Rigour of “an agreed outcome with legal force”

Legal assistance paper

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Date produced: 11/12/2011

1. What is the rigor (i.e. legal bindingness) of the new language “an agreed outcome with legal force?”

2. Is “an agreed outcome with legal force” more or less legally binding than “a legal outcome applicable to all parties” and also “a legally binding agreement” (the latter two being language used in previous drafts)?

In descending order of legal “bindingness” the terms can be ranked as follows:

1. “legally binding agreement”

2. “agreed outcome with legal force”

3. “legal agreement”

4. “legal outcome applicable to all parties”.

The terms “legal agreement”, or “agreed outcome with legal force” have similar meanings that connote an agreement between two or more parties and the intention of the parties to be accountable for that agreement. Both of these phases therefore have some “bindingness”. But the term “a legally binding agreement” even more clearly indicates that the parties intend to be bound. If your objective is to have “bindingness” there is probably no better to unambiguously capture such concept than with “legally binding agreement”. In order to improve on “legally binding agreement” one would stipulate how and where disputes will be resolved and the consequences for breach of agreement.

“Legal outcome applicable to all parties” connotes the least amount of “bindingness” as there is no clear indication of an agreement, binding or non-binding.

None of these terms alone can make an agreement binding. The substance of the agreement itself is more important than labels ascribed to them.

Research on international environmental agreements has shown that flexibility in agreements allows parties to set more ambitious targets. Insisting on a binding legal agreement is likely to be counterproductive because nations will only promise to achieve what they know is possible.