Regulatory impositions posed upon strategic actions of publicly and privately owned water companies, in respectively the Netherlands and England and Wales


Regulatory impositions posed upon strategic actions of publicly and privately owned water companies, in respectively the Netherlands and England and Wales

Schouten, Marco A.C. and Meine Pieter van Dijk

2005

http://www.univ-paris8.fr/colloques/SIG/article.php3?id_article=77

International Symposium – 29-30 September 2005, University of Paris VIII – Saint Denis : “Competition and stakes in the regulation of services of general interest. Feedback of the last twenty years”

Regulatory impositions posed upon strategic actions of publicly and privately owned water companies, in respectively the Netherlands and England and Wales

Authors

Schouten, Marco A.C. and Meine Pieter van Dijk, both authors work at UNESCO-IHE, The Institute for Water Education located in Delft, the Netherlands

Summary

The aim of this paper is to research to what extent regulatory regimes constrain publicly and privately owned water companies to pursue strategic actions of their choice. Use was made of a theoretical framework based on Boyne and Walker that categorizes strategic actions into five categories : markets, services, price, internal and external organisation. The regulatory impositions on each of these strategic actions were subsequently assessed for the regulatory regimes of England and Wales and the Netherlands.

Introduction

There is a lot at stake in the provision of drinking water. Apart from people’s primary concern on the quantity and quality of tapped water, the water industry is riven with externalities (Glaister, 1996 ; Jeffery, 1994). Since the stakes are high and the distribution system is inevitably monopolistic, regulatory regimes are imposed to remedy the lack of self-regulating market mechanisms (Wills-Johnson et al., 2003 ; Robinson, 1997 ; Carney, 1990). The aim of this paper is to research the regulatory impositions on public and private water companies in respectively the Netherlands and England and Wales, and their impact on formulating and pursuing strategic actions. The sector specific and regulatory constraints may hinder them to realize the assumed benefits of private sector involvement (Brown and Iverson, 2004 ; Jeffery, 1990). For example, in the UK just three years before the privatisation of the water companies, the White Paper on Water Privatization (CMnd 9734, 1986) concluded :

Private enterprise is both more flexible and readier to pursue energetic and innovative approaches than the public sector. The demands of the market will give management and staff the impetus they need to secure greater efficiency. Freeing the authorities from the constraints imposed by state ownership will help them to carry out their tasks with vigour and imagination (para 38).

The truth of such statements has been debated for a long time (Van Dijk, 2004). The inability to find an answer is largely due to the absence of clear convincing empirical evidence. Difficulties in standardizing benchmarking indicators have hindered useful cross-company comparisons (Robinson, 1997 ; Ogden, 1995). Moreover, the unique character of the water sector prevents that theories from other sectors can be generalised (Bush and Sinclair, 1991 ; Bahaee, 1992 ; Ward et al., 1995).

One among the many changes that private sector is assumed to bring about, is that private parties select differently their strategic actions. This is the assumed change we want to address in this paper. The relevance of strategic management to the water sector was confirmed by a survey among 248 water utilities (Sisson, 1992). Although he does not make a distinction between public and private companies, Sisson recognises that water utilities that are experiencing higher levels of competition, are more likely to have implemented a formal strategic planning process (see figure 1) :

Figure 1 : Perceived levels of competition and formal strategic planning (Sisson, 1992)

Our theoretical framework

An essential condition to study strategic behaviour of various types of water companies is an analysis of the regulatory constraints for water companies. Researchers have noted that different institutional environmental circumstances may be conducive to certain strategic actions (Desarbo et al., 2005). The concept of ‘strategic actions’ is interpreted by using a classification developed by Boyne and Walker (2002) that was tailored specifically for public service organisations. They identify five strategic actions :

  1. Markets – Which clients does the company want to serve ? Although the primary scope of water companies is severely constrained due to the monopolistic character of the distribution network, they are sometimes able to seek market entry or exit.
  2. Services – Which products or services does the company want to offer ? Water companies can provide products or services other than water, or water of different qualities. Services could include affiliated services as sewerage, but can extend to any service that the water companies might see as a valuable endeavour.
  3. Price – What price does the company want to charge the clients for the service ? A major part of the strategy focus of any organisation is ensuring that they have sufficient revenues to compensate the costs, by charging a price for their service provision.
  4. These three strategic actions have a large similarity with the generic strategies of focus, differentiation, and cost leadership, as defined by Porter (1980). Boyne and Walker (2002) propose to add two other strategic actions because of the constraints that public organisations may face in altering the selection of markets, services or prices. The strategic challenge for many managers in the public realm is to find better ways to deliver existing services in a fixed market with limited revenues. Therefore two additional types of strategic actions are :

  5. Internal organisation – How to structure the internal organisation ? These strategic actions refer to variables such as shaping the organisational structure, culture or style of leaderships, the strategic planning process, and the adoption of performance measurement systems.
  6. External organisation – How to interact with external parties ? These arrangements may include collaboration, networks, consortia or joint ventures, partnerships and outsourcing services to private or non-profit providers.

Based upon this categorisation the following framework is established (see table 1). We selected England and Wales to represent the private companies and the Netherlands as representative sample for the public water companies, as they are both homogenously organized and have comparable economic, social and cultural conditions.

Table 1 : Research framework Strategic Actions and Ownership

Regulatory regime on

Private water companies

(England and Wales)

Public water companies

(The Netherlands)

Regulatory Opportunities

Regulatory Constraints

Regulatory Opportunities

Regulatory Constraints

Strategic Actions

Market

Services

Price

Internal organization

External organization

Applying the framework to the regulatory regimes

For each of the five identified strategic actions, an analysis is made to what extent regulatory bodies of respectively England and Wales, and the Netherlands constrain or provide opportunities to water providers.

Strategic Action 1 : Markets

Which clients does the company want to serve ? We identified several strategic market actions a water company can pursue :

  1. Market exit ;
  2. Bulk supply ;
  3. Common carriage ;
  4. Inset appointments ;
  5. Unregulated supply ;
  6. Mergers and acquisitions within the country ;
  7. Mergers and acquisitions outside of the country.

Let us now look at each of these strategic market actions and how they are constrained by the regulatory regimes in England and Wales, and in the Netherlands.

Market exit

England and Wales : There is no possibility for the water companies for market exit, as the water companies have been licensed in 1989 for a period of at least 25 years to be water undertakers for specific geographical regions across England and Wales. However, they do not have exclusive rights and they are not considered as legalised monopolies (Nickson and Muscoe, 2004). The license of the statutory undertaker can be terminated (condition O of the license agreement), although with a ten-year notice. Moreover, the possibility for market exit is further reduced by the Water Industry Act of 1999 that removed the companies’ power to disconnect customers for non-payment of charges. In 2003 over 4.4 million households are in arrears and 3 in 100 never pay at all, causing a bad debt to the water companies of 130 million English pounds annually.

The Netherlands : The Dutch water companies have just like in England and Wales received the obligation to serve the customers located within the assigned monopoly region. In the Netherlands this is based upon 30-years concession contracts. In contrary to England and Wales, the Dutch domestic consumers do not have the possibility to select a water company of their choosing. They are ‘tied’ to their water companies, but can be disconnected for non-payment, providing that the company by-laws allow it.

Bulk supply

England and Wales. In bulk supply, one water company sells an amount of water to a neighbouring company. Bulk supply is widely practiced in the British water industry (Booker, 1994). As an inter-company trade, these arrangement are negotiated between the two companies themselves and regulation is not interfering, providing that the water resources are not negatively affected and the customers are not negatively implicated. Only in case of dispute between the two companies, OFWAT can intervene and determine the tariff for bulk water (Jeffery, 1990).

The Netherlands : Also in Netherlands, water companies sell bulk-water to each other. This is done through inter-company arrangements that are not regulated.

Common carriage

England and Wales : Bulk supply becomes common carriage when the seller becomes the retailer to selected customers in the buyers’ area. Common carriage is based on the insistence of the regulator OFWAT that operators should grant access to their facilities under certain terms (the access code). The guiding principle in England and Wales is that each individual customer is entitled to receive water for domestic purposes from any water company, irrespective of where they live. Although common carriage is an interesting concept, in reality such sharing of facilities runs into severe quality and hygienic complications and has not occurred yet. It is estimated that the market for common carriage is to be around 250 million pounds, relatively small compared to the regulated revenues over 7 billion pounds of the existing water companies (Nickson and Muscoe, 2004). Still, if water companies refuse access to their facilities to entrants without an objective justification or they are offering access on unreasonable terms, they risk infringement of Competition Act 1998.

The Netherlands : Dutch domestic customers do not have the right to receive water services from a water company of their choosing. They are restricted to use their current monopoly service provider.

Inset appointments

England and Wales : Another possibility for a water company to enter the market of another English or Welsh water company is by using the mechanism of inset appointments, as allowed and promoted by the regulator OFWAT based on the Competition and Services (Utilities) Act of 1992. In that case an interested water company could apply at OFWAT to serve (groups of) clients that lie within another operators’ monopoly supply area, without using the infrastructure of the incumbent operator. These inset appointments are limited to large clients that use more than 100 mega litres of water per year or to sites that are not yet served (green fields). Although the possibility of water companies to make use of inset appointment is available for almost more than 10 years, it has been relatively unsuccessful. Only 9 insets have been approved to date (Nickson and Muscoe, 2004).

The Netherlands : Dutch water companies are also allowed to use a mechanism similar to inset appointments. A Dutch drinking water company is allowed according to the regulations to compete for so-called ‘footloose’ customers, being large-scale customers that use water as a means of production. In 2000 the Dutch cabinet has decided by instating the Water Supply Act (Waterleidingwet) to protect public drinking water companies in the short run by forbidding privatisation as far as ‘tied’ customers are concerned, being households and small industries. But the Water Supply Act opens the market for all other uses, being the ‘footloose’ customers. Just like in England and Wales, companies that consume more than 100 mega litres of water per year are allowed to choose from which company they buy their water (Kuks, 2005).

Unregulated supply

England and Wales : Another possibility for a water company to get a new customer in England and Wales is by starting to supply one of the 300,000 customers that currently rely on unregulated supply. Unregulated supply refers to the 50,000 private very small companies that supply water for domestic purposes to that group. Most (75%) of these companies are single dwellings (Memon and Butler, 2003).

The Netherlands : The numbers of potential customers due to unregulated supply is far less in the Netherlands as the vast majority of the consumers is already connected. However, in the Netherlands water companies can also make use of this possibility to add to their customers base by connecting those that are not already connected to another water company. Just like the large consumers discussed under the inset appointments these unregulated users are considered ‘footloose customers’.

Mergers and acquisitions within the country

England and Wales : In theory, each of the 24 water companies can be bought and sold like any other company (Nickson and Muscoe, 2004). Proposals for change of ownership have to be referred to OFWAT as the Competition and Services Act clearly states provisions for replacing an appointed undertaker. A recent ruling of the court in the case of Welsh Water insisted that a change of ownership of an established water company should go by a system of competitive bids (Pielen et al., 2004). OFWAT is not supportive towards any more mergers, as a further reduction in the number of companies affects its ability to make comparisons between companies (Byatt, 1993 ; Carney, 1990). The Water Industry Act of 1991 requires that the Competition Commission will be asked for approval if the gross assets of each of the water companies to be merged exceed an amount of 44 million euro. The latest addition in the regulation is the Competition Act from 1998. This act outlaws any agreements that (may) have a damaging effect on competition. The Act prohibits agreements between water companies that intend or actively prevent, restrict or distort competition, and also forbids conduct that amounts to the abuse of a dominant position in a market that may affect competition. Also European restrictions on merging are in place in case the combined aggregate turnover of all the undertakings concerned is more than 5 billion euro.

The Netherlands : the Dutch water companies have the ability to merge with or acquire other Dutch water companies, often even promoted by the regulatory bodies. The Dutch water companies have made extensive use of this strategic action, in line with the long series of mergers since half a century. In 1980 there were about 100 companies of which currently just 16 are left (VEWIN, 2003). Supervisory bodies regarded favourably the mergers as they considered a minimum size requirement of 100,000 connections for supply companies to achieve economies of scale (Kuks, 2005).

Mergers and acquisitions outside of the country

England and Wales : With certain exceptions, the regulatory provisions do not apply to business activities of the water companies that are not connected with carrying out their water services in the assigned service area (Jeffery, 1990). To protected the water customers in the assigned monopoly area from losses which could be incurred by other companies within the group, the regulator OFWAT sees to it that there is no cross subsidizing between the core business to other companies (Byatt, 1993). Consequently, the basic organisation of each company is (Carney, M, 1990) shaped as in illustrated in figure 2 :

Figure 2 : Basic organisation of each water company in England and Wales

The Netherlands : The regulatory environment in the Netherlands discourages water companies to engage into adventures outside the Netherlands. Also company by-laws often do not permit operators to expand their activities beyond the service area, using the argument that the revenues received from the local Dutch customers, should only be used for these local Dutch customers, and not be spent on possibly risky business opportunities outside of the country (Blokland, Braadbaart and Schwartz, 1999).

Strategic Action 2 : Services

Which products or services does the company want to offer ? This strategic action concerns the impositions regulatory regimes put on :

  1. The core business of the delivery of water to the assigned monopoly area, and
  2. Other non-core activities to the client group that is already served.

Core-business of water

England and Wales : According to the Water Industry Act of 1991, water companies cannot escape their statutory duty to deliver “wholesome” water to their assigned monopoly area. “Wholesome” is defined by reference to microbiological and chemical standards and other requirements set out in the Water Supply Regulations of 1989 and 2000. Section 70 of the Water Industry Act specifically makes it a criminal offence for a water company to supply water that is unsuited for human consumption.

If a water operator would try to escape their statutory duties, the economic regulator OFWAT has the ability to issue an Enforcement Order. If a company does not comply with the order, OFWAT can ask the High Court to appoint a special administrator to run the company until arrangements can be made for a new company to take over.

The Netherlands : Just like the English and Welsh companies, the Dutch water companies are forced to provide “wholesome” water to their assigned monopoly areas. “Wholesome” is in the Netherlands defined by standards set by the Ministry of Housing, Spatial Planning and Environment. Inspectors from this Ministry supervise the quality of the drinking water produced, although recently the inspections have been replaced by trust complemented by inspection (Van Dijk et al., 2004).

Non-core activities

England and Wales : Many water companies have diversified into non-water activities. Just like for adventures abroad, these non-core activities are excluded from the regulatory regimes, although cross-subsidization is prohibited. In view of the popularity to diversify, the regulators are facing a dilemma since diversification of services has meant that companies are increasingly using their core skills and management time on diversification activities. This cannot always be expressed in a price and cross subsidization mechanism (Booker, 1994).

The Netherlands. The strategic choice to supply non-water services is constraint by regulatory impositions. The Dutch regulators are pursuing a policy of bringing all the activities of public sector organisations that may find them selves competing with market players or market activities into a legally financially and organisationally independent unit. This means that there is little choice for traditional water companies to transfer their activities other than water supply to a separate company. By dividing their assets in this way they can prevent the business risks associated with their commercial activities being passed on to their tied customers (Kuks, 2005). Company by-laws also often do not permit operators to expand their activities beyond the core business of water (Blokland, Braadbaart and Schwartz, 1999). On the other hand, the Dutch have adopted as official policy to pursue cooperation between water managers, municipalities and drinking water companies with a view of making use of environmental opportunities and increasing efficiency (V&W, 1998). Experiments are launched as water chain companies being set up to bring together the expertise needed to serve industrial companies and are geared to managing the complete company chain. However, they do not have a multi utility character (Kuks, 2005).

Strategic Action 3 : Price

What price does the company want to charge clients for the service ?

England and Wales : the economic regulator OFWAT strictly regulates the price setting of the drinking water since the Competition and Service Act was passed in 1992. OFWAT sets the allowable price (also known as the K-factor) based upon the so-called price-cap mechanism that the companies are obliged to follow. Every five years K is calculated, taking account of general retail price inflation as well as results from the yardstick competition that OFWAT is conducting. Since K is applied to a basket of regulated charges, covering both measured and unmeasured water and sewerage charges, as well as trade effluent charges ; each company still has the ability to increase or decrease average charges for individual “basket items”. Another regulatory measure affecting the strategic price actions is the clause in the Water Industry Act of 1999 that limited the circumstances in which companies can compulsory meter customers.

The Netherlands : In the Netherlands the water tariff is set by the company itself. The only regulation enforced upon the tariff is the control of the shareholders to which the tariff needs to be proposed, although even that depends on the company bylaws. Since these shareholders are public entities such as municipalities or provinces, the Dutch regulatory system assumes this is sufficient to maintain a level of equity and affordability. In the Netherlands there are not limits to compulsory meter water customers, although company by-laws could put constraints.

Strategic Action 4 : Internal organisation

Howto structure the internal organisation ? This strategic action focuses on internal organizational arrangements for service provision

England and Wales : The English and Welsh companies have complete management control, although they need to consider specific regulatory provisions as for example the Guaranteed Standard Scheme (GSS), which contains information on customers’ rights (including compensation for supply interruptions). Yardstick competition is an important feature of the industry. Yardstick competition is not only useful in respect to determining the price cap but also is intended to work as a motivation to improve performance. Participation in the yardstick comparison is compulsory (Robinson, 1997).

The Netherlands : Just as the English and Welsh water companies, the Dutch public limited companies have complete managerial autonomy, although the company bylaws limit the manager in its freedom of operations. For the organisation of the drinking water supply service, most of the Dutch drinking water companies have embraced a system of voluntary benchmarking since 1997, looking at four aspects : drinking water supply, cost efficiency, environmental performance and service performance. The objective of this benchmark is to increase the transparency of the drinking water companies’ performance and to provide an instrument that can improve the company processes. There are discussions ongoing to make this system mandatory but until now still participation in the benchmark organised by the association of drinking water companies VEWIN is on a voluntary basis.

Strategic Action 5 : External organisation

How to interact with external parties ? External organisation refers to the inter-organisational relationships through which many organisations provide services. A distinction can be made between :

  1. The relation with the “supplier” of raw water ;
  2. The relation with the suppliers of subcontracts and other materials.

The relation with the “supplier” of raw water

England and Wales : the Environmental Agency mandated by the Environmental Act of 1995, monitors continuously the amount of environmental pollution generated by the water companies including their effect on the water resources due to abstraction. To abstract water, companies need to apply for a time limited abstraction licence that is issued by the Environmental Agency. In case a licensed abstraction causes damage or loss to anyone, the person has the right to seek financial compensation from the abstractor. Moreover, water companies are obliged to submit water resource plans each year to the Environment Agency.

The Netherlands : The water company is dependent on receiving a license to extract groundwater. The Province issues these licenses. Moreover water companies need to pay an abstraction charge of about 34 cents/m3. As the regulatory bodies want to discourage the use of groundwater, there is rebate of 28.5 centrs/m3 in case surface water is injected into the groundwater prior to injection (Van Dijk et al., 2004).

The relation with the suppliers of subcontracts and other materials.

England and Wales : For engaging external parties, the Utility Contract Regulations dating from 1996 regulate the procurement in the water sector and other utility industries. On the basis of this regulation OFWAT monitors companies’ use of associates for subcontracting, e.g. Construction and maintenance work. Contracting out is an important part of the water industry in England and especially Wales. OFWAT regulates the inter-water company trade.

The Netherlands : Just like in England and Wales, the Dutch water companies have to comply with procurement rules for tendering and bidding as formulated by the European Commission.

Conclusion

Since different institutional circumstances may be conducive to strategies, the results of the research provide a first step in answering the question to what extent privately owned water companies have a different strategy compared to publicly owned water companies. An answer to this question is highly relevant as there is no clear convincing empirical evidence in the water industry that private sector involvement is beneficial. As it is not foreseen that this empirical evidence can be produced due to the difficulties in inter company comparisons in the water sector, the need to assess a possible difference in behaviour between privately and publicly owned water companies, becomes more urgent.

>From the analysis, we can conclude that the major difference between the regulatory regimes is in the conceptualisation. The English and Welsh conceptualise that each individual domestic or industrial customer is entitled to receive water from any water company, irrespective of where they live, is markedly different from the Dutch stance. The Dutch approach of dividing between ‘tied’ and ‘footloose’ customers, brings with it that the water companies are for a large area of their activities constrained.

The English and Welsh stance opens opportunities to engage into a range of strategic actions to compete for customers inside and outside of their assigned primary area of supply. One could argue that the English and Welsh principle of freedom of choice weakens the relation between the ‘tied’ customer and the water company. Possibly in that light, the regulator has tried to compensate this by being stricter on the setting of the price with the prescriptive price cap regime and the impossibility to disconnect, as compared to the Netherlands.

Another major difference between the two regimes is how each of the regulatory regimes deal with mergers and acquisitions. The regulator is lenient for English and Welsh companies if the ownership goes from one private owner to another, or even if the water company starts to buy or merge with water companies outside of English and Welsh. On the other hand the regulator is strongly constraining the possibilities for a water company to merge within another English or Welsh water company. In the Dutch case it seems to be just the other way round. The regulator has facilitated mergers within the Netherlands actively for the last decades, but shifts in ownership are tightly regulated. The Dutch water companies are very much discouraged, or even prevented to endorse a merger or take-over of a foreign company. The same negative attitude of the Dutch regulatory regime is applicable for the provision of non-water services. Often you see, that the company by-laws prevents such undertakings. The English and Welsh regulator is staying outside of the diversified businesses of the water companies, although the regulator prohibits any cross-subsidisation from its water business.

Combining the analysis of all the five strategic actions two interesting observations can be made :

  1. The regulators in England and Wales and the Netherlands steer the strategic actions of the companies in different directions. One could generalise that the regulator of the privately owned companies provides more freedom to engage into strategic market and service actions. More provisions are made by the English and Welsh regulator for water companies to search for customers elsewhere and other services. Possibly to remedy any potential conflict with the ‘tied’ customers, the English and Welsh regulator is imposing more on the strategic price actions the company could engage in, as compared to the Dutch regulatory regime.
  2. The differences in the impositions between the regulators of publicly and privately owned companies are relatively small. The degree of freedom allowed by the regulatory regimes for public and private companies to strategise their internal and external organisation is similar. Moreover, although the regulatory regime of the private companies allows more freedom to engage into finding new customers or offering other services, this is severely constrained by the typical characteristics of the water sector. For example the potential for options as common carriage, inset appointments or unregulated supply is only marginal compared to the total market.

As a conclusion, one might hypothesise that if there is a difference found between the strategic behaviour of privately and publicly owned water companies it will be very hard to insist that that is only due to the different regulatory regimes. So, if future research concludes that private parties indeed select differently their strategic actions than public water companies, our paper defends that at least part of that difference should be ascribed to the different ownership structure.

Annex 1 :

Table : Completed Research framework Strategic Actions and Ownership

Regulatory regime on

Private water companies

(England and Wales)

Public water companies

(The Netherlands)

Regulatory Opportunities

Regulatory Constraints

Regulatory Opportunities

Regulatory Constraints

Strategic Actions

Market

*No exclusive rights of incumbents.

*Bulk supply.

*Common carriage

*Inset appointments.

*Unregulated supply

*Change ownership.

*Activities outside of E&W

*Bound to assigned population.

*Cannot disconnect.

*Mergers inside E&W.

*Bulk supply.

*Inset appointments.

*Unregulated supply.

*Mergers inside NL.

*Bound to assigned population.

*Exclusive rights of incumbents.

*Change ownership.

*Activities outside of NL.

Services

*Differentiation

*Bound to supply wholesome water.

*No cross-subsidisation.

*Bound to supply wholesome water.

*Separate other activities from water.

*Often prohibited by by-laws.

Revenues

*Appeal to tariff setting by OFWAT.

*Indirect influence through negotiations and participating in yardstick.

*Price cap regime.

*Limitations to compulsory metering.

*Company sets itself the tariff individually.

*No limits to compulsory metering.

*Approval of shareholders

Internal organization

*Each company has complete management control.

*Acknowledge customer rights.

*Compulsory yardstick participation.

*Each company has complete management control.

*Voluntary benchmarking.

External organization

*Abstraction licenses.

*Submit water resource plans.

*Procurement rules for tendering.

*Abstraction licenses *Procurement rules for tendering.

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