in 48 jurisdictions. Generally, the jurisdictions were still at an early stage of implementation, and international standard-setting bodies are assessing how far existing international standards and principles could apply to stablecoin arrangements. The FSB will give ongoing support for the implementation of authorities' recommendations, as well as facilitate standard-setting bodies' co-ordination.

In January 2022, the FSB will initiate a review of the recommendations and address any gaps, as well as consult with other standard-setting bodies and international organisations.

CPMO and IOSCO consult on supplication of PFMI to stablecoin

On 6 October 2021, the Committee on Payments and Market Infrastructures (CPMO) and the International Organisation of Securities Commission (IOSCO) launched a consultation report on the application of the Principles for Financial Market Infrastructures (PFMI) to stablecoin arrangements, which demonstrates a movement towards ensuring there is consistent application of international standards towards crypto-focused financial services. The CPMI and IOSCO set out in the report:

  • Guidance for stablecoin arrangements (SAs) observing certain aspects of the PFMI. Specifically, these relate to money settlements (principle 9), governance (principle 2), settlement finality (principle 8), and the framework for comprehensive management of risks (principle 3).
  • Authorities should consider issues such as the size of an SA, its dependencies and connectiveness, its suitability, and the nature and risk profile of its activities.

The deadline for responses to the consultation report is 1 December 2021.

EU matters

European Commission: 2022 work programme

On 19 October 2021, the European Commission outlined their work programme for 2022, alongside annexes and two factsheets. In relation to financial services, Annex I includes the Commission's intentions to deliver an initiative on instant payments, with a legislative proposal expected in Q2 2022. Annex III includes pending proposals relevant to financial services, such as: regulation to digital operational resilience for the financial sector in the EU; regulation on markets in crypto assets; a Directive on consumer credit; and proposals to strengthen the anti-money laundering and counter-terrorist financing frameworks in the EU.

The Commission will present its 2022 work programme in the European Parliament, and the Commission, Parliament and Council will develop a joint declaration on the EU's legislative priorities.

ESMA chair appointed

On 15 October 2021, the Council of the EU announced that it had appointed Verena Ross as the chair of the ESMA, and she will take up the role on 1 November 2021 for five years. Ms Ross will be replacing Steven Maijoor, who was Executive Director at ESMA between 2011 and 2021.

Council of the EU: Joint Committee of ESAs 2022 work programme

On 30 September 2021, the Council of the EU published the 2022 work programme of the Joint Committee of the European Supervisory Authorities (ESAs). The Joint Committee stated that it will, amongst other things:

  • Draft technical standards under the Sustainable Finance Disclosure Regulation.
  • Further develop artificial intelligence and, for supervisory reasons, use behavioural finance findings.
  • Monitor and assess developing cross-sector financial stability risks and vulnerabilities following the pandemic.
  • Monitor the impact of Brexit.
  • Promote co-ordination and co-operation to scale-up innovation in the financial sector through the European Forum for Innovation Facilitators.
ESG

BoE: guides to help the financial industry effectively manage climate-related risks

On 21 October 2021, the Bank of England (BoE)'s Climate Financial Risk Forum (CFRF) published guides for the financial industry, helping them to effectively manage financial risks which are climate-related. This is the second set of guides, which help firms overcome challenges in areas such as online scenario analysis, risk appetite statements, and climate metrics. The five CFRF working groups published guides covering the following topics:

  • Risk management: aimed at helping retail and corporate banks, insurers and asset managers to develop risk appetite statements which incorporate climate-related financial risks.
  • Scenario analysis: in Q1 2022, a public online scenario analysis tool will be published, aimed at smaller firms who cannot attempt the analysis due to lack of experience and resources.
  • Disclosure: case studies on disclosure from a range of organisations, as well as guidance that highlights the legal risks associated with firms publishing climate-related disclosures.
  • Innovation: identifying and sharing how to mobilise financial capital and manage the transition towards climate targets.
  • Climate data and metrics: recommends five areas where climate-related metrics could be used, including physical risks and portfolio decarbonisation.

2050 climate targets into milestones for banks

On 20 October 2021, the European Central Bank (ECB)'s Supervisory Board Vice-Chair gave a speech about requirements for banks to set milestones for 2050 climate targets. Key elements of his speech include:

  • Banks need to set targets to make them suitable for a carbon-neutral economy by 2050.
  • Currently, banks themselves consider 90% of their practices to be only partially, or not at all, compliant with the supervisory targets of the ECB. Banks need to undertake short and medium-term planning to ensure their strategies mitigate the longer-term climate change impact.
  • A legally binding requirement should be introduced calling for banks to have plans, compatible with the Paris Agreement, as a finishing touch to their current initiatives.
  • Banks should develop their business model and plan to include intermediate milestones from now until 2050, as well as relevant key performance indicators to understand risks arising if they deter from their transition path.

UK roadmap on sustainable investing and green finance

On 18 October 2021, HM Treasury published a policy paper, setting out the government's plans to align the financial system with the UK's net zero commitment, and building on the government's Green Finance Strategy. They plan to implement three phases within the financial system: informing investors and consumers; acting on the information; and shifting physical flows. The government also announced the UK green taxonomy – a type of dictionary, developing an understanding about which economic activities are 'green'. The environmental objectives of the green taxonomy include transition to a circular economy; climate change adaptation and mitigation; and pollution prevention and control.

In November 2021, a series of discussion papers will be published, focusing on Sustainability Disclosure Requirements (SDR) disclosures, sustainable investment labelling, and consumer-facing product-level SDR disclosures. The SDR will cover three types of disclosures:

  • Corporate disclosures: requirements for companies making sustainability disclosures, including the government developing a mechanism to adopt and endorse international sustainability standards in the UK.
  • Asset manager and asset owner disclosure: requirements to disclose how they take sustainability into account, which help consumers determine if their assets are being managed in alignment with their sustainability preferences.
  • Investment product disclosure: requirements for creators of investment products to report on the products' sustainability impacts, as well as the related financial opportunities and risks.

In Q1 2022, a consultation on climate change mitigation and adaptation criteria will be published. Furthermore, during 2022, the government plans to update the Green Finance Strategy.

TCFD guidance on climate metrics, targets, and transition plans

On 14 October 2021, the Task Force on Climate-related Financial Disclosures (TCFD) published the following:

  • The fourth TCFD status report, which includes that over 50% of firms did disclose their climate-related opportunities and risks, but also that further progress is needed.
  • Implementing guidance, updating the specific elements relating to certain recommended disclosures on strategy, metrics, and targets. The guidance also includes disclosure of net zero transition plans, as well as seven types of cross-industry metrics which are key to assess financial impact, such as capital deployment.
  • Guidance on metrics, targets, and transition plans, providing information useful to estimate the financial impacts of climate-related issues.

NGFS report on biodiversity and financial stability

On 8 October 2021, the Network for Greening the Financial System (NGFS) published a report on financial stability and biodiversity. The report states that the potential financial implications from biodiversity loss means that banks and financial supervisors should begin to assess those risks, for example by:

  • Becoming more familiar with biodiversity-economy models.
  • Informing financial institutions about the importance of biodiversity-related risks.
  • Build tools, skills and capabilities to address economic and financial risks relating to biodiversity, alongside assessing the dependencies and impact of the financial institution on biodiversity.
 
Payment services and systems

PSR: response paper on Confirmation of Payee 

On 21 October 2021, the Payment Systems Regulator (PSR) published a response paper on Confirmation of Payee (CoP), and its response to its call for views on its related consultation paper. It also updated its webpage, outlining that a widespread adoption of CoP is a key priority in the UK.

The response paper outlines that the PSR want payment to be safe and secure for customers, particularly those who are vulnerable. Since the implementation of 'Phase 1', where the six largest banking groups were called to introduce CoP, the PSR are now focused on Phase 2. The next steps are to:

  • Monitor the progress of the banks currently implementing CoP
  • Consult in Q4 2021 on whether it requires the end of dual running by a certain date in 2022.
  • Decide, in 2022, whether the PSR needs to intervene to deliver the remaining elements of Phase 2 (specifically, implementing CoP by non-participants and delivering secondary reference data capability).

PSR: policy statement on consumer protection in interbank payments

On 11 October 2021, the Payment Systems Regulator (PSR) published a policy statement on consumer protection in interbank payments, stating that they do not plan to intervene in the market now, but does inspect Faster Payments participants to:

  • Tell customers what protections they are afforded.
  • Share and identify payment risk levels and minimise customer harm.
  • Co-ordinate to reduce the risk of payment fraud.

The policy statement also includes responses to the PSR's February 2021 call for views on the topic. The PSR will closely follow developments and intervene where necessary.

HMT: Payment Landscape Review call for evidence response

On 11 October 2021, HM Treasury published its response to the call for evidence on the Payments Landscape Review, setting out its plan for a payment sector at the apex of technology, as well as ensuring operational resilience, consumer protection, and competition. HMT identified the following key actions and areas:

  • Developing cross-border payments, to ensure they are quick, cheap and seamless.
  • Equip Faster Payments for the future, ensuring that consumers are protected when a payment goes wrong.
  • Ensuring the legislative and regulatory framework for payments is proportionate and agile, and consumer protection and payment networks are resilient.
  • Ensuring Open Banking enabled payments are safely and securely used for consumers buying in shops and online, maintaining competition and choice between payment networks.

PSR: final guidance on UK Interchange Fee Regulation

On 29 September 2021, the Payment Systems Regulator (PSR) published a policy statement on the UK Interchange Fee Regulation. This replaces its previous version (published in 2020) to reflect changes due to Brexit, addressing differences between the EU Interchange Fee Regulations (IFR) and other regulatory framework changes.

Consumer credit

Buy-now pay-later regulation consultation

On 21 October 2021, the government launched its consultation on regulating buy-now pay-later (BNPL) products, following calls for regulation in the Woolard Review. The consultation attempts to outline the scope of potential regulation, as well as seeking views on a range of regulations that could be put in place for BNPL products. It aims for regulatory controls to be focused on the areas on lending that are linked to potential consumer detriment.

The consultation closes on 6 January 2022. We previously discussed the Woolard Review in our March update.

European Parliament: Directive on credit servicers and credit purchasers

On 19 October 2021, the European Parliament voted to adopt the proposed Directive on credit servicers and credit purchasers, alongside publishing the text of the position it took on the Directive. Following this, the Council will adopt the proposed Directive, and it will enter into force on the 20th day following its publication in the Official Journal of the European Union.

FCA: current consumer credit initiatives

On 8 October 2021, Nisha Arora (FCA Director of Consumer and Retail Policy) gave a speech on the next steps in the regulation of consumer credit, including the following key areas:

  • High-cost short-term credit: following recent developments in this market, the FCA will consider working with others to support solutions for customers without access to credit, where solution fall outside of its regulatory perimeter.
  • Regulation of buy-now pay-later (BNPL): the FCA anticipates that the government will consult on a proposed regulatory framework for BNPL, followed by an FCA consultation paper.
  • Supporting borrowers in financial difficulty: the FCA expects to see people remaining in, or falling into, financial difficulty in the aftermath of COVID-19, and will maintain its focus on outcomes for credit borrowers who are in such difficulty.

FCA: policy development update

On 10 September 2021, the FCA updated its policy development update (PDU) webpage, outlining future and recent FCA publications. In relation to consumer credit, this includes changes requiring firms to provide credit card and retail revolving credit facilities to allocate repayment received to the debt (subject to the highest rate of interest first).

Banking and insurance

PRA: final rules for implementing Basel III standards

On 14 October 2021, the PRA published a policy statement on the final rules implementing Basel III standards. The UK was not required to implement Basel III standards after the end of the Brexit transition period. The UK is introducing a revised prudential regime which is similar to the Basel III reforms, which will apply from 1 January 2022.

In the policy statement, the PRA makes minor changes to the policy statement it published in July 2021, such as removing the definition of 'Capital Requirement Regulation (CRR) consolidation entity'. The PRA will amend the online version of the PRA Rulebook later in 2021, and its final rules will come into force on 1 January 2022.

FCA: renewed portfolio letter to Lloyd's and London market insurers

On 12 October 2021, the FCA published a portfolio letter that was sent to Lloyd's and London market insurers, re-insurers, protection and indemnity clubs and run-off firms, following the FCA setting out key risks of harm the aforementioned entities posed to consumers and markets. The FCA's letter outlines the following key areas:

  • Operational resilience: firms should take appropriate steps to manage operational resilience and cyber risks and address any areas where they do not meet the FCA's March 2021 policy statement on operational resilience.
  • Access to business lines: firms should consider what information consumers need and how best to communicate changes such as insurance premium increases.
  • Value of products: firms should consider what level of value their products are providing to consumers and identifying those products that do not provide fair value. 
  • Uncertainty over insurance cover due to ambiguous contract terms: customers should be provided with simplified information around the product to understand the level of protection should they make a claim.
  • Claims outcomes: firms should treat claims in a fair and timely manner, and make sure that there are no barriers to claims for vulnerable claimants.

In addition to the above, firms are also required to demonstrate how they are increasing diversity in their workforce and developing an inclusive culture.

CMA: update on Open Banking

On 1 October 2021, the Competition and Markets Authority (CMA) published an update on Open Banking, following an independent investigation setting out a number of allegations relating to corporate governance, bullying, and management of conflicts relating to the Open Banking Implementation Entity. The investigation found that the CMA and nine founding banks shared responsibility for a lack of strong governance mechanisms and not upholding and improving governance as the project developed.

Following the investigation, the CMA will take the findings into account when developing future governance, and an independent non-executive CMA Director will lead a review into the CMA's approach for implementing and monitoring remedies in its market investigations in the future.

Securities, investments, and markets

FCA: Investment Firms Prudential Regime final rules published

On 22 October 2021, the FCA published its final rules for the Investment Firms Prudential Regime, converting the near-final rules from its first two policy statements. A third policy statement will be published by the end of the year. The IFPR constitutes a significant change for investment firms and comes into force on 1 January 2022.

BoE: first public supervisory stress test of UK CCPs

On 19 October 2021, the Bank of England (BoE) announced it has launched its first supervisory stress test of UK central counterparties (CCPs). The test includes both a credit component (to test the sufficiency of CCPs' resources to withstand market stress and clearing member defaults) and a liquidity component (to test the ability of CCPs to service all relevant cash requirements). The test also includes applying four market risk scenarios.

The BoE will publish the findings of the stress test exercises in the summer of 2022 and will use the findings to further develop and refine the BoE's regime for CCP supervisory stress testing. The discussion paper, published in June 2021, closes for comments in December 2021.

FCA: LIBOR transition Q&As

On 15 October 2021, the FCA published a webpage of Q&As about its new retained powers under the Benchmarks Regulation (BMR). The Q&A is aimed at managing the orderly wind down of LIBOR, specifically in relation to contract provisions, implementing the synthetic LIBOR solution, and using synthetic LIBOR after the end of 2021.

FCA: policy statement on LIBOR transition and UK MiFIR derivatives trading obligation

On 15 October 2021, the FCA published a policy statement on the LIBOR transition and derivatives trading obligation (DTO), setting out its finalised amendments to the UK regulatory technical standards (RTS) on the trading obligation for certain derivates (DTO RTS). The DTO requires certain counterparties to conclude certain transactions only on regulated trading venues.

The FCA amended the DTO RTS, replacing references to GBP LIBOR with overnight indexed swaps referencing SONIA. The amendments will enter into force on 20 December 2021. The FCA may also propose further amendments in the future as the liquidity profile of the derivatives market evolves.

Investigations and enforcement

FCA: Credit Suisse fined over £147 million for financial crime due diligence failing

On 20 October 2021, the FCA published a final notice issued to Credit Suisse, which was fined £147,190,200 for financial crime due diligence failings relating to arranging loans of over $1.3 billion for the Republic of Mozambique. The FCA noted that the fine is part of a global resolution agreement (of approximately $475,000,000) involving the US Department of Justice and Securities and Exchange Commission, and the Swiss Financial Market Supervisory Authority.

In its final notice, the FCA states that Credit Suisse failed to mitigate financial crime risks and had no financial crime strategy. Furthermore, their failings were particularly acute because they had been ongoing over an extended period of time and involved senior control functions and individuals.

FCA: questioned by Treasury Committee about length of NatWest case

On 20 October 2021, the House of Commons Treasury Committee published a letter sent by its Chair to the FCA Chief Executive questioning why the FCA took so long (five years) to conclude its case against NatWest. The letter included questions regarding the FCA's decision to appoint investigators and then prosecute NatWest, and to not prosecute NatWest individuals in the case. The FCA was requested to respond by 25 October 2021 and, responding on 22 October 2021, the FCA explained that they will be able to respond in full to the Treasury Committee's letter after sentencing is complete in early December.

NatWest pleads guilty to money laundering offences

On 7 October 2021, NatWest submitted guilty pleas at Westminster Magistrates' Court to criminal charges bought by the FCA under the 2007 Money Laundering Regulations (MLRs). The MLRs require firms to ensure they have controls and systems to prevent money laundering. This is the first instance the FCA has brought a criminal prosecution under the MLRs, and the case has been referred to Southwark Crown Court for sentencing.

Economic crime

AFME report and AML transition monitoring roadmap

On 20 October 2021, the Association for Financial Markets in Europe (AFME) published a paper on firms' monitoring of financial transactions relating to money laundering suspicions. The paper also sets out a roadmap to help firms design and implement their anti-money laundering transaction monitoring framework. The roadmap consists of several suggested steps, which include the following:

  • Sharing knowledge and data with other participants in the market.
  • Connecting and consolidating data sources in relation to systems integration.
  • Acquiring senior management support to establish monitoring framework that is robust and contains ongoing improvement.

FCA: analysis of firms' 2017-20 REP-CRIM data

On 7 October 2021, the FCA published a webpage that analysed annual financial crime data return (REP-CRIM) for the reporting periods between 2017 and 2020. The key observations that the FCA made from the submissions include:

  • The number of suspicious activity reports increased from around 390,000 in 2017-18 to around 480,000 in 2019-20.
  • Firms reported fewer politically exposed persons in 2019-20 (89,000) then in 2017-18 (111,000).
  • The number of customers exited during 2019-20 has more than doubled over 2017-20, mostly within the retail lending and retail banking sectors.

The FCA uses data such as the REP-CRIM data alongside tis risk-based financial crime supervision and aim to provide money laundering reporting officers with insights on developments and trends to inform arrangements at their firms.

UK Finance: report on definition of public officials for anti-bribery and corruption compliance

On 30 September 2021, UK Finance shared a report on risk-based, practical guidance relating to the meaning of 'public officials' in relation to anti-bribery and corruption compliance. The report builds on recent case law and international legal landscapes and sets out a broad approach and guidance for a consistent approach to the definition. UK Finance aims to support wider efforts to drive consistency in relation to identifying public officials in all sectors and industries, encouraging anti-bribery and corruption compliance providers to consolidate their due diligence data.

FSR trivia

According to the speech given by Sir Jon Cunliffe on crypto (see above), what was the approximate value of the cryptoassets market as at October 2021?

  • $800 billion
  • $16 billion
  • $2.3 trillion
  • $500 billion
     

The answer to last month's trivia: the approximate worth of paper £50 notes in circulation is £15 billion.

In this series

Financial services regulatory

Financial services update - February 2021

In-depth analysis

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - December 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - November 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - October 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - September 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - August 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - July 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - June 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - May 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - April 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - March 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update – February 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

Financial services regulatory

Financial services update - January 2020

IN-DEPTH ANALYSIS

by Charlotte Hill, Daniel Hirschfield

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