New and additional finance

Legal assistance paper

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Date produced: 19/12/2009

Is there a legal form to enforce the “new and additional” fast start finance, since what has been offered does not account for “new and additional”? 

This question seems to be saying that the 30 billion is not new and additional, but instead that it is historic and already budgeted for.  The question appears to be asking if that’s a basis for a ‘legal case’.

There’s no legal case to prevent its inclusion in the text simply because there is suspicion about where the money will actually come from.  Amending the language to reflect the facts more accurately, or securing agreement to change the facts so that they reflect this language, is a political point for negotiation now.

Once the language goes in, the words ‘new and additional’ may be helpful if the facts do not match them.  At the moment this will only be a political deal, but it may lead to legally binding language during 2010.  If this concept makes it into the legally binding text, it could provide the basis for pressure on the Parties to honour it properly.

The form that legal pressure would take is not likely to be formal legal action.  Non-compliance could be made subject to consequences such as emissions targets adjustments, voting rights suspension, suspension of emissions trading participation, but formal enforcement would depend on the language agreed on compliance and is likely to be weak.  Legally binding language of this kind could, however, be useful in holding the Parties to account for failure to honour their commitments and using it as a lever to force meaningful change to practice.