Degree of Institutionalization: Obligation, Precision, and Delegation

Following the literature on legalization, we assume that the success of a PPP is highly dependent on three features of its rules: namely their obligatory status, their relative precision, and the delegation of their interpretation and application to a third party. Obligation means that actors “are legally bound by a rule or commitment in the sense that their behavior there under is subject to scrutiny under the general rules, procedures, and discourse of international law” (Abbott et al. 2000, 401). Precision means “that rules and commitments unambiguously define the conduct they require, authorize, or proscribe” (Ibid., 412). By defining “clearly and unambiguously” what is expected of actors “in a particular set of circumstances,” precision “narrows the scope for reasonable interpretation.” Delegation means “that third parties have been granted authority to implement, interpret, and apply the rules; to resolve disputes, and (possibly) to make further rules” (Ibid., 401). The characteristic form is legal delegation to a third-party dispute settlement mechanism. There is a remarkable variety of international legalization, and we assume that this also holds true for PPPs. Hence, we apply this concept of legalization to PPPs and distinguish a continuum from high to low “degrees of institutionalization” (Beisheim et al. 2005). Instead of focusing solely on legal obligation, we focus on language and other indicators of intent to be bound by the rules of a PPP. When analyzing the obligation within PPP, we do not focus solely on the legal bindingness—as we hardly find legally binding rules within private regimes—but more on the overall level of bindingness, also including other forms such as social commitments or various types of employed conditionality. Instead of focusing on delegation to a court, we focus on the delegation to an external monitoring agency. In doing so, we link the idea of delegation to findings of the enforcement theory to compliance, that is, the relevance of monitoring and sanctions (Downs et al. 1996).

Taking all three elements together (see table 5.4), our hypothesis on the effectiveness of PPP (H1) reads: the higher the overall degree of institutionalization, the more effective the partnership and the higher the compliance with its rules.

table 5.4 Degree of Institutionalization

Obligation (Bindingness and Conditionality)

Precision of Norms

Delegation

(Monitoring,

Evaluation,

Implementation)

High

(3)

Binding rules (e.g., contract between PPP partners), conditionality

Determinate rules: no or only narrow issues of interpretation

External

monitoring,

centralized

enforcement

Medium

(2)

Contingent obligations and escape clauses

Areas of discretion and issues of interpretation

Internal or external monitoring and publicity

Low

(1)

Rules not binding

Broad rules: impossible to determine whether conduct complies

No monitoring or confidential monitoring

 
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