PANEL 12 – PERFORMANCE, PUBLIC MANAGEMENT & LAW Sanders & Heldeweg A legal-administrative design framework for PPP in renewable energy projects NIG Conference 2013 1
A DESIGN FRAMEWORK FOR PPP Wicked challenge of enhancing sustainable energy Government takes public interest - and collaboration with private parties / interests Legitimacy of PPP - Beethams model of Legitimacy of Political/public Authority Applied to 3 modes of governance / Institutional environments - With empirical and normative ontology Leads to 5 step ‘form follows function’ design framework - as to ‘best ensure’ legitimacy of PPP as hybrid governance - in most proper legal form and by well-considered trade-offs 2
A DESIGN FRAMEWORK FOR PPP Step 1: Sustainable energy challenge is perceived as public interest Types of interests in society (WRR) Societal interests Private / personal Subset: interests Public interests Liberal State perspective: Public Interests remain societal interests with free private party involvement, unless restricted (by regulation) 3
A DESIGN FRAMEWORK FOR PPP Step 2: consider legitimate public governance Legitimacy approached by 3 dimensions of Beetham (1991) Criteria of Legitimacy Form of non-legitimate power 1. Conformity to rules (legal 1. Breach of rules validity) 2. Justifiability by shared beliefs 2. deficit by discrepancy between rules and shared beliefs; absence of shared beliefs 3. Legitimacy through expressed 3. Withdrawal or absence of of consent consent This is relevant for public authority; when exercised by use of PPP, we need to look beyond an hierarchical perspective…… 4
A DESIGN FRAMEWORK FOR PPP Considering options of Legitimate Public Governance Legitimacy 3 modes of Governance Dimensions Market Network Hierarchy Legality Legal personality, Freedom of Public Office, Rule property, contract, association, legal of Law fair competition, personality of (constitutional & consumer societal enterprise Administrative protection Law) Shared beliefs Equal freedom Voluntarism, Citzen autonomy & (Liberal state) Commutative collective action, servient gov’t justice reciprocity Distributive justice Communicative justice Consent Exit Loyalty Voice Reciprocal Inclusiveness & Democracy & agreement acceptance Human rights 5
A DESIGN FRAMEWORK FOR PPP Step 3 – Consider risks (project based) Forms of legitimacy failure across modes of governance Risks of failure in governance of innovative projects Risks Market Network Hierarchy Forms of Negative Exclusivity, Supply control, failure external or hierarchy in bureaucratic distributive network inefficiency, effects lack of knowledge Double loop: to – by PPP – include public in private or v.v. may cause secondary failures 6
A DESIGN FRAMEWORK FOR PPP Step 4: Chosing proper PPP-type PPP 4 Characteristics 3 Types of functioning Market-PPP Network-PPP Authority-PPP Objective Efficient Provoke useful Legitimate transaction participation decision making Internal relations Calculative Strategic Unitary coordination P-A coordination by coordination by relation participation shared power + resp. Results Contractual set of Convergence of Sequence of (output) performance org. behavior decisions with relations public authority Intended societal Steering behavior Steering behavior Steering behavior effect (outcomes) by contract. by strategic by command or obligations coordination prohibition 7
A DESIGN FRAMEWORK FOR PPP Step 5: deciding on proper legal form Step 5 Determination of the Legal Form of PPP Legal Forms 3 Modes of governance Market-PPP Network-PPP Authority-PPP As entity Esp. corporations Esp. Associations Esp. public (organization) and foundations associations & foundations 3 basic forms E.g. company E.g. trust, union, E.g. - Association (ltd), church, interest representative, - corporation cooperatives, group, voluntary corporate or - foundation partnerships committees cooperative body, public office Not as entity Contract, Contract, Not feasible (entitlement / property/ property/ obligation) ownership ownership 8
A DESIGN FRAMEWORK FOR PPP Discussion 9
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