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PANEL 12 – PERFORMANCE, PUBLIC
MANAGEMENT & LAW
Sanders & Heldeweg
A legal-administrative design framework for
PPP in renewable energy projects
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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:
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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 of 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 of 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 org. behavior Sequence of decisions with public authority Intended societal effect (outcomes) Steering behavior by contract. obligations 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 / obligation) Contract, property/ ownership Contract, property/ ownership Not feasible
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