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James Bacchus在对外经济贸易大学的演讲(英文稿)

时间:2009-10-31 点击:

【编者按】2009年9月8日,美国WTO专家James Bacchus先生应邀来到对外经济贸易大学进行交流。Bacchus先生是世界贸易组织 (WTO) 的“上诉机构”的前任主席,曾任美国国会议员,以及美国总统行政办公室所属美国贸易代表的前特别助理。

在对外经济贸易大学法学院院长王军教授的主持下,Bacchus先生来在宁远楼2层模拟法庭,为对外经济贸易大学的师生,政府官员,以及相关律师等,带来了一场名为“中国在世界贸易组织中领导地位的崛起”的精彩讲座。

下面是Bacchus先生演讲当日的记录稿。

Pro. Wang Jun:

Distinguished guests, ladies and gentleman, dear friends, now, I would like to declare the open of today’s lecture. Please allow me first of all on behalf of Law School of UIBE to extend my warmest welcome and sincere gratitude to all guests and participants, particularly our American guests. Now I want to take this opportunity to introduce you-our respected guests. First, I’d like to introduce Mr. James Bacchus. Since he is the most important for us, I think it is better for me to ask Madame Zhang Yuejiao to introduce him to you later on. She will give some detailed information about Mr. Bacchus, so let me introduce other guests first. They are, Mrs. Bacchus, Mr. Philippe M. Bruno-shareholder of GT, Gonghong Liu-foreign law advisor of GT, Mrs. Zhang Yuejiao- the first judge sent by China on the WTO top court, Yang Guohua-the vice director general from MOFCOM Department of Treaty and Law, Han Liyu-professor from Law School of Renmin University, Cao Pei professor from Law School of Shantou University, Ding Ding, Sheng Jianming and Bian Yongmin-professor of this Law School. Now, let Mrs. Zhang Yuejiao to give introduction to Mr. Bacchus.

Madame Zhang Yuejiao:

 

It’s a great honor for me to introduce our tonight king of speaker, the most experienced and founding member of the WTO Appellate Body-James Bacchus. He has so many titles, very extensive, very expressive professional careers. I don’t think it can finish in two hours. So I try to be very short, to take the most important. You’ll say that he has many number-one titles. He was the founding member of the Appellate Body of the WTO. He was the youngest judge of the Appellate Body. He is still very young. Professor Bacchus is a very successful lawyer. He is the managing partner of one of the biggest law firms with 200 lawyers all over the world. He is also a very knowledgeable professor of law, although he is so busy. Tonight, you will share his extensive knowledge, his vision, and his strategic thoughts.

I’m very impressed by what he has done. He has a lot of publications, articles and books. If you read World Trade Law Net, you can see a special chapter for his articles and his research work. The most important is that, in the WTO, there are two categories of the most senior staff need to be approved by all 153 member governments. One is the DG, the current Lamy, and the other is the seven members of the Appellate Body-the highest adjudicate body of the international dispute of the WTO. Appellate Body members should be experts in law, international trade, in subject matters of the WTO. Professor Bacchus perfectly meets all these criteria. That’s why he is approved by consensus for two terms-the maximum eight years. And he is elected as the chairman of the Appellate Body twice. That is also unusual. The most important is the culture, the impartiality, independence and collegiality they have set up for the Appellate Body. Now, I’m following their steps. Although the precedence of the Appellate Body is not binding on future cases, as the current Appellate Body member, we always follow the best tradition of the Appellate Body. And before, he was also an American Congressman. So, that’s why he has a broad vision and strategic thinking. And he used to be senior advisor to the United States Trade Representative of the President.

Why is he so successful? That is because he works extremely hard. For the two days of his visit to China, he covers three cities. Tomorrow very early in morning, they are going to leave. So I hope that you will benefit tonight, with all his very deep thoughts and his vision, not only for the WTO rules and practices, but also for the Sino-US relations, particularly trade relations. I hope that you will benefit from his speech and also prepare questions. I hope tonight’s seminar will be a high level dialog. Thank you very much! Now warmly welcome Professor Bacchus!


Pro. James Bacchus:

 

Thank you very much Madame Zhang! As I trust all of you know that Madame Zhang is a current member of the Appellate Body. All of China and the entire world can be proud of the great job she is doing there. Speaking for myself, I appreciate the Peking duck she helped us find last night. It is very good. I also appreciate that I am called tonight young.

When I went to the Appellate Body for the first time, I was the youngest of the seven judges. International jurisprudence is a historical event of all men’s gain. I do mean men. There are three women on the Appellate Body now. It is a much better institution as a result. But, at that time we were all men. After eight years on the Appellate Body when I was serving as the only remaining original founding member with six entirely new people, on the day I left, I was still the youngest man.

It is getting harder and harder, I can guess, to find things to do in the world where I can be described as the youngest. I run around the world looking for something new to do where I can be called the youngest.

I have an eighteen year old daughter, who started collage last week. Her name is Jamie. Jamie told me that I look young from the neck down. She sees that is a complement. I refuse to dye my hair, because the whiter my hair gets, the higher I can raise my hourly rent. For those serving in law, I advise the similar approach. It is wonderful to be here to this fine university, I have the opportunity to meet with the Dean. He explained to me how this school teaches law, economics and language. We had an opportunity to visit all briefly at the Center for Chinese Study. So I hope Jamie could come here to study. I’d like to come here to study myself.

I appreciate this opportunity and I’m honored by this invitation. I appreciate the opportunity earlier today to meet some of my friends and colleague at MOFCOM, we have some good discussion about many ways in which the outstanding public servants of MOFCOM are advancing China’s interest in the WTO. You’re certainly to be proud of the historical relationship between the Ministry of Commerce and this university. And you are certainly proud of many graduates of this university who are serving for the People’s Republic of China so well internationally and in the WTO.

I thought back on my brief and far too short relationship with China through the years. In 1979, I was working in the Office of the United States Trade Representatives. During the time when we implemented the first bilateral trade agreement between China and the United States, it is a great honor to be there in the delegation. Chinese officials come to US and sat around the table for several days, trying to figure out just exactly how we’re going to make our bilateral relationship work.

A decade later I was a member the Congress of the United States representing my home state Florida. And I can remember having some spilled debate with my friend Nancy Pelosi from California who was now the speaker of the House. The issue was whether the United States should extend most favorite nation treatment to China. I was one of the four leaders in the House in an effort to make certain that we secure most favorite nation treatment to China. Nancy had reservations. It was my view then and is my view now that the best way for the two countries to make certain that they have a good long-standing peaceful and mutually prospers relationship is the trade with each other. And I believe that there is connection between trade and freedom. Some was proud that I was able to lead a successful effort to secure most favorite nation treatment for China long in advance before China became a member of the WTO.

And of course by the time China did become a member of the WTO, I was sitting as chairman of the Appellate Body. It was my great honor then to be the presiding member in the appeal in which China first appealed in the WTO disputes settlement. .This is the last appeal that I judge in Geneva. I’ve judged 60 different appeals during my time on the Appellate Body. This was a case in which the respondent is a small country called the United States of America, the subject is steel-something that never changed. The United States part set safeguard. And we judged that the United States had acted inconsistently with its obligations under the WTO Safeguard Agreement. And I’m eager to say that in China’s first appeal in the disputes settlement, I voted in favor of China.

I’m happy to be here now with my colleagues from Greenberg Traurig. Our law firm is a firm that some of you probably know the best choice law firm in the world. We have more offices in the United States than other American law firms. And now we are spreading our wings worldwide. We opened an office in London a few weeks ago. We opened an office in Shanghai last year, and I will be there tomorrow. We have very interest in China, and I’m going to practice here. So I’m hoping that this visit to China will not by any means be my last. There is much yet that I really wish to see.

My topic tonight, is China’s emerging role as a member of the WTO.

I think it is important first of all thinking about China’s emergence in the WTO to recall just how long it took China to become a member of the WTO. I believe it was thirteen years. China has the persistence, the capacity and the insight to know that it would be worthwhile for China to be a member of the WTO.

Why it is worthwhile? Members of the WTO have certain obligations to each other. These obligations are enshrined in the General Agreement on Tariff and Trade and other couple of agreements of the WTO tree. There are thousands of pages of rules in this treaty. But fundamentally, members of the WTO have two obligations.

The first of these obligations is the obligation of nondiscrimination. WTO members cannot discriminate in trade between and among other WTO members. This is the most favorite nation obligation. WTO members cannot also discriminate in favor of domestic over foreign supplier of like products. This is the national treatment obligation. These two different kinds of nondiscrimination are fundamental to the WTO.

WTO members also have made concessions to one other in terms of trade in goods and services by fundamentally lowering barriers to trade. They are not required to make concessions, but when they do, these concessions become binding in the trade with other WTO members. And these concessions are valuable for manufacturing goods. The average tariff is 4% for the WTO members and 6% for countries that are not members of the WTO.

When we consider these fundamentals that are available within the club of WTO members, it becomes clear why China thought it important and why MOFCOM led the way in negotiating accession for China to membership of the WTO. So long China was not a member of the WTO; the WTO members were free to discriminate against China in any way they wish. The reason we had a vote in the Congress on extending MFN to China was because that it was optional for us, since China was not a member of the WTO. As soon China became the member of the WTO, it no longer became an option. The United States is required to give MFN treatment to all members of the WTO.

And also remember those tariffs. So long China was not a member of the WTO, countries were free to charge Chinese goods any tax at the border they wish, 100%, 1000%, 10000%, and to ban the import all together with impunity. And now China is a member of the WTO, China is entitled to the same benefits and the same concessions that all WTO members are entitled.

And this makes tremendous difference to China since 2001. China has profited economically for many reasons in the past decade: hard work, innovation, enterprise and persistence. But one of the reasons that China has been prospers so much and so well is because China is a member of the WTO, and the consequence that China has not suffered the discrimination that would be otherwise suffered in trade, and it is able to benefit from the trade concessions to which all WTO members are entitled.

Whatever difficulties China may have along the way as a member of the WTO, I hope that the people of China will keep this benefit in mind. It is a challenge. I know because my own country faces that same challenge. The United States likewise benefits from its membership of the WTO. It also has benefited from these rules of nondiscrimination. It also has benefited from the concession that had been made along the way through round and round of trade negotiation globally on the tariffs at the border. But I’m afraid that many of my colleagues in the United States tend to forget these benefits of WTO membership and focus on the difficulties along the way. I think it important to keep the big picture of what WTO membership means, very much in mind. And I think China and the United States among the 153 member countries and other customs territories of the WTO probably benefit the most from WTO membership, because China and the United States are such large trading countries.
What about China’s role in the WTO?

Not surprisingly, China chose to participate rather quietly in the councils of the WTO in the first year or two of its membership. China chose to work hard, but not to raise the hand too often, not to make too many suggestions, not to try to be too aggressive in the councils of the WTO. And China didn’t act as the America tended to do.

In the course of those several years, China learned a lot about WTO rules, and a lot about the ways of the WTO. And now, recently, China has begun to raise the hand more often. This is as should be.

A majority of the countries that are members of the WTO are developing countries. The WTO is not the GATT. In old ages, the United States, Europe, Canada and Japan agreed something should be done, it generally got done. They would go and explain to other contracting parties of the GATT, work would be done. That is not the WTO. In the WTO, developing courtiers have their say and increasingly have their weight. And that is what should be. The WTO is a process in which countries representing five billion come together and work together to try to reach a consensus on the rules of trade and how we are going to move the trading system forward. And it is all together appropriate in the process that China raise its hand and raise its hand often, because China represents more than one billion of those five billion people. And that makes differences.

China is increasingly a visible member of the WTO. China is increasingly a productive member of the WTO. China is increasingly a leader in the WTO. And I believe we’re only beginning to see the potential of China’s leadership.

What should be the nature of that leadership? I suggest that what is the most in the national interest of China in the WTO is precisely the same thing that is the most in the national interest of my own country: that is to success out multilateral trading system itself.

China is at the verge of surpassing Japan that is the second largest economy in the world. China is becoming a more and more successful trader everyday all over the world.

No country has a greater interest in the success of the multilateral trading system than China, because it is that system that protects all trading countries against discrimination in the world trade, and it is that system that provides the insurance that concessions that have been made by all countries in world trade will be respected.

The best way by far to secure the success of the multilateral trading system is by respecting the rules of trade, and by upholding the rules of the trade. This means that it is critical to the success of the trading system. And we also have a success system-the WTO disputes settlement. We need to uphold the international rules of law in trade; the way to do that is by respecting the rules of law in the WTO disputes settlement. And I suggest that China going forward will want to help lead other WTO members toward successful negotiations that will improve the rules of law in trade, and toward a disputes settlement system that will continue to work forward the rules of world trade fairly and justly broad.

In what I see as China’s policy, as a member of the WTO as it emerges, I believe that China proceeds its national interest just as I describe.
Last week in Deli, the members of the WTO agreed to restart the long stalled multilateral trade negotiations that we call Doha Development Round. India had a lot of press conferences. The America had some press conferences as well. I don’t know whether China held any press conferences. China played a critical role behind the scene. It helped restart those talks. They will begin again in Geneva on September 14, and I know China will play a positive role.

China also recently announced that it is going to do something that is difficult for any sovereignty country to do. China is going to comply with an adverse ruling in the WTO dispute settlement. China is going to comply with the rulings in the Auto Parts case. This is the right thing to do. This is also the smart thing to do. Every country, because it is sovereign, has a choice, whenever it is judged in the dispute settlement, not to act consistently with the obligations under the WTO agreement. It can choose to comply with that ruling, or can choose not to comply, and under the rules it would potentially suffer the consequences of the last resort to economic sanctions.

As some of you believe, international rule or law, I think, impose all the countries always all the treaty obligations. But I’m also a reform politician and I know sometimes it is difficulty politically to make that happen domestically. My own country has difficulties from time to time in remembering the interests it has in complying with adverse rulings. I think of the recent series of zeroing cases, for example. What I say in the United States to audience is such as this one. The United States is the largest trading nation in the world, has the largest interest in complying rulings in the WTO dispute settlement when they go against the United States. What is the United States to expect the other countries to do, if the United States does not comply with adverse rulings? Should we expect them to comply when their times come to be a defendant in a case? I offer the same advice to China.

As we discussed early, China benefits enormously from the system in which other countries are against discrimination and in which there are concessions to which all members are entitled. What is China to expect if China does not comply with adverse rulings in the WTO dispute settlement? When China assert its rights in dispute settlement as China increasingly will do, and prevails in cases in dispute settlement as China increasingly will do, China want to make certain that other countries will comply when the rulings go against them. Clearly, the government of China has sought to the rule, and this is part of the reason why it decided to comply with the Auto Parts ruling, and why it established the policy of compliance. Compliance could sometimes be difficult here as it is elsewhere. It is never easy to do as some judges in Geneva suggest ought to do. But it is a good policy. And it is a far-sighted policy that is consistent with the national interests of China just as it is consistent with the national interest of the United States, and it is significant for every member of the WTO.

One of the critical factors going forward and the success of the WTO and the WTO dispute settlement would be the bilateral trade relationship between the United States and China. And it is that issue I’d like to turn to for a few minutes.

China and the United States are both leaders in the trading system. The only way the trading system could move forward is that China and the United States trade together successfully and are able to improve what is already a very mutually beneficiary trading relationship.

We have a new administration in the United States of America. I’m happened to be a democratic, I voted for President Obama. I voted and he succeeded. I support his proposal on health care reform. I support a lot of the other things he is trying to do domestically. I’m waiting and hoping for my President to do the right thing on trade.

I’m called in the United States a free trade democrat. If you know this English word, that is thought to be something of a contradiction in terms, because there are supposedly not too many free trade democrat any longer. But my views on trade are very much the same as those of Franklin Roosevelt, Henry Truman Jonny F. Kennedy, Lyndon Baines Johnson, Jimmy Katter, Bill Clinton and our vice president Al Gore. So I think there is a democratic tradition of support in trade. I would like to see it continue. For within the Democratic Party, there are differences on trade, and there are differences during this time of great economic downturn worldwide.

As we all know from studying economics as well as law you are in this fine university, during the Great Depression of 1930s, the world made a mistake, we engaged in widespread protectionism, we raised tariffs barriers, we caused trade to shrink and shrivel, we retreated within our borders, we enacted nationalistic policies, we turned inward, we turned away from the world we turned the way from prosperity. We are giving speeches nowadays to say we remember this mistake, but it is not altogether clear that we all do, and certainly not altogether clear that all the United States will do, nor is clear that all and my party do in the United States. That is why we are currently all waiting and hoping for President Obama to do the right thing for trade.

The President has had several opportunities in recent months to take positions on trade. On several occasions, he has helped trade, but has not in my view helped it quite enough.

When the congress decided that it wants to pass a stimulus bill that includes a “Buy American” Procurement Provision, President Obama suggested that they include a paragraph of insurance that the United States would comply with its WTO obligations. Saying it doesn’t make so, but this was better than what was in the original bill. It is still in my view a mistakes to include those “Buy American” Procurement Provisions in the stimulus bill. In my view, it is a mistake to have “Buy National” procurement provisions, because they deny us the benefits that come from competition. That is not the way to innovate, to create, to succeed and to make economic growth in the long term.

On the climate change legislation that is moving through the Congress, the president has suggested that the provisions that are in the bill enacted by the House that could potentially impose trade restrictions due to emission issues should be removed, and the body is not threatened to veto the bill if they are not.

In both of those cases, the President helped, but he might be not quite enough. He now has a new opportunity. He must within the next few days make a decision on whether to apply a special safeguard measure against China. The issue is tires, but the “issue” is much more than tires. It is symbolic issue for the United States, for China and for the world.

On economics, I don’t think there is any basis for the United States to apply safeguard measure. Imports of tires from China had actually been declining in recent months. The US tire industry has refused to join the petition filed by the steel workers’ union, because they say that even if high tariffs were applied, it won’t create any new jobs in the United States.

Legally, I think the case is dubious at best. The only reason the United States has the opportunity to apply a selected safeguard measure against China is because as a condition of its accession to the WTO China agreed that selected safeguard measure could be applied for a temporary period until 2012.

The Bush administration which did not in my view always exercise the best judgment on quite a number of international issues, nevertheless in my view exercised the best judgment on this issue by rejecting every petition that were submitted to it since China became a member of the WTO. And I believe this petition should be rejected as well. If it is not, I would suggest that China take a close look at its Protocol of Accession, and determine whether China might have recourse against the United States in the WTO dispute settlement
Just because China agreed in its Protocol of Accession, in limited cases the United States could take selected safeguard actions. This does not mean that China agreed that the usual rules that apply in safeguard actions generally under Safeguard Agreement should not apply at all.

Based on what I see of what the United States International Trade Commission had done, there are several ways in which China could challenge this action if indeed the President does the wrong thing. In my view, the wrong thing would be to apply any safeguard measure at all. I think this would be wrong economically and legally, but also it would be wrong politically and strategically for President Obama.

First of all, why and what the United States at the strategic juncture want to send such a negative signal to our trading partner China?

Second, at the time when the whole world is waiting for reassurance that the new administration of the United States will truly support trade worldwide, why and what would our new President want to send such a signal not only to China, but to the rest of the members of the WTO?
My hope is that the President would do the right thing, and not apply any safeguard measure at all. My prediction, I’m afraid, is that he’s looked difference just a bit, and applies some limited measure. Or worse, the administration may pressure China to take some supposedly voluntary measure on its own. I would suggest China think long and hard before doing that, because China indeed has free course under WTO rules.

It would be a sad thing indeed, if this particular issue were to complicate our trade relation at this time, because there is so much to begin on both sides to perfect by continuing to improve and develop our trading relationship. I cannot begin to count the number of American company brand names that I have seen representatives on the street of Beijing. There is abundance of opportunity here for American companies. And of course in turn at my home in the United States, we benefit everyday from the products we imported from China of all kinds: toys, textiles, increasingly high-tech items, increasingly services as well.

You know those are adverse to trade too often tend to talk about trade solely in terms of exports. But as you know from the studying here in this wonderful school, any economist will tell you that the principle reason of trade is import. The principle reason of trade is to get something from somewhere else less expensive than you can get from next door or than you can get by making it yourself. That is important. The word I say about is “pencil wants”, trying to explain the division of labor that is trade, by explaining why it is that we would want to pay someone else to make a pencil for us rather than making our own pencil.

Because of politics and because of the factors we have chosen to draw lines on the map of worlds that we call political borders, we think it makes a difference whether the person lives next door to us in Florida makes that pencil or the person live in China makes that pencil. But the truth of the matter is, in economics, this is very old as Adam Smith talked long ago, the only division of labor extends the marketplace. And increasingly we extend the market to worldwide. We need to understand that the highest levels of the governments in both Washington and Beijing need to work together and talk together so that we can trade together in a mutually successful way.

And here would be the final point I would want to make tonight. I work for nearly one decade for more than 150 countries. I am an internationist by definition. If anyone is a mutilateralist, I am. I have the word “mutilateralism” written on my forehead back home in Washington, believe me. But I reach the point where I don’t see how it is, just because someone happens to be a citizen of my country, there are any more titles to the good things in the world and anyone carries it in the world.

I think the world is one place and I think the community is one. And I think our purpose in history is to make the world and share the community want. I believe the things we have in common together are far more significant than things divides us. We share the human spirit, we share the human desirable freedom, and we share the belief that every one of us matters. And I don’t think it matters whether we happen to come from the United States, come from China or come from Cuba. We all have equal right to our place and our share in the life of this world.

It is also evident to me that someone has a window of world in Geneva, and that the challenges we face in the world are not going to be solved by any nation, they are going to be solved by all of us together or they won’t be solved at all. There are increasingly inherently global issues that can only be addressed globally. Climate change is certainly one; I would say that is the most compelling issue of our time. But there are others. I think of the worries we all have increasingly about potential ozone damages that harm the health of people of this planet. I think of the tsunami that destroys so many lives and so many countries. I think of the threats of terrorism that expose your country and mine by those who don’t want to live together peacefully.

These are global issues that require global answers. And the only way we can find the answers is to work together. And I don’t see how the world can work together unless the United States and China work together.

I know the European Trade Commissioner is going to be here tomorrow, no one has any higher regards for the success of European Community that I have. What a great historical history it is!


Of course, the ideas could be met worldwide and come from any moment and any place in the world. But I just don’t see how the world can come together on the issues, unless China and the United States find a way to continue to work together.

There are people in my country who miss the good old days of the Cold War and would like to find someone that we can blame our problems on. And I’m sure there are people in your country who feel the same way and like to point a finger on someone else. It is always popular everywhere in the world to blame someone who is different, someone who is from somewhere else, someone who is foreign or as the academic say, the “other”.

My message is that there is no “other”, and it is all just “us”. I think the reason why the world needs the United States and China to work together is that between us there is a lot of “us”. There are a lot of people, and there is a lot of economic might, and there is a lot of collective say we can have in the world. And the United States and China can come together and agree I think we can green the world long.

I was encouraged to see reports of potential bilateral agreement between the two countries on the issue of climate change issue. That is a good start. But what we need to do is working together to lead the world to a treaty in Copenhagen in December. We will not do worry the broader measure in the WTO, because the climate change will be solved on the global basis. And that should be just the start.

As for me, I’m very happy to be a former member of the Appellate Body. There are also many issues that are intractable. They are between lines of a couple of agreements that I did not have to resolve before I left Geneva. Instead, Madame Zhang is left there to resolve them in my absence along with her colleagues.

What I hope to do is in my small way continuing to be an advocate for trade, and an advocate for freedom, and an advocate for multilateralism, and an advocate for internationalism, and an advocate for bringing people together across the seas and across all the divides and threats to work together for a better world!

Pro. Wang Jun:

Because of the time limitation, at last I sincerely ask Mrs. Zhang Yuejiao to say some more words.

Madame Zhang Yuejiao:

As I mentioned at the beginning, you will see how knowledgeable that Professor Bacchus is. He was a very successful distinguished congressman of the US. At that time, he was a very strong supporter for proving the most favorite status to China. And he is still a defender of the rule based multilateral system.

I appreciate his contribution to the world multilateral trading system. I think particularly as student from this school, the most important business school in China, you task is also very important to learn as much as possible the rules, because of the rule based international trading system.
And as a decision maker, you should also know the rules. We make a joke that the covered agreement of the WTO is the Bible.

You can see Professor Bacchus is so familiar with Article 11 and Article 20, which put you in a better position to defend your case. To all international dispute settlement, evidence is the most important. Collect information, prepare your case, and better learn all those cases, although they are not binding, but the legal reason behind is critical.

I think what Professor said is a good example and good lesson for all of us. I hope that, among you, there will be more outstanding WTO experts. Only by this way, China can become an emerging country to contribute to the WTO, to contribute to multilateral trading system!


Finally, I on behalf of all participants thank sincerely our very experienced and respected founding member of the WTO Appellate Body Professor Bacchus! 

 
 
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