Limiting costs or correcting market failures? Finance ministries and frame alignment in UN climate finance negotiations

Finance ministries are increasingly involved in UN climate finance negotiations, yet this development received very limited attention in the literature on climate finance or climate negotiations. It is not obvious from the literature on bureaucratic politics how these ministries will position themselves on climate finance: they may frame climate finance as expenditure to be limited or as an instrument for correcting the market failure of climate change. This paper investigates which frames have characterised the positions of finance ministries on key issues in the climate finance negotiations, and whether the use of a given frame corresponds to particular factors. Case studies of Denmark, India, Indonesia and the USA based on official documents and interviews show that the position of each finance ministry is generally consistent with one particular frame. The Indonesian and Danish finance ministries predominantly framed climate finance as a way of correcting a market failure. The Indian Ministry of Finance emphasised Common but Differentiated Responsibilities, which fits with the budget frame. The US Treasury’s position similarly fits with the budget frame while sharing elements of the market failure frame. Finance ministries that had the lead on climate finance were more likely follow the budget frame. The use of both frames cuts across the divide between industrialised and emerging economies. With the exception of the USA, left- and right-wing governments were equally likely to adopt either frame. These findings indicate that strengthening finance ministry forums built around the market failure frame can be a way of reducing norm fragmentation.     

China and India’s participation in global climate negotiations

In this paper, we discuss a range of issues concerning developing country participation in current global climate change mitigation negotiations, especially India and China. We argue that the problem of redefining ‘common yet differentiated responsibilities’ in a way which allows developing countries room to pursue their individual development goals while still achieving the necessary level of carbon mitigation is central to the debate. The choice of negotiating instruments, effective technology transfer and financial support, and other related issues have been raised principally by China and India, and may also be raised by several other countries. Kyoto non-compliance by Annex 1 countries will also greatly impact the negotiating power of China and India and other developing countries. We conclude that, once basic principles are clearly defined, the greatest incentive for China and India to participate in climate change negotiations is the prospect of future negotiating rounds that can be linked to a large number of climate change related issues, such as intellectual property, the potential for financial transfers and trade/market access.     

Transnational Models for Regulation of Nanotechnology

Like all technologies, nanotechnology will inevitably present risks, whether they result from unintentional effects of otherwise beneficial applications, or from the malevolent misuse of technology. Increasingly, risks from new and emerging technologies are being regulated at the international level, although governments and private experts are only beginning to consider the appropriate international responses to nanotechnology. In this paper, we explore both the potential risks posed by nanotechnology and potential regulatory frameworks that law may impose. In so doing, we also explore the various rationales for international regulation including the potential for cross-boundary harms, sharing of regulatory expertise and resources, controlling protectionism and trade conflicts, avoiding a "race to the bottom" in which governments seek economic advantage through lax regulation, and limiting the "nano divide" between North and South. Finally, we examine some models for international regulation and offer tentative thoughts on the prospects for each.     

Orchestra of Treaties: A Future Climate Regime Scenario with Multiple Treaties among Like-minded Countries

The Orchestra of Treaties scenario emerges if countries share the following principles for re-building the climate regime (1) recognize the sovereignty concerns attending energy policies; (2) build upon national interests in technology and development; (3) avoid conflicts and enhance cooperation by appropriately framing core issues; and (4) address not only short-term emission cuts but also long-term technological change.In this scenario, countries will share these principles by drawing on the hard lessons of past UNFCCC negotiations. The framing of the climate change problem as the allocation of emission quota created an adversarial style of negotiation that resulted in distrust among countries. Moreover, the negotiations have been characterized by unpredictable outcomes. Since energy policies were deemed as sovereignty concerns, countries did not want to put such issues on the agenda to avoid a potentially intrusive outcome. This negotiation style brought about shortcomings of the Kyoto Protocol and may lead to a stalemate in future negotiations.The scenario captures the dynamics that emerge when multiple efforts are pursued by flexible coordination of actors motivated through diverse incentives. The emerging regime, the Orchestra of Treaties, will consist of four building blocks, of which three grow outside of UNFCCC.

Realizing access and benefit sharing from use of genetic resources between diverging international regimes: the scope for leadership

This article examines how access and benefit sharing (ABS) in international transactions with genetic resources can be achieved and how Norway contributes to their realization. Regarding the first question, progress on the ground has been slow, but important principles have been agreed within the convention on biological diversity (CBD) and its Nagoya Protocol (NP). Although domestic legislation is adopted, key user countries remain reluctant. They argue that the ABS regime needs to be supplemented with sector approaches within forums such as the Food and Agriculture Organization. In principle, this may sound logical, but sector approaches may risk undermining the ABS regime of the CBD/NP. The principle of access is more user-oriented and benefit sharing is weaker in the relevant FAO negotiations. Against this background, the future practical significance of the ABS regime remains uncertain. Norway has played an important leadership role in ABS within the CBD/NP framework. This stems in part from ‘fortunate circumstances’, as Norway has relatively few stakes in this issue area, but also includes strong normative elements: Norway’s inclination to support weaker part, the South. The Norwegian position has also been solidified by good coordination and strong institutional capacity among the actors involved. However, there are indications of a growing split in the Norwegian position along sector lines. We do not yet have sufficient empirical evidence that this is the case—but if it is, achieving an effective ABS regime may be even more difficult.     

“PRISONERS” OF PRIVATE INDUSTRY: ECONOMIC DEVELOPMENT AND STATE SUNSHINE LAWS

There is an ongoing push by governments to keep secret their negotiations with private businesses, resulting in a state-eat-state battle for jobs, with the governments often offering potential businesses millions of dollars in tax breaks and other incentives. A tire factory could pop up next door and community members may not know about it until after the deal is signed. Some states exempt such negotiations in their sunshine laws. Some include such exemptions in the codes that govern economic development agencies themselves rather than in the sunshine law. Responses by courts to such secrecy has been mixed. This article reviews fifty state codes to determine whether officials are free to negotiate behind closed doors, and examines relevant case law. It also offers recommendations for policy changes to ensure transparency in such negotiations.     

论府际关系的法律调整

府际关系即政府之间的关系,它既包括中央政府与地方政府之间的关系,也包括地方政府相互之间的关系。长期以来,我国府际关系多靠政策调整,随意性大,民主性、科学性、公正性欠缺。如何将府际关系纳入法律调整的范围,使其满足经济、社会发展之需求,符合民主、理性、公正、效率等法之基本精神,值得理论界充分关注。本文探讨了府际关系的内涵和变迁,法律调整的必要性、府际关系要解决的主要问题,法律调整要遵循的基本精神及立法构想等。     

分权改革背景下的地方财政自主权

为实现政治统治的合法化,近现代国家在民主的基础上形成了以规范为中心的权力认知模式。建国与改革为主题的国家制度建设所呈现的渐进性和试验性,使我国在中央与地方的财政关系上,形成了规范内外不同的权力生长与存续机理。碎片化的规范,赋予了地方在特定领域内的财政自主权。同时,依赖政治过程的分散化策略,引致了权力的制度外溢,形成了诸多所谓的"事实上的财政自主权"。尽管正当的制度只能逐步建设和改进,但如果始终存在超越于法律规范之上的权力,法治秩序终将会崩裂。地方财政自主权,必须在规范主义的立场上循序形成。     

Factual causation in medical negligence

The conventional approach to causation in negligence is the "but for" test, decided on the balance of probabilities. Even when supplemented by the "material contribution" principle, satisfying the onus of proof of causation can be an insuperable obstacle for plaintiffs, particularly in medical cases. Yet, having found a breach of duty, a court's sympathies may gravitate toward the plaintiff at this point in the case. Accordingly, courts have sometimes accepted a relaxation of strict causation principles. The judicial devices are described: a special principle of causation in particular duties of care; a shifting burden of proof; "bridging the evidentiary gap" by drawing a robust inference of causation; treating a material increase in risk as sufficient proof of causation; and permitting causation to be established on the basis of the loss of a material chance of achieving a better outcome and discounting damages. In Accident Compensation Corp v Ambros [2007] NZCA 304 the New Zealand Court of Appeal recognised the need for a legal device to ameliorate the injustice sometimes caused by the strict rules of causation, and preferred the "inferential reasoning" approach favoured by the Canadian common law for use in the context of the accident compensation scheme. It is hoped that the New Zealand Supreme Court approves Ambros if the opportunity arises.     

论我国在遗传资源保护国际谈判中的立场和对策

遗传资源的保护和利用,特别是其获取和惠益分享等问题一直以来为国际社会和世界各国所关注.旨在探讨为了保护和持续利用遗传资源,我国在有关的国际谈判中对有关问题应采取的立场和对策.     

Open or closed meetings? Explaining nonstate actor involvement in the international climate change negotiations

When do states allow nonstate actors (NSAs) to observe negotiations at intergovernmental meetings? Previous studies have identified the need for states to close negotiations when the issues under discussion are sensitive. This paper argues that sensitivity alone cannot adequately explain the dynamic of closing down negotiations to observers. Questions that have received little attention in the literature include which issues are considered sensitive and how the decision is made to move the negotiations behind closed doors. This paper examines the practices of NSA involvement in climate diplomacy from three analytical perspectives: functional efficiency, political dynamics, and historical institutionalism. Based on interviews and UNFCCC documents, this paper suggests that to understand the issue of openness in negotiations, institutional factors and the politics of NSA involvement need to be better scrutinized. The paper shows that each perspective has particular advantages when analyzing different dimensions of the negotiations, with implications of how we understand the role of NSAs in global environmental governance.     

Fairness in Bargaining

This paper uses historical and contemporary philosophical discussions of fairness to present a structural approach to the definition of fairness. After establishing a set of standards (not a specific definition), we assess the impact of fairness in negotiations and bargaining. Our analysis concludes that truly fair behavior is absent in bargaining and negotiations. Instead, behaviors that have been called just can also be characterized as self-interested. Our review suggests that the term fairness has been used rather loosely, as a convenient label or as a more palatable alternative to self-interested explanations for an individual's choices. For reasons of both parsimony and accuracy, we recommend that the self-interest of the actors be carefully considered before calling their bargaining behavior fair.     

Data sharing

The sharing of research data to permit secondary analyses is rooted in the collegial tradition of science. Recently there has been a gradual shift from viewing data sharing as a voluntary activity to considering sharing as an obligation of researchers. This paper identifies two important dimensions of data sharing: the degree to which the primary investigators may determine whether they will share their data and the reason for which the data set is being requested. In addition to discussing the dimensions of data sharing, the negative aspects of viewing data sharing as an obligation are discussed. These negative factors are increased burden on the primary investigator; lack of incentive to share data; and loss of control over the use of data and negative effects on scientific progress. Recommendations regarding data sharing policies are made in light of these negative effects.     

An Evaluation of Pre-Kyoto Differentiation Proposals for National Greenhouse Gas Abatement Targets

Although the Kyoto Protocol has set a precedent for future climate negotiations, particularly with respect to differentiation of targets between countries, the current approach is likely to be insufficient as a foundation for future targets. A more systematic approach is deemed necessary to meet the challenges of negotiating new targets after 2012 as well as involving the USA and perhaps developing countries. We argue that better negotiation tools can be helpful in this regard. We thus present an overview of more systematic differentiation methods for national greenhouse gas reduction targets. We draw from the proposals that were submitted in the climate negotiations from 1995 to 1997 leading up to the Kyoto Protocol, the EU's Triptique approach for internal differentiation of targets, and three proposals discussed in the literature on fairness principles. The most promising and helpful proposals for future negotiations are given particular attention: the second proposal by Japan, the French proposal, the Norwegian proposal, the Brazilian proposal, and Triptique. A numerical illustration of the former three together with the Sovereignty, Egalitarian, and Ability to Pay fairness principles is provided. Using resemblance to the Kyoto Protocol to measure political feasibility, we find that the proposals rank in the order; (1) the second Japanese; (2) the French; (3) the Norwegian; (4) the Sovereignty; (5) the Ability to Pay; and (6) the Egalitarian, the last being particularly infeasible.     

Free choice of legal fee shifting rules?

In every country in the world parties to private litigation are subject to a predetermined fee shifting regime. While there are no institutionalized opt-out provisions so far, we demonstrate that such provisions could improve welfare. We argue that private negotiations are not a viable alternative to such opt-out provisions. We derive the conditions under which welfare improvements occur and suggest an applicable design for such an opt-out scheme.     

论医疗侵权纠纷案件的举证责任

举证责任分配是证据制度的核心,其基础理论为“法律要件说”,由此而推导出“谁主张,谁举证”的一般举证责任分配规则。举证责任倒置是对“谁主张,谁举证”规则的修正,与侵权行为法相伴而生,其适用条件是由法律严格限制的。《关于民事诉讼证据的若干规定》规定医疗侵权诉讼实行举证责任倒置,这样规定并不妥当,理由也不充分,缺少法律基础,对医学发展不利。要完善我国医疗侵权诉讼举证责任,应当从明确医疗侵权行为的专家责任性质入手,建立专家举证制度,实行举证责任轮换,构建分散医疗风险制度。     

宏观调控权配置原则论

宏观调控权的配置事关宏观调控的效果。要合理配置宏观调控权,就必须确定宏观调控权配置的原则。宏观调控权的配置包括横向配置与纵向配置。横向配置指宏观调控权在中央国家机关之间的分配;纵向配置指宏观调控权在中央与地方国家机关之间的分配。由于宏观调控是事关国民经济全局性的重大事务,因此,宏观调控决策权的配置应实行集权原则,由中央国家机关独享;而宏观调控执行权的配置应实行分权原则,由中央政府与地方省级政府在各自的职能范围内分享。     

Implications of EU Enlargement on the EU Greenhouse Gas 'Bubble' and Internal Burden Sharing

Currently, the EU-15 forms the only 'bubble' under the Kyoto Protocol and has negotiated an internal burden sharing. A strategic EU climate policy should include accession countries. Thus, even in the case of early ratification of the Kyoto Protocol by 2002, it would be sensible to form a bubble with all countries that are certain to be EU members during the commitment period 2008–2012. Of course due to Art. 4.4 of the Protocol the EU-15 has to stick to its own bubble. However, nothing prevents it from forming an implicit bubble including all first wave countries by inducing them to form a bubble on their own and transfer the surplus to the EU-15. Similarly, second wave countries should form a bubble of their own to co-ordinate JI and permit transfers to the EU. This would reduce the gap between business-as-usual and the target by about 50%. If ratification is delayed to a point where it is clear which second wave countries will be members by 2008, the bubble should be extended by those countries. When in 2005 target negotiations start for the second commitment period, the EU should negotiate a bubble consisting of all states being certain to be members by 2013.     

论我国民事诉讼证明责任分配的一般原则

最高人民法院《关于民事诉讼证据的若干规定》第二条第一款确立了我国民事证明责任的一般原则。该原则可以概括为两个命题:一是提出诉讼请求的当事人对权利根据事实承担证明责任,反对诉讼请求的当事人对抗辩事实承担证明责任;二是当事人各自负有证明责任的事实是实体法所规定的要件事实。我国证明责任分配一般原则需要借助于一定的理论方法才能适用于案件,法律要件分类说应当是主要和首选的理论方法,但是不能排除其他理论的运用。关于证明责任分配一般原则的例外亦即举证责任倒置,现行司法解释中关于特殊侵权案件证明责任分配的规定,多数属于证明责任分配一般原则的具体化,只有很少的内容属于一般原则的例外,构成举证责任倒置。     

Restricting the import of ‘emission credits’ in the EU: a power struggle between states and institutions

This article examines the development of a cap on the use of so-called ‘project credits’ in the EU emissions trading scheme. It investigates how the issue of such a limit was addressed in the negotiations of the Linking Directive, and how it has been dealt with in the later implementation of this directive. The article applies two explanatory approaches: one based on intergovernmentalist theory, assuming that the cap reflected the preferences of the EU Member States; and one based on the multi-level governance model, assuming that the cap expressed the preferences of EU institutions rather than Member States. What is found is a two-stage development: during the negotiations of the Linking Directive, Member States managed to secure a no-cap solution allowing extensive use of the project credits. In the later implementation phase, however, when the emissions trading scheme was up and running and a certain legitimacy for the system had been established, the Commission managed to ‘regain control’ by bringing back a cap. Thus, the project credit cap—and by that, the very nature of the EU emissions trading scheme—has been the subject of a continuing power struggle within the EU—and different theoretical perspectives explain different stages of this process.