PANEL 12 PERFORMANCE, PUBLIC MANAGEMENT & LAW Sanders & - - PowerPoint PPT Presentation

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PANEL 12 – PERFORMANCE, PUBLIC MANAGEMENT & LAW

Sanders & Heldeweg A legal-administrative design framework for PPP in renewable energy projects NIG Conference 2013

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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

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A DESIGN FRAMEWORK FOR PPP

Step 1: Sustainable energy challenge is perceived as public interest Liberal State perspective: Public Interests remain societal interests with free private party involvement, unless restricted (by regulation)

Types of interests in society (WRR) Societal interests Private / personal interests Subset: Public interests

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A DESIGN FRAMEWORK FOR PPP

Step 2: consider legitimate public governance Legitimacy approached by 3 dimensions of Beetham (1991) This is relevant for public authority; when exercised by use of PPP, we need to look beyond an hierarchical perspective……

Criteria of Legitimacy Form of non-legitimate power

• 1. Conformity to rules (legal

validity)

• 1. Breach of rules
• 2. Justifiability by shared beliefs
• 2. deficit by discrepancy between

rules and shared beliefs; absence of shared beliefs

• 3. Legitimacy through expressed

consent

• 3. Withdrawal or absence of of

consent

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A DESIGN FRAMEWORK FOR PPP

Considering options of Legitimate Public Governance Legitimacy Dimensions 3 modes of Governance Market Network Hierarchy Legality Legal personality, property, contract, fair competition, consumer protection Freedom of association, legal personality of societal enterprise Public Office, Rule

• f Law

(constitutional & Administrative Law) Shared beliefs (Liberal state) Equal freedom Commutative justice Voluntarism, collective action, reciprocity Communicative justice Citzen autonomy & servient gov’t Distributive justice Consent Exit Reciprocal agreement Loyalty Inclusiveness & acceptance Voice Democracy & Human rights

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A DESIGN FRAMEWORK FOR PPP

Step 3 – Consider risks (project based) Forms of legitimacy failure across modes of governance Double loop: to – by PPP – include public in private or v.v. may cause secondary failures

Risks of failure in governance of innovative projects Risks Market Network Hierarchy Forms of failure Negative external or distributive effects Exclusivity, hierarchy in network Supply control, bureaucratic inefficiency, lack of knowledge

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A DESIGN FRAMEWORK FOR PPP

Step 4: Chosing proper PPP-type

PPP 4 Characteristics

• f functioning

3 Types Market-PPP Network-PPP Authority-PPP Objective Efficient transaction Provoke useful participation Legitimate decision making Internal relations Calculative coordination P-A relation Strategic coordination by participation Unitary coordination by shared power + resp. Results (output) Contractual set of performance relations Convergence of

• rg. behavior

Sequence of decisions with public authority Intended societal effect (outcomes) Steering behavior by contract.

• bligations

Steering behavior by strategic coordination Steering behavior by command or prohibition

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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 (organization) 3 basic forms

• Association
• corporation
• foundation
• Esp. corporations
• Esp. Associations

and foundations

• Esp. public

associations & foundations E.g. company (ltd), cooperatives, partnerships E.g. trust, union, church, interest group, voluntary committees E.g. representative, corporate or cooperative body, public office Not as entity (entitlement /

• bligation)

Contract, property/

• wnership

Contract, property/

• wnership

Not feasible

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A DESIGN FRAMEWORK FOR PPP

Discussion