This thesis analyses the concerns a public pension fund faces when choosing the best organizational structure to provide its public services. Furthermore it is examined how the public procurement law affects the choice of organizational structure due to the uncertainty contracting authorities have when applying the public procurement rules to real life contracts. The problem is elucidated both by an economic and legal view. The economic analysis contains two theories; the transaction cost theory and the principal agent theory. The transaction cost theory focuses on which governance structure is the most suitable given the conditions the contracting authority faces. In the case with a pension fund the best structure, given the level of frequency of the transactions and the asset specific investments, will be to hire external investment managers and use trilateral governance structure. The principal agent theory takes a closer look on how the contract between the pension fund and an external investment manager can reduce the interest conflicts in the contractual relationship and a efficient contract is deduced from the theory. The efficient contract consists of both a variable payment dependent on the return of the investments and a secure payment. The legal analysis contains a discussion of the classification of the efficient contract found from the economic theory in the public procurement law. The discussion is based on a review of the jurisprudence on service concession contracts in the EU and highlights differences between service concessions and public service contracts. The efficient contract is found not to transfer an amount of risk large enough from the contracting authority to the service provider to constitute a service concession. The integrated discussion combines the two prior analysis’ and explains how the uncertainty related to the application of the public procurement rules increases the contracting authority’s transaction costs. This leads to a change in governance structure and a societal efficiency loss. It is therefore suggested to exempt investment management contracts from the public sector directive to allow public pension funds to use the optimal governance structure and increase the total welfare for the society.
|Educations||MSc in Commercial Law, (Graduate Programme) Final Thesis|
|Number of pages||82|