Alternative Accountability Mechanisms Research Articles

Good Governance in the Development of Network Codes for the EU Internal Electricity Market

This article aims to contribute to the further development of the governance structure of the internal energy market by evaluating the process of the development of network codes, that is, the technical rules governing access to – and functioning of the cross border electricity grid, against principles of good governance. It finds that the governance structure does not sufficiently ensure responsiveness to stakeholder input. This is due to a lack of legal accountability mechanisms, which are only insufficiently complemented by means of political-, social-, vertical administrative- and peer-accountability. Legal accountability mechanisms are insufficient to guarantee adequate responsiveness to stakeholder input, due to rigid standing criteria for direct actions at the European Court of Justice against network codes adopted as delegated acts by the Commission. Moreover, there is insufficient possibility of judicial review as regards the roles of various network members in the development of network codes, in particular regarding soft law instruments used by ACER and ENTSO-E. Hence, their factual influence on the technical rules adopted as network codes is not appropriately met by legal accountability mechanisms that would ensure their stakeholder responsiveness. While current means of political-, social-, vertical administrativeand peer-accountability may improve responsiveness to stakeholder input, a thorough analysis of the network code development process shows that they are too weak to meet a level as required by principles of good governance. This lack of accountability also leads to a lack of participation and openness. This article argues that alternative accountability mechanisms need to be strengthened in a way that adapts the present system of accountability mechanisms to the flexible means of exercising authority through network governance. In particular, it advocates a greater role for stakeholder committees as well as ACER in the development of network codes.

Peacebuilding, the Rule of Law and the Duty to Prosecute: What Role Remains for Amnesties?

Since its inception, the central dilemmas of transitional justice have often been framed in stark dichotomies, encapsulated most notably in the phrase: ‘peace versus justice’. Within this debate, amnesty laws enacted as part of negotiated peace were often intended to create permanent barriers to the pursuit of trials for past crimes. This perception of amnesty laws as a once-only political pact to close the door on the past is understandable. However, as this paper will argue, closer inspection reveals that transitional states rarely face a binary choice between amnesty and justice. Instead, the salience of calls for amnesty or trials often wax and wane depending on the changing political circumstances and the relevance of practical concerns such as the passage of time, the degradation of evidence and the mortality of victims, witnesses and perpetrators. Drawing upon fieldwork conducted by the author in Argentina, Bosnia-Herzegovina, Uganda, South Africa and Uruguay, together with the experiences of amnesties in Cambodia, Sierra Leone and Timor-Leste, the paper will detail how trials have been launched in the shadow of pre-existing amnesties, and conversely, how demands for amnesty may continue or reignite following prosecutions by national or international courts. In this way, the paper seeks to highlight that neither trials nor amnesty laws definitively close the door on the past and instead many societies continue to revisit and adapt their processes in response to changing political contexts. By exploring these sequencing relationships, this paper will highlight two key findings: firstly, that even where trials are pursued, demands for amnesty or immunity may continue to be made. Although in some cases, these demands may seek to undermine transitional justice agendas, in other instances, they could seek to respond to the problems faced by over-burdened criminal justice institutions by incentivising offender testimony or encouraging offender participation in alternative accountability mechanisms. The second finding is that the more egregious forms of amnesty that offer unconditional impunity for serious human rights violations may not be fully sustainable in the longer-term, and may instead face judicial challenges to narrow their scope or invalidate them entirely. The implications of these two findings point towards the development of more nuanced approaches to amnesty laws that incorporate elements of accountability and may even coexist with some form of criminal prosecutions. The final section of this paper will explore how such coexistence can be written into the text of the amnesty laws.

EU Electricity Network Codes: Good Governance in a Network of Networks

This paper aims at contributing to the further development of the governance structure of the internal energy market by evaluating the process of the development of network codes, that is, the technical rules governing access to – and functioning of the cross border electricity grid, against principles of good governance. It finds that the governance structure does not sufficiently ensure responsiveness to stakeholder input. This is due to a lack of legal accountability mechanisms, which are only insufficiently complemented by means of political- , social-, vertical administrative- and peer-accountability. Legal accountability mechanisms are insufficient to guarantee adequate responsiveness to stakeholder input, due to rigid standing criteria for direct actions at the European Court of Justice against network codes adopted as delegated acts by the Commission. Moreover, there is insufficient possibility of judicial review as regards the roles of various network members in the development of network codes, in particular regarding soft law instruments used by ACER and ENTSO-E. Hence, their factual influence on the technical rules adopted as network codes is not appropriately met by legal accountability mechanisms that would ensure their stakeholder responsiveness. While current means of political-, social-, vertical administrative- and peer-accountability may improve responsiveness to stakeholder input, a thorough analysis of the network code development process shows that they are too weak to meet a level as required by principles of good governance. This lack of accountability also leads to a lack of participation and openness. The paper argues that alternative accountability mechanisms need to be strengthened in a way that adapts the present system of accountability mechanisms to the flexible means of exercising authority through network governance. In particular, it advocates a greater role for stakeholder committees as well as ACER in the development of network codes.

Accountability’s Effect: Reaction Speed and Legitimacy in Global Governance

This article examines whether and how accountability in international organizations (IOs) influences their speed of reaction to economic and humanitarian crises. Reaction speed is one among several factors in the capacity of IOs to handle crisis-like problems and, therefore, also a factor in their capacity to create legitimacy for themselves. Original theoretical arguments and statistical survival analyses of the time it takes for IOs to react to crises confirm that accountability in IOs indeed affects reaction speed. However, the effect varies depending on the use of alternative accountability mechanisms. Transparency speeds up reactions while stakeholder participation slows them down. More generally, this article identifies synergies, trade-offs, and nonlinear relationships between reaction speed and different accountability mechanisms that should be reflected in debates on legitimacy in global governance as well as in the institutional design of legitimate IOs.

Can an Old Dog Learn New Tricks? Applying Traditional Corporate Law Principles to New Social Enterprise Legislation

Seven U.S. states have recently adopted the benefit corporation or the flexible purpose corporation — two novel corporate forms intended to house social enterprises, i.e., those ventures that pursue social and environmental missions along with profits. And yet, these corporate forms are not viable or sustainable if they do not attract social entrepreneurs or social investors due to the lack of understanding and inquiry into how traditional corporate law principles will be applied to them. This Article begins this necessary examination. As a first approach, this article assesses shareholder primacy and the shareholder wealth maximization norm in the context of the sale of an early-stage flexible purpose corporation. As the market for products and services produced by social enterprises grows, traditional “profit-maximizing” corporations, which may have given limited attention to their social or environmental outputs in the past, want a piece of this market share and can make a rapid market entrance by acquiring an established social enterprise. Using the lens of a corporate acquisition, this article argues that the shareholder wealth maximization norm must be rejected for flexible purpose corporations given the statute’s legislative history and a contractarian view of shareholder primacy where shareholders’ interests are both economic and non-economic. Nonetheless, rejection of the norm leaves a gap in directors’ accountability to shareholders. This article examines alternative accountability mechanisms, including employing a heightened standard of review to the sale of flexible purpose corporations.

Beyond Regulation: A Comparative Look at State-Centric Corporate Social Responsibility and the Law in China

Corporate social responsibility (CSR) is often understood as voluntary actions firms take beyond legal compliance. However, in recent years, governments around the world have also begun to actively promote CSR, reflecting broader governance trends that embrace “soft law,” voluntary standards, and other novel incentive structures to move companies toward and beyond minimum regulatory goals. Comparative legal scholarship has only recently begun to consider the intersections of such mechanisms with positive law, formal institutions, and traditional regulatory enforcement structures. The adoption of these policies in historically weak regulatory environments raises particularly puzzling questions about their motivation, scope, and potential. As a leader among emerging markets, China offers an important context to consider state CSR policies and the role of alternative regulatory tools in legal implementation. This article adopts a comparative perspective to examine how national and subnational governments in China advance CSR. Based on primary interview data, it develops a state-centric model of corporate social responsibility that contrasts with both the market-based model adopted by U.S. governments and the relational model advanced by European Union member states. This article concludes by considering the implications of state-centric corporate social responsibility initiatives for norm creation and legal implementation. It contributes to the growing comparative literature on the role of governments in advancing CSR and to the regulatory literature examining the intersections of law and alternative accountability mechanisms in shaping corporate behavior.

Post-Conflict Accountability and the Demands of Justice: Can Conditional Amnesties Take the Place of Criminal Prosecutions?

When justice campaigners formulate aims and expectations for post-conflict justice, criminal prosecutions of the persons responsible for human rights violations and for politically motivated crimes are often given pride of place. Criminal trials in the aftermath of violent conflict and political suppression are intended to hold individuals accountable for horrific injuries they inflicted on their fellow citizens. And often enough, trials do succeed in this ambition, at least in respect of the (often comparatively few) accused brought before the courts. Against this background, it is easy to lose sight of the fact that post-conflict trials are not ends-in-themselves. The end in question is accountability – and this provides the starting point for asking whether credible alternative accountability mechanisms exist and when, if ever, such mechanisms ought to be preferred to criminal prosecutions. One alternative to prosecution, it has been argued, is the transitional amnesty implemented by the South African Truth and Reconciliation Commission between 1996 and 2001. This amnesty was available to political activists and to members of the apartheid state’s security forces, provided that an individual amnesty application was submitted within a limited period and upon full disclosure of the salient facts concerning the commission of politically motivated crimes. After reminding the reader of the extent to which this amnesty scheme was indeed capable of meeting the main tenets of accountability, the working paper reviews the manifold ways in which the experience of amnesty continues to exert its influence in South African political life. It addresses the frustrating prosecutorial aftermath of unsuccessful amnesty applications as well as the drawn-out special pardons process under way since 2002 to deal with some of the perceived shortcomings of the initial amnesty scheme. It argues that while South Africa’s amnesty law was quite rightly hailed as a blueprint for future transitions in which accountability through criminal trials cannot be ensured, the justifications put forward for this form of amnesty need to be effectively communicated in order to avoid creating a legacy of impunity which may ultimately pose a threat to democratic consolidation and the rule of law.

Beyond the Courts? The Complex Relationship of Trials and Amnesties

Since its inception, the central dilemmas of transitional justice have often been framed in stark dichotomies, encapsulated most notably in the phrase: ‘peace versus justice’. This phrase has been widely used to describe the extent to which elites in states undergoing transitions from mass violence may face political, military, and economic pressures to compromise justice in order to obtain peace. Where amnesty laws have been enacted as part of negotiated peace deals they are often perceived as embodying such compromises as they can serve to shield the signatories of peace agreements and their supporters from criminal prosecutions. Although in a small number of cases, such amnesty or immunity agreements may be granted provisionally, more commonly, they are intended to create a permanent barrier to the pursuit of trials for past crimes, where such trials would arguably risk destabilising the fragile political transition. As a result, amnesty laws to shield offenders from criminal sanctions are commonly viewed as the antithesis of trials. At first blush, this perception of amnesty laws as a once-only political pact to close the door on the past is understandable. However, as this paper will argue, closer inspection reveals that transitional states rarely face a binary choice between amnesty and justice, but rather may undergo a continual process of re-negotiation of the balance between impunity and accountability as the transition evolves. Indeed, during political transitions countries rarely follow a linear path towards justice. Instead, the salience of calls for amnesty or trials often wax and wane depending on the changing political circumstances and the relevance of practical concerns such as the passage of time, the degradation of evidence and the mortality of victims, witnesses and perpetrators. This paper will explore some of these relationships by focusing on how trials and amnesties have been sequenced within transitional states. Drawing upon fieldwork conducted by the author in Argentina, Bosnia-Herzegovina, Uganda, South Africa and Uruguay, together with the experiences of amnesties in Cambodia, Sierra Leone and Timor-Leste, the paper will detail how trials have been launched in the shadow of pre-existing amnesties, and conversely, how demands for amnesty may continue or reignite following prosecutions by national or international courts. In this way, the paper seeks to highlight that neither trials nor amnesty laws definitively close the door on the past and instead many societies continue to revisit and adapt their processes in response to changing political contexts. In some contexts, this may result in highly complex sequencing arrangements. By exploring these complexities, this paper will highlight two key findings: firstly, that even where trials are pursued, demands for amnesty or immunity may continue to be made. Although in some cases, these demands may seek to undermine transitional justice agendas, in other instances, they could seek to respond to the problems faced by over-burdened criminal justice institutions by incentivising offender testimony or encouraging offender participation in alternative accountability mechanisms. The second finding is that the more egregious forms of amnesty that offer unconditional impunity for serious human rights violations may not be fully sustainable in the longer-term, and may instead face judicial challenges to narrow their scope or invalidate them entirely. The implications of these two findings point towards the development of more nuanced approaches to amnesty laws that incorporate elements of accountability and may even coexist with some form of criminal prosecutions. The final section of this paper will explore how such coexistence can be written into the text of the amnesty laws.

Alternative Accountability Mechanisms and Mining: The Problems of Effective Impunity, Human Rights, and Agency

In the absence of a global regulatory system or international legal system to hold multinational corporations to account for their operations in weak-governance zones, a range of internationally applicable alternative accountability mechanisms have emerged under the broad rubric of corporate social responsibility. In Canada a parliamentary report initiated high-level efforts to design CSR accountability mechanisms with respect to the operations of Canadian extractive industries overseas. This paper examines whether these international and national CSR efforts provide for sanction and remedy and assure respect for human rights, and whether they support the agency of affected communities to protect values of importance to them.

Legal Accountability to a Political Forum? The European Commission, the Dutch Parliament and the Early Warning System for the Principle of Subsidiarity

This paper examines whether the Dutch parliament is adapting its behaviour in enforcing democratic accountability by using accountability enforcement techniques that are usually associated with courts. The Dutch parliament’s dialogue with the European Commission to check compliance with the principle of subsidiarity in European legislative proposals is analyzed as an empirical case study. The paper qualifies the subsidiarity procedure primarily as an instance of an accountability relationship vis-a-vis the Commission, rather than as co-legislation. It defines and accountability based on whether the criteria that an institution uses to hold actors to account refer to lawfulness (legal accountability) or desirability (political accountability). In the light of the Dutch experience, legal accountability as associated with courts can also take place in a political forum like parliament. The paper has been written as part of a larger research project designed to assess whether parliaments as traditional accountability forums can and do use alternative accountability mechanisms, i.e. mechanisms typically found outside parliament.