Private rule-making and European governance - issues of legitimacy

Private rule-making is widely discussed as supporting institutional policy making and legislation at EU level. The following argues for a different perspective on private actor rule-making, focusing on the autonomy of social realms within which self-governance may be possible. From this perspective, private actor rule-making is considered as a potential gain in self-determination. Substantive autonomy and enhanced self-determination of all those affected are considered as prerequisites for accepting rules made by private actors. Opening the field for discussion, some manifestations of (envisaged) private rule-making at EU level are explored and discussed as to whether they should be accepted as legitimate forms of self-governance.

The emergence of the private entrepreneur in reform era China: re-birth of an earlier tradition, or a more recent product of development and change?

A private sector that now dominates economic activity has emerged in China since 1978, even though many of the essential institutions for market competition have been lacking or are under-developed. We find that there is no evidence that this upsurge of entrepreneurship is a re-birth of an earlier tradition. Instead, the dynamics of entrepreneurial emergence can be attributed to reforms and institutional changes that have occurred since 1949, both before and after the introduction of economic reforms in late 1978. We find that these institutional changes have been evolutionary, adapting to, as well as shaping, emerging forms of economic activity, including entrepreneurship. Our conclusion is that these dynamics of adaptation and evolution produce ‘rule ambiguities’ within the institutional framework that create opportunities for entrepreneurs as well as making these opportunities vulnerable to further institutional change.

Retrospectivity and the rule of law

This book analyses and refines the arguments for and against retrospective rule making, concluding that there is one really strong argument against it: the expectation that, if an individual's actions are considered by a future court, the legal consequences of that action will be determined by the law that was discoverable at the time the action was performed. This argument, which goes to the heart of the rule of law, is generally determinative. However, in some cases the argument does not run and this book suggests that, in some areas of law, reliance should be actively discouraged by prospective warnings that the law is subject to change.

Development of a productivity asessment toll for native spotted gum forest on private land based on estimates of forest growth on Crown land.

Reliable estimates of forest productivity are essential for improved predictions of timber yields for the private native spotted gum resource in southern Qld and northern NSW. The aim of this research was to estimate the potential productivity of native spotted gum forests on private land by making use of available inventory data collated from Qld and northern NSW for spotted gum forest on Crown land (i.e. state forests). We measured a range of site-related factors to determine their relative importance in predicting productivity of spotted gum forest. While measures such as stand height and height-diameter relationships are known to be useful predictors of productivity, we aimed to determine productivity for a site where this information was not available. Through estimation of stand growth rates we developed a spotted gum productivity assessment tool (SPAT) for use by landholders and extension officers. We aimed to develop a tool to allow private landholders to see the benefits of maintaining their timber resource. This paper summarises the information used to develop the SPAT with a particular focus on forest growth relationships.

Global Governance and International Migration: A Case Study of Trafficking of Human Beings

The purpose of this article is to explore the concept of “global governance” and the way it applies to the management of international migration by using trafficking of human beings as a case study. Globalization has altered the scene of world politics. A traditional State-centric view of the world order has been overshadowed by the increasing importance of other actors, including the United Nations, multi-national corporations and non-governmental organizations. Globalization has also altered the dynamics of rule making and their enforcement within the international system, in that not only States but also these non-State actors exercise enormous influence. The concept of global governance acknowledges this as it aims to include all the pertinent actors involved. To illustrate this further, the author will use trafficking of human beings as a case study. Two key principles of global governance are participation and accountability. This article will analyse how these principles are reflected and implemented in the regime dealing with the prevention and suppression of trafficking of human beings.

Accounting, Regulation and Profitability: The Case of PFI Hospital Refinancing

The refinancing of PFI (Private Finance Initiative) projects represents one of the most contentious aspects of Public Private Partnerships (PPPs) in the UK. The negative publicity associated with UK PFI refinancing deals is associated with several factors, including, evidence of massive private sector profit making, the failure of private sector financiers to share refinancing profits and, lastly, private sector frustration of adequate regulatory intervention in this area. Utilising a dynamic model of capital market and state interaction, this paper explains these outcomes as a function of effective private sector lobbying of bureaucratic state agencies to alter the structure of accounting, accountability and regulation with the goal of securing favourable profit and risk outcomes. These dynamics are illustrated with reference to the history of UK PFI refinancing and a case study of one of the projects where these gains reached extreme levels.

Adaptation of agriculture to climate change in Quebec : the co-construction of agricultural policies in the RCM of Haut-Richelieu

Les facteurs climatiques ainsi bien que les facteurs non-climatiques doivent être pris en considération dans le processus d'adaptation de l'agriculture aux changements et à la variabilité climatiques (CVC). Ce changement de paradigme met l'agent humain au centre du processus d'adaptation, ce qui peut conduire à une maladaptation. Suite aux débats sur les changements climatiques qui ont attiré l'attention scientifique et publique dans les années 1980 et 1990, l'agriculture canadienne est devenue un des points focaux de plusieurs études pionnières sur les CVC, un phénomène principalement dû à l’effet anthropique. Pour faire face aux CVC, ce n’est pas seulement la mitigation qui est importante mais aussi l’adaptation. Quand il s'agit de l'adaptation, c'est plutôt la variabilité climatique qui nous intéresse que simplement les augmentations moyennes des températures. L'objectif général de ce mémoire de maîtrise est d'améliorer la compréhension des processus d'adaptation et de construction de la capacité d'adaptation ai niveau de la ferme et de la communauté agricole à travers un processus ascendant, c’est-à-dire en utilisant l'approche de co-construction (qui peut également être considéré comme une stratégie d'adaptation en soi), pour développer une gestion et des outils de planification appropriés aux parties prenantes pour accroître ainsi la capacité d'adaptation de la communauté agricole. Pour y arriver, l'approche grounded theory est utilisée. Les résultats consistent de cinq catégories interdépendantes de codes élargis, conceptuellement distinctes et avec un plus grand niveau d'abstraction. La MRC du Haut-Richelieu a été choisie comme étude de cas en raison de plusieurs de ses dimensions agricoles, à part de ses conditions biophysiques favorables. 15 entrevues ont été menées avec les agriculteurs. Les résultats montrent que si certains agriculteurs ont reconnu les côtés positifs et négatifs des CVC, d’autres sont très optimistes à ce sujet comme se ils ne voient que le côté positif; d'où la nécessité de voir les deux côtés des CVC. Aussi, il y a encore une certaine incertitude liée aux CVC, qui vient de la désinformation et la désensibilisation des agriculteurs principalement en ce qui concerne les causes des CVC ainsi que la nature des événements climatiques. En outre, et compte tenu du fait que l'adaptation a plusieurs caractéristiques et types, il existe de nombreux types d'adaptation qui impliquent à la fois l'acteur privé et le gouvernement. De plus, les stratégies d'adaptation doivent être élaborées conjointement par les agriculteurs en concert avec d'autres acteurs, à commencer par les agronomes, car ils servent en tant que relais important entre les agriculteurs et d'autres parties prenantes telles que les institutions publiques et les entreprises privées.

Neo-Gramscianism

Gramscian concepts have been utilized by scholars to analyze and illuminate various aspects of GLOBAL ENVIRONMENTAL GOVERNANCE. A foremost application of neo-Gramscianism to the scholarship on global environmental governance has been in challenging the basic premise of orthodox regime theory that international environmental rule-making is the exclusive preserve of state actors. Gramscian theory is very sensitive to the role and importance of political contestations, accommodations and compromises, which many have noted as the ‘stuff’ of environmental governance. Crucially, while a Gramscian analysis is sensitive to the counter-hegemonic potential of the subordinate class and the ever contested and changing contours of power in a social regime, it does not subscribe to the unlimited possibility of outcome. Given the utility of neo-Gramscian ideas, as demonstrated by the scholarship discussed, it is surprising that the approach has not been deployed more widely in the scholarship on global environmental governance.

Självet, rollerna och pågående koordinationer av mänskliga handlingar : Om att försöka se ’samhället’ som något annat än fängelse eller marionetteater

The self, roles and the ongoing coordination of human action. Trying to see ‘society’ as neither prison nor puppet theatre In the article it is argued that structural North-American role-sociology may be integrated with theories emphasizing ‘society’ as ongoing processes (f. ex. Giddens’ theory of structuration). This is possible if the concept of role is defined as a recurrence oriented to the action of others standing out as a regularity in a societal process. But this definition makes it necessary to in a fundamental way understand what kind of social being the role-actor is. This is done with the help of Hans Joas’ theory of creativity and Merleau-Pontys concept of ‘flesh’ arguing that Meads concept of the ‘I’ maybe understood as an embodied self-asserting I, which at least in reflexive modernity has the creative power to split Meads ‘me’ into a self-voiced subject-me and an other voiced object-me. The embodied I communicating with the subject-me may be viewed as that role-actor which is something else than the role played. But this kind of role-actor is making for new troubles because it is hard to understand how this kind of self is creating self-coherence by using Meads concept of ‘the generalized other’. This trouble is handled by using Alain Touraines concept of the ‘subject’ and arguing that the generalized other is dissolving in de-modernized modernity. In split modernity self-coherence may instead be created by what in the article is called the generalized subject. This concept means a kind of communicative future based evaluation, which has its base in the ‘subject’ opposing the split powers of both the instrumentality of markets and of life-worlds trying to create ‘fundamentalistic’ self-identities. This kind of self is communicative because it also must respect the other as ‘subject’. It exists only in the battle against the forces of the market or a community. It never constructs an ideal city or a higher type of individual. It creates and protects a clearing that is constantly being invaded, to use the words of the old Frenchman himself. Asa kind of test-case it is by the way in the article shown how Becks concept of individualization may be understood in a deeply social and role-sociological way.

Housing service officers : agents of the state or customer service officers?

Staff employed in the Victorian Office of Housing are invariably required to exercise discretion in their day-to-day work managing housing assets and providing services to public housing tenants. Policies specify processes but they never cover all situations and do not provide guidance on competing objectives. For example, preparing a property for reletting is a process with protocols and budget constraints. However, staff can make procedural variations that compy with policy. These variations, generally learnt from peers on the job, often result in budget over runs, but do result in improved properties for new tenants. Discretion is being exercised in balancing housing asset, budget control and tenant service objectives. A housing officer sums up the enduring tension in balancing objectives in the question and statement:’ Am I an agent of the state or a customer service officer? Because I can’t be both’. Organisationally these tensions are spoken about as ‘management issues’, ‘policy reengineering’ and ‘unrealistic understandings’. Using data from an ethnographic study in the Victorian Office of Housing, the paper addresses the question: ‘What do we know about the way in which front line housing officers manage competing objectives in their daily work and how might this knowledge be usefully used in the development of operational policy?’ The paper will explore the way in which complex administrative rules are used as a device to align staff to the Office of Housing objectives and limit the exercise of discretion by frontline staff. Against the background of this analysis the paper will consider the limitations of rule making and the extent to which other organisational strategies might be important for improvements in service provision in a context of constrained resources and limited resources.

Enforcing international financial standards in Brazil: limits and possibilities for adoption of IOSCO principles

Foreign capital and institutional investors play a key role in the Brazilian capital and financial markets. Internationally promoted regulatory patterns, especially IOSCO principles, have been increasingly influencing administrative rule making by the Brazilian Securities and Exchange Commission (CVM) as well as the adoption of transnational rules in Brazil by means of self-regulatory activity. Even though there is a certain level of convergence of market regulatory standards at the transnational level, implementation and enforcement of rules remains essentially domestic. We analyze two case studies regarding the transposition of international standards into the Brazilian legal system, which illustrate this tension between the transnational and domestic dimensions of financial markets regulation. The first case concerns a CVM rule on disclosure of executive compensation and the its interpretation by local courts. The second case refers to the adoption of suitability rules.

Trade and investment rules: Latin American perspectives

Includes bibliography

Análise da caracterização das instituições privadas sem fins lucrativos na legislação brasileira no período republicano

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Criador e criatura: os Estados Unidos e a Organização Mundial do Comércio (OMC)

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES)

The World Trade Organization at Work: Performance in a Member-Driven Milieu

This article discusses performance in the context of the World Trade Organization (WTO). Applying the framework by Gutner and Thompson and inspired by principal-agent theory, it is argued that existing studies have underspecified the institutional milieu that affects performance. The WTO represents a member-driven organization where Members are part of the international organization (IO) (e.g., through rule-making) and at the same time act outside the IO (e.g., through implementation). Thus, a narrow reading of the IO (focusing on the civil servants and the Director-General and his staff) will not suffice to understand IO performance in the WTO context. Selected evidence is presented to illustrate aspects of the WTO’s inner-working and the institutional milieu of performance. In addition, the article discusses a number of performance parameters, including the relationship between Secretariat autonomy and performance, the role of information, and the mechanisms of performance aggregation. The article ends by cautioning against quick fixes to the system to improve performance.