Options on Article 9.5 modalities (ex ante finance communications)

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 17/11/2017

How can space be made for discussion of modalities relating to ex ante finance communications under Article 9.5 PA going forward? Can you review current proposals and suggest additional options that have not been considered yet?

Summary:

We set out below: (1) our very brief analysis of the options proposed by the APA co-Chairs; and (2) some high level proposals for other ways in which the discussion of modalities under Article 9.5 may be taken forward.

Advice:

  • Brief analysis of APA co-Chair proposals

Option 1:

Pre-sessional dialogue to exchange views and deeper [sic] Parties’ understanding with respect to the information to be provided by Parties in accordance with Article 9, paragraph 5, of the Paris Agreement. In conjunction with the session of the SBs in April-May 2018. The co-facilitators, to be appointed by the Presidency, to prepare a report on the dialogue under their own responsibility.

This appears to be a one-off event before, but linked to, the SB session in April-May 2018 and would be an unstructured exchange of views relating to information provided under Article 9.5 PA.  It therefore does not establish a longer-term process going forward, nor does it expressly mandate discussions relating to modalities. While there is a report that will be written on the outcome of the dialogue, it is not clear what happens to that report, how it is used and what its status will be.  It is therefore, overall a vague option.

Option 2:

Pre-sessional structured dialogue

  • To advance consideration of the recommendations to be finalized at COP24 pursuant to paragraph 55 of Decision 1/CP21.
  • To provide an opportunity to further explore the possible additional matter being considered under agenda sub-item 8(a) of the APA with respect to the “modalities for biennially communicating the finance information on the provisions of public financial resources to developing countries in accordance with Article 9, paragraph 5, of the Paris Agreement”

Immediately before the session of the SBs in April-May 2018. To be facilitated by two co-facilitators to be appointed by the Presidency.

This appears to be a one-off event before the SB session in April-May 2018, but one that would be a structured dialogue and may therefore facilitate advancement of the issues being raised. It creates an opportunity to discuss the modalities under sub-item 8(a) of the APA agenda (i.e. on “further matters” relating to the implementation of the Paris Agreement).  It also suggests restricting discussion of “modalities” to the communication of information on the provision of public financial resources (in contrast to Article 9.5 which covers finance from a variety of sources). It will also involve consideration of types of information to be provided, per paragraph 55 of the Decision 1/CP.21 and therefore discussion on modalities may end up being subsumed in discussions on types of information. Moreover, it is not clear what the outcome of this process would be or how that outcome relates to the APA, SBI or COP process. It is therefore less vague than option 1 in terms of process and the content of discussions, but remains uncertain as to whether it would deliver the desired outcome.

Option 3:

Forum on matters related to the implementation of article 9, paragraph 5, of the Paris Agreement and paragraph 55 of decision 1/CP.21. In conjunction with the session of the SBs in April-May 2018 and with any additional session of the SBs. To be facilitated by the Presidency. The report on the Forum to be considered by COP24 in the context of finalizing the recommendations under agenda item 10(f).

This appears to be a potentially ongoing event before the SB session in April-May 2018. It would be a forum that relates to COP agenda item 10(f) and therefore not necessarily linked to the discussions under the SBs. The forum mandate links expressly to para 55 of Decision 1/CP.21 and COP agenda item 10(f), both of which concern “types of information”. Again, there is therefore a possibility that discussions on modalities would be subsumed within discussions on types of information. This option is consequently less vague that option 1 in terms of process and content of discussions, with the added benefit over and above option 2 that the process would be ongoing, but, like option 2, remains uncertain as to whether it would deliver the desired outcome because it is not specific to discussions on modalities.

  • High level alternative proposals

In addition to the pre- and/or inter-sessional dialogue on Art.9.5 and a forum to exchange views referred to in the co-Chair’s note, Parties could agree on a workshop (as just proposed for inclusion in the informal paper on COP23 outcomes); or also, for example, the following:

  • establishment of a joint technical session of SBSTA and SBI;
  • constitution of an ad hoc technical expert group to meet before or during the next session;
  • requesting a report, technical paper or other information by e.g. the secretariat (on good practice in other fora, for example) and/or the financial mechanism under the Convention/GCF/GEF;
  • establishment of panels, thematic advisory groups or specific task forces – which would however require a specific mandate and/or terms of reference;
  • adopting a whole work programme – the strongest tool and, therefore, the proposal most unlikely to succeed;
  • tasking the secretariat with preparing round-table discussions or organising and presenting webinars; or
  • cooperating with another international body with expertise on finance and financial flows, such as the Worldbank/IMF.