This subject is rarely discussed.1 Perhaps because it is not seen as very original. Or because it is thought arbitration is not used in the insurance sector. Both these assumptions are wrong. On the contrary, arbitration in the insurance field has its own characteristics and raises specific problems. Arbitration has long been used in reinsurance, but it is also used in direct insurance, notably in shipping.

There are even specialist arbitration bodies for the insurance and reinsurance sectors.2 Mention may be made of the professional arbitration agreements signed between insurance companies and between the professional bodies which represent them. These agreements provide for conciliation and arbitration procedures in the event of any disputes between signatory companies or between companies belonging to the signatory professional bodies.3

Taking a global view of the situation, we need to differentiate between two possible situations, each of which presents different problems: first, the case of an insurance policy which contains an arbitration clause; and second, the case where the arbitration clause is not in the insurance policy, but rather in a commercial contract between the insured and another party.

I. The insurance policy contains an arbitration clause

a) First, we can exclude from this study those clauses contained in certain insurance policies that are at times referred to as arbitration clauses but are actually clauses requiring the parties to seek an expert opinion. Their purpose is to provide for assessment of the harm, loss, damage or deterioration caused. The expert's job is not to settle a dispute between the insured and the insurer relating to the insurance cover. Hence they are expert opinion clauses, not arbitration clauses.4

Accordingly, a clause in a fire insurance policy which requires the parties to arrange for a mutually agreed expert opinion does not constitute an arbitration clause binding the parties.5 The expert appointed by the insurer is not its representative, and does not commit the insurer by any opinion he may express.6

b) The restrictions upon the arbitrability of a dispute, which result from a combined reading of Articles 2059 and 2061 of the French Civil Code, apply to [Page34:] the insurance sector when the insured is not a trader or when the insurer, as a mutual insurance company, is not a trader.7 Pursuant to Article 2059 of the Civil Code, any such non-traders can agree upon arbitration after the dispute between them has arisen, even if the arbitration clause in the policy is void.8 However, Article 2061 of the Civil Code allows an application to be made for avoidance of an arbitration clause, even if the clause is in a policy which is a civil contract for one of the parties and a commercial contract for the other. As such avoidance is absolute and cannot be covered by any express or implicit waiver by the non-trading party,9 and as the French courts have ruled that an arbitration clause contained in the by-laws of a non-trading company should be deemed void,10 there can be no doubt that a clause in a policy issued by a mutual insurance company would be void, even when the policy is issued to a trader.

Even if the mutual company's business is maritime insurance which, by its very nature, is a commercial activity, according to case-law such company is nevertheless still deemed to be a non-trading company.11 If a commercial court cannot allow an action brought against a mutual company,12 the same is true for an arbitral tribunal on the basis of an arbitration clause.

c) When an arbitration clause is included in the policy, and irrespective of whether it provides for ad hoc arbitration or refers to the rules of arbitration of an arbitration institution, there is nothing special about such arbitration as compared with that in any other sector of the economy.

Paradoxically, the problem is more interesting - and more complex - when the arbitration clause is not included in the insurance policy, but in a commercial contract binding the insured to another party, such as a customer, supplier, bank or service provider.

II. The arbitration clause does not appear in the insurance policy, but in a commercial contract between the insured and another party

This situation may initially seem paradoxical: how can the insurance company, which is not a party to the commercial contract, be concerned by the arbitration proceedings? Can it take part in the proceedings, and if so, how? Can it be joined as a party? Will the arbitral award concerning the parties to the contract be enforceable against the insurance company? Will it have res judicata force with regard to the insurance company? Arbitration in this situation raises all the above questions. They fall within the scope of the more general issue of arbitration and third parties.13

The problem revolves around the fact that the insurance company is a third party with regard to the commercial contract containing the arbitration agreement. Third party should be understood to mean any person who was not a party to, and not represented in, the agreement. An initial analysis suggests the insurer could claim not to be involved in the arbitration proceedings on the basis of, first, privity of contract (Art. 1165 Civ. Code), and second, the rule that the decision of an arbitral tribunal is res judicata only for the parties to the arbitration. The issue is further complicated by the hybrid character of [Page35:] arbitration, which is both contractual and judicial. It is in the interest of the insured, who is bound by the arbitration agreement, and of the insurer, in its capacity as guarantor, to know what impact arbitration will have on the insurance contract, and vice versa.

We will try and answer these questions within the limited scope of this article by looking in turn at three different issues:

- how will an arbitration clause in a commercial contract signed by the insured affect the insurer?

- does the clause allowing the insurer to take charge of court proceedings contained in a civil liability insurance policy entitle the insurer to take an active part in arbitration proceedings?

- how will the arbitral award concerning the insured and its contracting party affect the insurer?

These three questions need to be examined separately, as the answers will depend on separate considerations:

- the effects of the arbitration clause on the insurer concerns privity of contract (Art. 1165 Civ. Code);

- the effect of the clause allowing the insurer to take charge of court proceedings concerns agency;

- the effects of the arbitral award on the insurer concerns either res judicata in relation to the award, or its enforceability against third parties.

A) The effect of the arbitration clause in the commercial agreement on the insurer

For clarity's sake, we should differentiate between two different situations, as with arbitration and bonds:14

- the situation in which the arbitration clause is raised against the insurer: the matter at issue will therefore be the object of the insurance contract. Does it require the insurer to accept those obligations laid down in the commercial contract, as if the insurer was a party to the commercial contract?

- the situation in which the insurer claims the benefit of the arbitration clause. Can Article 2036 of the Civil Code, which authorizes a surety to file a procedural objection against the obligee based on the arbitration clause, be transposed to an insurance situation?

1) The arbitration clause is raised against the insurer

The arbitration clause will usually be invoked by the injured third party, namely the party with whom the insured has contracted and obligee in their commercial contract. The situation can be summarized as follows:

- the insurer is a third party as regards the commercial contract;

- the arbitration clause does not embrace the insurer.

(i) The insurer is a third party as regards the commercial contract

This is quite clear, as the insurer did not sign the commercial contract. In the field of bonds 'the surety's obligation to settle the obligor's debt results from its [Page36:] undertaking as given in the bond, which is separate from the main contract',15 and this rule also applies to insurers: the insurer's commitment results from the clauses of the policy, which is separate from the main contract. Like the surety, the insurer is only bound as a guarantor. It is neither the obligor nor the joint obligor as regards the insured's debt resulting from the commercial contract.

Thus, if 'the status of the bond as accessory is not sufficient to extend the effects of the arbitration clause contained in the secured contract to the surety',16 then this is even more true as regards the insurer, whose commitment is not accessory, it is quite independent. The insurer is therefore a third party as regards the commercial contract containing the arbitration clause.

(ii) The arbitration clause cannot be extended to the insurer

The reason for this is that, like a surety, the insurer does not owe the same thing as the insured in its capacity as party to the commercial contract. Like the surety, 'the object of the obligation (of the insurer) is to provide fair compensation for the damage caused by the obligor's failure to perform its obligation'.17 To use an expression coined in an article on bonds,18 the insurer does not ratify the obligations generated by the commercial contract, its obligation is not the obligation of the insured as obligor in the commercial contract, it is different. The insurer, like the surety, is not therefore bound by the same obligation as the insured in the commercial contract. Thus, the obligee in the commercial contract containing the arbitration clause cannot raise the clause against the insurer.

'Arbitration law does not permit the effect of an arbitration agreement to be extended to any third party, and prohibits any joinder or third party notice.'19 It is therefore impossible to involve an insurer in arbitration proceedings against its will by a joinder or third party notice, or by bringing the direct action against it that the law allows an injured third party to bring against an insured's civil liability insurer.20 Nothing, however, would prevent an insurer from voluntarily applying to join the arbitration proceedings, with the parties' consent.

2) The arbitration clause is raised by the insurer

Here, we need to differentiate between the situation where the insurer raises the arbitration clause against the obligee in the commercial contract, and the situation where it raises the clause against the party liable for the loss.

(i) The arbitration clause is raised by the insurer against the obligee in the commercial contract

The question at issue is whether the insurer can make use of the right granted to a surety under Article 2036 of the Civil Code. Pursuant to this provision, the surety can put forward in its defence against the obligee all those objections which the obligor is entitled to make and which are inherent to the obligation. This is a consequence of the accessory nature of the surety bond. Scholarly opinion considers that 'the purpose of Article 2036 of the Civil Code is to ensure that the surety's commitments do not exceed those of the obligor. Accordingly, Article 2036 appears under the heading extinguishment of security. In view of this, it seems apparent that objections inherent to the obligation do not include procedural objections that do not have the effect of reducing or extinguishing the surety's [Page37:] obligation. This is indeed true of an arbitration clause, whose effect on the existence of the secured substantive right is neutral.'21 We could be tempted to transpose this argument to the insurer: as the guarantor of the financial consequences of the insured's liability, it can of course raise objections so as to limit or exclude the obligation from its insured's liability. It cannot, however, invoke for its own benefit an arbitration clause included in the commercial contract to which it is a third party.

(ii) The arbitration clause is raised by the insurer against the person liable for the loss

After paying a claim, can or should the insurer initiate proceedings before the arbitral tribunal against the person liable for the loss, to recover the amount paid out?

If the party liable for the loss is a third party to the commercial contract containing the arbitration clause, the answer is a definite no, in view of the rule of privity of contract. Even if the insurer is legally subrogated in the rights of the insured,22 and accordingly benefits from the arbitration clause included in the commercial contract, this does not include any right to proceed against a third party to the contract. If it wishes to proceed against such third party, it will need to turn to the national courts.

If, however, the insured's contracting party is liable for the loss and if the insurer has compensated the insured pursuant to a damage insurance policy, it may proceed against the other contracting party, as subrogee in the insured's rights, only before the arbitral tribunal designated in the commercial contract, to the exclusion of the national courts, unless the interested parties mutually agree to waive the arbitration clause.23

Case-law provides that the subrogee shall be bound by the arbitration clause that bound the subrogor and contracting party. footnote_24> The insured's claim against its contracting party is transferred to the subrogated insurer, with the related remedies.

What would happen, however, if the insurer was a mutual insurance company, which does not engage in a commercial activity? Does the civil character of the company's activities mean the arbitration clause could not be implemented? With regard to bonds, scholarly opinion considers that 'the surety cannot invoke the civil character of the surety bond to contend the arbitration clause is of no effect. Subrogation results in the transfer of the commercial nature of the claim to the surety.'25 In view of the aforementioned rulings prohibiting a mutual company from being brought before a commercial court, there is no guarantee that proceedings could be brought by or against a mutual company before an arbitral tribunal, unless that company has made an agreement to arbitrate, after a dispute has arisen.

B) Taking charge of proceedings

The clause which grants the insurer the right to take charge of legal proceedings qualifies as a promise of an agency granted by the insured, as principal, to the insurer, as agent, the effect of which will be to give the insurer full powers to take [Page38:] charge of the insured's defence in any action for liability brought against the insured by a third party. 'The insurer conducts the proceedings, in the insured's name and as its agent.'26 The action will, however, be binding only on the insured and the third party: as an agent, the insurer is not a party thereto. Implementation of the clause granting the insurer the right to take charge of legal proceedings does not result in the joinder of the insurer as a party to the proceedings. If the insurer considers it will have to cover the loss, it will take charge of the proceedings. However, this is optional, not mandatory. If the insurer considers - wrongly or rightly - that it will not need to cover the loss, it will not take charge of the proceedings and will leave the insured to defend itself, at its own risk. The decision to take charge of the proceedings is therefore linked to the question of insurance cover. In view of this definition, the clause can be seen to differ from legal expense insurance (assurance défense recourse ) and legal protection insurance (assurance protection juridique ), which are separate forms of cover, the first of which may be provided as additional cover in an insurance contract, while the second is issued under a separate policy.27

'When an insurer takes charge of the proceedings this is because it does not want the insured to take those decisions usually taken by the defendant in an action for liability (choice of counsel, available remedies, etc.).'28 The insurance policy may even provide that if the insured interferes in the proceedings it may forfeit its right to insurance cover.29 Yet the law says that 'the insured shall not forfeit insurance cover or suffer any other sanction because of its interference in the organization of proceedings if it was in its interest to do so'.30 The law has not clarified this, however. It is generally thought that this provision is designed to cover any conflict of interests between the insurer and the insured, or any failure to act on the part of the insurer.31 The situation becomes more complicated when, without actually taking charge of proceedings, the insurer collaborates with the insured but leaves the insured a certain degree of freedom of choice in the organization of its defence.32

These rules apply to proceedings conducted in the national courts. Can they be transposed to proceedings before an arbitral tribunal? Unless the policy provides otherwise, it seems that it could be assumed that this clause also applies to proceedings before arbitral tribunals, as such proceedings bear all the characteristics of legal proceedings within the meaning of the Code of Civil Procedure. This situation does, however, raise a number of questions.

a) First, should the insured inform its insurer that it is bound to any of its contracting parties by an arbitration clause? If the policy provides for this, then the insured must obviously comply with this obligation. Sanctions for non-compliance may be laid down in the policy. If there is no contractual obligation to inform, could it be considered to form part of the insured's statutory obligation to report any risks? This assumes that the arbitration proceedings constitute a specific risk for the insured, which is not necessarily the case, particularly if they are conducted under the auspices of an arbitration body, in a legal framework, offering every guarantee of impartiality! This might not be so in ad hoc arbitration, or where the arbitrators rule in equity or as amiables compositeurs . If this is the case, the insured may be well advised to inform the insurer that it is bound by an arbitration clause of this kind. It is by no means certain, however, that an arbitration clause could be equated with a clause in a policy excluding from insurance cover the consequences of any contractual commitments entered into by the insured that create an exception to ordinary law, because arbitration as such does not fall outside of the scope of ordinary law, being governed by the Code of Civil Procedure. [Page39:]

b) As part of the insurer's right to take charge of proceedings, the insured has an obligation to inform the insurer that arbitration proceedings have been initiated against it, on penalty of forfeiting its right to insurance cover.

c) Pursuant to the insurer's right to take charge of proceedings, in our opinion the insured should let the insurer, as its agent, decide on the manner of arbitration - in law or in equity - when the arbitration clause does not specify this. It should let the insurer appoint an arbitrator in its place and stead, otherwise it would be violating the contract of agency. It should also leave the insurer to decide whether or not to appeal against the award if an appeal is possible, or to apply for it to be set aside when this is possible.

The insurer's powers are therefore extensive, but are subject to certain limitations. First, each party must act loyally vis-à-vis the other (Art. 113 Civ. Code). The insured's obligation not to interfere is a consequence of this. Secondly, the insurer's powers are subject to the insured's right to 'interfere' when it is in its interest to do so. The conflicts this could cause in the context of arbitration proceedings are all too easy to imagine! Third, the insurer, in its capacity as an agent, must report to its principal, the insured, on the performance of its duties. Lastly, if the insurer incorrectly conducts the proceedings before the arbitral tribunal, it may have to answer to its principal for non-performance or incorrect performance of the agency. This could concern instructions given to counsel, agreeing to arbitration in equity, failure to make use of an available remedy, or the untoward use of such remedy. Naturally, save patent misconduct, the insurer cannot be held responsible for the outcome of the arbitration proceedings. The most important problem, however, remains whether the arbitration award is enforceable against the insurer.

C) The enforceability of the arbitration award against the insurer

As established above, the insurer will remain a third party to the arbitration proceedings, even if it has taken charge of the proceedings before the arbitral tribunal. Does this mean it can refuse to admit the arbitral award is enforceable against it, given that the force of an award is, in theory, limited to the parties to the proceedings and does not extend to third parties?

a) The problem is actually even more complex than the - already sufficiently complicated - issue of the enforceability of a judicial decision, because the 'judge' delivering the arbitral award was appointed by the parties. The insurer, however, is not a party to the proceedings.

As applied to the insurer, the unenforceability of arbitral awards on third parties could well lead to abuse. After having appointed the arbitrator in the name and on behalf of the insured, and after having conducted the insured's defence before the arbitral tribunal, the insurer could then refuse to acknowledge the enforceability of the award upon it and refuse to draw the necessary consequences; in other words, it could refuse to pay, within the limits of the insurance policy, any amounts the tribunal may have ordered the insured to pay. This would lead to a total deadlock situation as the insured cannot draw the insurer into the arbitral proceedings by way of joinder or third party notice.

Could the rules developed for surety bonds be of any help here? An award finding against the principal obligor is enforceable against the surety, even though the latter [Page40:] is not party to the arbitration proceedings.33 This case law is based on the ground that the surety is not a third party to arbitration. It is hard to accept such a bald statement, given that the surety is not bound by the arbitration agreement. 'The reasoning confuses enforceability and res judicata . [...] Res judicata guarantees the inalterability of the judgement between the parties, whereas enforceability extends the spread of the decision in a legal setting, imposing the legal situation resulting from the judgement on third parties. [...] An award ordering an obligor to pay constitutes a fact, which the surety must respect.'34

There is a trend amongst some scholars to think 'that the same situation probably applies to a civil liability insurer, who is a third party to the arbitration agreement entered into by its insured and who, even if it conducts the proceedings [...] only does so in an underlying capacity, in such a way that the agreement and the award apply to it simply because they are enforceable against it and not because they are binding upon it [...] The ordinary law courts are known, however, not to allow an insurer to object to a judgement in the same way as other harmed third parties [...] which brings the insurer's situation close to that of a party. The answer actually derives from the fact that the insurer could put forward any arguments it considered relevant through its insured. For many scholars, third party objection exists in recognition of the right to be heard and given a full opportunity to present one's case, and this is the reason why a third party is allowed to put forward its arguments. If the insurer has already been able to do so, it is right and proper that this avenue is not open to it.'35

The Court of Cassation has ruled that a court order finding against the insured in respect of the injured third party constitutes occurrence of the event insured against, both as regards the principle and the scope thereof.36 This means that 'despite its position as a third party, the insurer loses the right to object to the decision in question, unless collusion with an intent to defraud between the insured and the victim can be established'.37 There is no valid reason why this solution cannot be transposed to the case of arbitral awards, which would thus be enforceable against insurers.

b) However, as with surety bonds, the award does not obligate the insurer as a party to the arbitration proceedings, since it is not a party thereto. Again as with surety bonds, we can presume that the award is not itself a writ of execution as regards the insurer. Thus an enforcement order in respect of the award cannot be used by the obligee (injured party) against the insurer, who must rather be sued for performance in the national courts, on the basis of the obligation resulting from the insurance contract. The Paris Court of Appeal has ruled thus.38 After stating that the award finding against the obligor was enforceable against the surety, the Court added that 'the commercial court has jurisdiction to confirm the surety's obligations, if need be, once authority to enforce the arbitral award is granted'. So, if there is no arbitration clause in the insurance contract, only a national court, and not the arbitral tribunal, has authority to order the insurer to pay. In such court, the insurer may not, however, raise any further arguments regarding the insured's obligation, as the merits of the case have already been finally judged by the arbitrators. It may, on the other hand, dispute the principle or scope of the insurance cover, which is a separate issue, unless it is presumed to have waived such right by taking charge of the arbitration proceedings in full knowledge of the facts.

c) Lastly, the enforceability of the arbitral award against the insurer is not conditional upon its being given an enforcement order. Pursuant to Article 1476 of the New Code of Civil Procedure, 'as soon as it is made the arbitral award shall have [Page41:]res judicata force in respect of the dispute it has settled'. 'The consequence of the res judicata force of the award between the parties is to make the decision enforceable against third parties.'39 In the aforementioned decision of 21 May 1964 the Paris Court of Appeal issued a contrary ruling, but at that time res judicata went hand in hand with an enforcement order, which is no longer the case.

Conclusion

Several facts have become apparent as a result of this brief analysis.

1. Arbitration does indeed exist in the insurance sector. Systematically used in the reinsurance field, it is also used:

- between insurance companies, in the form of professional arbitration;

- between insurance companies and those they insure, for large risks, in the form of either ad hoc or institutional arbitration.

2. There is nothing particularly different about arbitration in the insurance sector when a dispute between the insurer and the insured is referred to arbitration pursuant to an arbitration clause contained in the insurance policy.

3. Specific problems do arise, however, when the insurer is a third party to the arbitration agreement between the insured and one of its contracting parties. In this type of situation, three assertions may be made:

- the arbitration clause is not binding on the insurer: the insurer may not invoke it, and it may not be raised against the insurer;

- the arbitral award is enforceable against the insurer;

- the insurer is entitled to conduct the proceedings on behalf of the insured.

1
See especially 'Procédures arbitrales et autres moyens extrajudiciaires des règlements des différends en matière d'exécution des contrats d'assurance' (Colloquium, European Insurance Committee, Cannes, 1974) [1975] RGAT 121; H. Claassens, 'L'arbitrage en matière d'assurance' [1978] Rev. arb. 215.

2
E.g. ARIAS in the United Kingdom and CEFAREA in France.

3
See collection of professional agreements in Lamy Assurances; appendix to Code des assurances (Argus); Dictionnaire permanent des assurances (Ed. Législatives).

4
See, e.g., Paris 26 May 1987, [1987] Rev. arb. 509 (Annot. Jarosson). Cass. civ. 1re, 4 October 1969: A clause in a life insurance policy whereby the parties undertook not to initiate legal action to settle any dispute arising between insurer and recipient of death benefit over cause of death, without first referring to a panel of doctors, is a clause providing for a non-binding medical expert opinion.

5
Trib. com. Marseille, 17 October 1928, Rep. Commailles 1929.7727; Paris, 4 May 1981, [1982] RGAT 381 (Annot. Bigot). Contra Versailles, 17 January 1979, [1980] RGAT 361 (Annot. Bigot).

6
Paris, 9 July 1980, [1981] RGAT 190 (Annot. Bigot).

7
Art. L. 322-26-1 Code des assurances.

8
Cass. com. 13 November 1972, Bull. civ. 1972.IV.284; Cass. Civ. 3e, 10 October 1978, J.C.P. 1980.II.19390 (Annot. Gable).

9
Cass. civ. 2e, 5 May 1982, Bull. civ. 1982.II.69; Cass. com., 11 October 1971, D.1972.688 (Annot. Grivart de Kerstrat).

10
Cass. civ. 3e, 18 May 1971, J.C.P. 1972.II.16974 (Annot. P.L.).

11
Cass. civ. 1re, 22 October 1996, [1996] Revue générale du droit de l'assurance (RGDA) 941 (Annot. Bigot).

12
Paris, 26 February 1982, D.1983.297 (Annot. Le Cannu).

13
See 'Journée du Comité français de l'arbitrage du 5 mars 1988', [1988] Rev. arb. 431, especially reports by B. Oppetit and J.L. Goutal.

14
See E. Loquin, 'Arbitrage et cautionnement' [1994] Rev. arb. 235.

15
Loquin, op.cit.supra note 14 at § 13.

16
Ibid.

17
Ph. Simler, Le cautionnement (Litec, 1982) at § 232.

18
Loquin, op. cit. supra note 14 at § 18.

19
Paris, 19 December 1986, [1987] Rev. arb. 359.

20
Art. L. 124-3 Code des assurances.

21
Loquin, op. cit. supra note 14 at § 23.

22
Art. L. 121-12 Code des assurances.

23
Cass. com., 13 May 1966, [1967] Rev. crit. dr. internat. privé 355 (Annot. Metzger); Paris, 13 November 1992, [1993] Rev. arb. 632 (Annot. Goutal). Compare Cass. com. 25 November 1986, [1987] Rev. trim. dr. civ. 587 for a jurisdiction clause.

24
Ibid.

25
Loquin, op. cit. supra note 14 at § 25, quoting Marty & Raynaud, Les obligations, vol. 2 at § 402.

26
Cass. civ. 1re, 18 October 1954, [1954] RGAT 424 (Annot. Besson).

27
Cass. civ. 1re, 8 November 1988, [1989] RGAT 109 (Annot. Bout); Cass. civ. 1re, 20 January 1998, [1998] RGDA 123 (Annot. Kullmann).

28
Lamy Assurances, § 1329.

29
Cass. civ. 1re, 30 October 1995, [1996] RGDA 439 (Annot. Beauchard).

30
Art. L. 113-17 Code des assurances.

31
J. Bigot, 'Commentaire de la loi du 31.12.89' J.C.P. 1990.I.3437, § 47.

32
Cass. civ. 1re, 23 March 1999, Lamyline (www.lamyline.com).

33
Paris, 4 January 1960, [1960] Rev. arb. 22; Paris, 21 May 1964, D.1964.602.

34
Loquin, op. cit. supra note 14 at §§ 29 and 3.

35
Goutal, op. cit. supra note 13 at 454 and n. 12.

36
Cass. civ., 12 June 1968, J.C.P. 1968.II.15584.

37
Loquin. op. cit. supra note 14 at § 37.

38
Loquin. op. cit. supra note 14 at § 30, for surety bond. Robert & Moreau, L'arbitrage, 6th ed., at §§ 120-2.

39
Loquin. op. cit. supra note 14 at § 31.