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- Lehrstuhl für Politikwissenschaft (Univ.-Prof. Dr. Stephan Grohs) (2)
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From a democratic perspective, the replacement of government or parliament by a public manager to enforce budget discipline marks a serious intervention. Transferred to the local level, the replacement of the mayor and the council in three German municipalities by a state official (a so-called state commissioner) in recent years has raised questions about the legi-timacy and adequacy of such a strong interventionist instrument. One crucial answer to be given to this legitimacy issue concerns effectiveness, in other words whether the instrument can fulfill its designated task by improving the local fiscal situation since the fiscal success of the commissioner is a basic prerequisite for legitimacy. By using a time-series approach of the synthetic control method (SCM) and constructing a synthetic comparison case to the town of Altena, an answer regarding the commissioner’s potential to reduce the short-term debt can be given. The commissioner was successful in limiting the debt increase and seems to have reversed the debt trend. This finding supports the effectiveness of rather hierarchical instruments for ensuring fiscal discipline at the local level and thereby adds to broadening the international public management literature on municipal takeovers.
As WTO members increasingly invoke security exceptions and the first panel report insofar was issued in Russia-Traffic in Transit, the methodical and procedural preliminaries of their adjudication must be reassessed. The preliminaries pertain to justiciability and to the proper interpretive approach for their vague terms that seemingly imply considerable discretion to WTO members, all the more as general exceptions are subject to expansive interpretation. Reading security exceptions expansively appears not viable as they miss the usual safeguard against abuse (i.e. the chapeau of Arts XX GATT/XIV GATS). This lack of safeguards rather suggests caution in conceptualising them expansively, as do the systemic consequences of recent attempts to re-politicise security exceptions which run the risk of nullifying the concept of multilateral trade regulation altogether. Furthermore, the appropriate standards of review and proof must be explored which have to strike a balance between control and deference in national security.
Considering the new focus of the European Union (EU) trade policy on strengthening the enforcement of trade rules, the article presents the proposed amendments to the EU Trade Enforcement Regulation 654/2014. It analyzes the EU Commission proposal and the amendments suggested by the European Parliament Committee on International Trade (INTA), in particular with regard to uncooperative third parties and the provision of immediate countermeasures. The amendments will be assessed in view of their legality under World Trade Organization (WTO), Free Trade Agreement (FTA), and general international law and in view of their political implications for the EU’s multilateralist stance. Finally, the opportunity to amend Regulation 654/2014 to use it for the enforcement of FTA trade and sustainable development chapters will be explored. The analysis shows that the shift towards more effective enforcement should be pursued with due care for respecting existing international legal commitments and with more caution to multilateralism.
Artificial Intelligence (“AI”) is already being employed to make critical legal decisions in many countries all over the world. The use of AI in decision-making is a widely debated issue due to allegations of bias, opacity, and lack of accountability. For many, algorithmic decision-making seems obscure, inscrutable, or virtually dystopic. Like in Kafka’s The Trial, the decision-makers are anonymous and cannot be challenged in a discursive manner. This article addresses the question of how AI technology can be used for legal decisionmaking and decision-support without appearing Kafkaesque.
First, two types of machine learning algorithms are outlined: both Decision Trees and Artificial Neural Networks are commonly used in decision-making software. The real-world use of those technologies is shown on a few examples. Three types of use-cases are identified, depending on how directly humans are influenced by the decision. To establish criteria for evaluating the use of AI in decision-making, machine ethics, the theory of procedural justice, the rule of law, and the principles of due process are consulted. Subsequently, transparency, fairness, accountability, the right to be heard and the right to notice, as well as dignity and respect are discussed. Furthermore, possible safeguards and potential solutions to tackle existing problems are presented. In conclusion, AI rendering decisions on humans does not have to be Kafkaesque. Many solutions and approaches offer possibilities to not only ameliorate the downsides of current AI technologies, but to enrich and enhance the legal system.
This article conceptualizes the vulnerability of the different stages of Public-Private Partner-ship (PPP) models for corruption against the backdrop of contract theory, principal-agent theory and transaction cost economics, and discusses potential control mechanisms.
The article’s contribution to the debate on PPPs is twofold: first, an issue widely neglected by the pertinent literature is conceptualized. Second, as these PPPs are used not only in de-veloped countries whose legal order may shield them sufficiently, but also in developing countries, carving out the vulnerable points in PPP arrangements may enable decision mak-ers to install appropriate control mechanisms, if need be on project level.
The number of public–private partnerships (PPP) is on the rise. The authors analyse empirical evidence (including outcomes from interviews and a survey of civil servants in Germany), about the importance of transaction costs and trust in PPP implementation and perfor-mance. The paper makes an important contribution to the literature by reflecting on trust relations in PPPs, as well as providing empirical evidence for higher transaction costs in PPPs, compared to entirely public sector provision.
The Covid-19 pandemic affects societies worldwide, challenging not only health sectors but also public administration systems in general. Understanding why public administrations perform well in the current situation—and in times of crisis more generally—is theoretically of great importance; and identifying concrete factors driving successful administrative performance under today‘s extraordinary circumstances could still improve current crisis responses.
This article studies patterns of sound administrative performance with a focus on networks and knowledge management within and between crises. Subsequently, it draws on empirical evidence from two recent public administration surveys conducted in Germany in order to test derived hypotheses. The results of tests for group differences and regression analyses demonstrate that administrations that were structurally prepared, learned during preceding crises, and that displayed a high quality in their network cooperation with other administrations and with the civil society, on average, performed significantly better in the respective crises.
This paper asks which legal tools digital operators could use to manage colliding rights on their platforms in a digitalised and transnational space such as the Internet. This space can be understood as a “modern public square”, bringing together actions in the digitalised world and their interactions with actual events in the physical world. It is then useful to provide this space with a discursive framework allowing for discussing and contesting actions happening on it. In particular, this paper suggests that two well-known legal concepts, proportionality and sanctions, can be helpfully articulated within that discursive framework. In a first step, proportionality, a justificatory tool, is often used to suggest a way for managing colliding rights. This paper argues that for proportionality to be useful in managing colliding rights on digital platforms, its role, scope and limits need to be better framed and supplemented by an overall digital environment which can feed into the proportionality test in an appropriate way. This can be provided, thanks to a second step, namely labelling in law the actions digital operators take as sanctions. Sanctions are the reactions organised by digital operators to bring back social order on the platforms. The labelling of these reactions under the legal category of “sanctions” offers a meaningful tool for thinking about what digital operators do when they manage colliding rights by blocking or withdrawing contents and/or accounts. As different types of sanctions can be distinguished, differentiated legal consequences, especially in relation to managing colliding rights, can be identified. Here the role played by the proportionality test can be distinguished depending on the type of sanctions.
In any case, for sanctions and proportionality to help address colliding rights on the modern public square, a discursive framework needs to be developed, which depends on the existence of relevant meaningful communities engaging in reflecting on the use of sanctions and proportionality.
From a comparative perspective the Covid-19 pandemic provides a unique grand-scale life experience: nearly all countries have been confronted with a similar issue, that of quickly fighting the pandemic, balancing individual health with the sustainability of the national health system, and juggling economic imperatives with the duty to care for the most vulnerable individuals in society. Access and use of data are key to this difficult balancing exercise. One question arises: is the Covid-19 pandemic conducive to developing shared legal strategies or does it reinforce cultural legal features when it comes to data protection?
Blogdroiteuropeen asked experts in data protection to reflect on key developments in their national systems. No definitive answer is possible as Covid-19 is not over yet. However, this preliminary information leads to the identification of six trends underlying the Covid-19 crisis and its impact on data protection. First, all countries were not equal before the pandemic due to differences in their factual and legal backgrounds. Secondly, constitutional techniques proved resilient to a large extent in general and in particular when it comes to data protection. Thirdly, the effectiveness of data protection legislation is connected to its embeddedness in the wider legal context. Fourthly, tracking the spread of Covid-19 through tracing apps may turn out to be a unicorn defeated by data protection even though different technologies have been attempted. Fifthly, aggregation of data or collective harvesting of data in some form has been implemented to very different extents, provided some data protection requirements are met. This leads to the final trend: the ever more articulated pressure on the European Union to decide how far it wants to reclaim its digital sovereignty, and what this would entail concretely. As legal systems may have to cope with the long-term consequences of Covid-19 all over the world it may be useful to take stock of these emerging trends before designing any grand scheme for post-Covid-19 society.