The Interaction between Private and Public Actors: Traditional Principles versus New Trends A Comparative Analysis

Like legislation and jurisdiction, administration, too, had its own decision-making functions and the Verwaltungsakt was vested with the task of declaring the law in concrete, individual cases (…). French and Italian legal doctrine identified those particular administrative decision-making functions through which imperium was exercised ( décisions administratives , provvedimenti amministrativi ), thereby limiting rights and liberties. This expressed the supremacy of the administration vis-à-vis private citizens. 4

1. In the traditional continental model of public administration, firstly structured in France after the 1789 Revolution, political bodies -Parliament first and foremost -strike the balance among conflicting interests present in society or, rather, choose among the conflicting social interests those that deserve to gain the upper hand. The administrative organization implements the choices made by the lawmaker in specific cases and is normally responsive to the law-maker. To this end, agencies work through adjudication processes and adopt decisions. 2. The main variable in this model depends on the limits which the law-maker is capable of providing to the administrative organization. This margin of appreciation may greatly vary in quality and extent. It may concern complex factual assessments and/or choices between conflicting interests. 3. To limit the risk of arbitrariness -potentially detrimental to both the general and individual interestthe law-maker usually lays down formal and procedural rules (i.e. the duty to have recourse to advisory opinions; the duty to give reasons) to be followed when the administration is exercising its discretionary powers.
As a contrast to the traditional model, a different model is possible, even if it is admittedly rarer and sector specific rather than general. This is a bottom-up model, in which different social actors negotiate and find mutually acceptable compromises among conflicting interests. Parliament would be content to lay down some basic engagement rules (for example, who may participate and how), and exclude or limit the negotiability of some interests (for instance, by selecting fundamental rights). The administrative organization acts as a facilitator or broker of decisions which are, to a large or lesser extent, taken by social actors. To this end, agencies may also set up a regulatory environment for social actors to come together. Thus, this paper aims to discuss how and to what extent we are facing a dichotomy between the traditional continental model and one of dialogue. The research is aimed at classifying the legal system Thus the traditional continental model, first structured after the 1789 Revolution, is mainly top-down. 3 Unilateral decisions were the tool of choice of the puissance publique: Like legislation and jurisdiction, administration, too, had its own decision-making functions and the Verwaltungsakt was vested with the task of declaring the law in concrete, individual cases (…). French and Italian legal doctrine identified those particular administrative decision-making functions through which imperium was exercised (décisions administratives, provvedimenti amministrativi), thereby limiting rights and liberties. This expressed the supremacy of the administration vis-à-vis private citizens. 4 This model could do very well without participation, and procedural rules were generally scarcely considered. In Italy, the early adoption of the Franco-Napoleonic model had considerably boosted the efficiency of the then Kingdom of Sardinia enabling it, along with deft diplomacy, to unify Italy under the Crown of Savoy. 5 By the time Law No. 241/1990 was adopted, the original pattern had lost some of its shine. Less state-centred and more bottom-up, market-friendly economies -like the Anglo-American one -were proving themselves to be far more efficient than those which, like Italy, had seen the role of the state grow and grow. Private sector techniques and assumptions have made major inroads into government via the 'new public management'. In formerly state-dominated polities like Italy, 'the autonomous institutions of civil society are being given more rein. Public private partnerships, community-based partnerships and innovative forms of service delivery abound.' 6 It is possibly not a coincidence that those legal systems share a common-law heritage. With it comes the idea of participation of those concerned by the decisions to be taken by public authorities, variously referred to as due process, audi alteram partem, or fair hearing. 7 This tradition was foreign to Italy. In 1940 Aldo M. Sandulli wrote the leading text on administrative procedure. 8 Participation was not even mentioned in the index. The input of the concerned parties was briefly discussed. That was to be the standard position in Italy. Even after Law No. 241/1990 was adopted, the Constitutional Court reiterated that the due process principle could not be read into the 1948 Constitution. 9 Only a small group of scholars who worked with Feliciano Benvenuti were ready to highlight the relevance of participation in the framework of a more bottom-up approach to administrative law. 10 The panorama has to some extent changed after the entry into force of Law No. 241/1990, which gives more space to civil society in the overall governance system, a system in which participation is one of the key instruments of democracy. 11

A first change in the Italian legal system. Law No. 241/1990 and a new role for participation:
A key instrument of democracy?
The Italian current phase of regulation is characterized by increased flexibility in the form of reduced regulatory burdens and simplified administrative procedures, allowing strong co-operation between agencies and citizens. This process has been rather slow and has been enhanced by the so-called 'Bassanini' reform (named after the Minister for Public Administration who proposed it), which included three different regulations: Before Law No. 241/1990 on administrative procedure was passed, it was held that the administration had an obligation to proceed, but not always to issue a provision. And even when it had to issue a provision, i.e. to conclude the procedure with a decision, there was no obligation to do so within a set time limit. If it failed to do so, the interested party could only give notice requiring the administration to come to a decision within a time limit of no less than thirty days, and if, at the end of this time, nothing had changed, the interested party would have to resort to an administrative judge to contest the so-called tacit rejection. 14 Even after notice had been given and the deadline had been assigned, silence equated to a dismissal of the private individual's application. That individual could bring an action against the dismissal and if the judge allowed the action (if for no other reason than that the rejection, being tacit, was without justification), he would rule that the administration should reach a decision. Often the administration would fulfil this obligation by dismissing the application which it had previously dismissed with its tacit rejection. Thus, after much expense and effort, the citizen would be left with nothing for his efforts.
Law No. 241/90 and subsequent laws that modified it have served to fill this substantial lacuna and provide safeguards in three ways. First, by stating that the proceedings must come to a conclusion within a prescribed time limit (established by law, regulation or organization norm). Second, that proceedings must conclude with the issue of an express measure (and not with silence), and third, that a delay by the administration gives the private individual the right to compensation for any unlawful harm. Law No. 241/90 radically changed the existing legal framework, devoting a whole chapter (III) to participation in administrative proceedings. According to the new rules: a. The interested party has the right to be notified of the initiation of proceedings (Article 7). b. Whether he has received such communication or not, the interested party has the right to intervene in the proceedings, presenting pleadings and documentation (Article 10 letter b). c. Having presented pleadings and documentation, the interested party has the right to have them assessed by the administration if they are pertinent to the case in hand (Article 10 cit.). d. In order to prepare the pleadings in his defence, or which in any case represent his point of view, the interested party has the right to see the files (Article 10 letter a) and, in general, to have access to the administration's documentation (Article 22 The administrative proceeding has ceased to be thought of as a place where an authoritative and unilateral decision (so-called 'provvedimento') is taken, and has become the stage of participation, that is the place where conflicting interests are weighed one against the other to find a plausible -and possibly agreeable to everyone concerned -balance. Whilst all the attention was previously placed on the provvedimento, the decision which led the general interest in the actual facts of a case and overpowered all private interests to accommodate it, the emphasis is now on the interplay between public interests and private ones during the proceedings. Openness, transparency and participation are undoubtedly the main principles to which Law No. 241/1990 refers. A provision enabling widespread participation that extends well beyond those directly concerned is Article 9 of Law No. 241/1990: 'everyone representing an interest, be it public or private, and the associations and committees representing widespread interests that could suffer harm as a result of a final decision, may take part in the procedure'. Thus, the crucial innovation introduced by Article 9 was the admission of widespread interests to participate in administrative proceedings, if they are represented either by associations or committees. This choice may be justified in order to ensure a serious and stable intervention in the procedure. 16 In any case, despite the great importance of the reform introduced by Law No. 241/1990, the form of participation laid down by the Act can be viewed as a typical example of the traditional way in which agencies make their decisions. The reasons are many. Under Article 13, the provisions on participation do not apply to rule-making and planning procedures. This implies that participation rules only apply to adjudication -i.e. the process by which the legal rights or duties of a particular person in a specific situation are defined -not to rule-making -i.e. the process by which rules or regulations of general applicability are formulated and adopted. 17 Participation in rule-making is therefore not a general principle of Italian law. 18 It is, however, a general principle adopted by a number of Italian regions, which have their own general statutes on administrative procedures. Moreover, in national law, participation is the rule for some types of rule-making procedures and for specific sectors -forms of participation are established both in statutes issued before 1990 and in statutes issued later. As for regional law, after the constitutional reform of 2001, it is still unclear to what extent Parliament may set out general rules on administrative procedures and to what extent regional parliaments (the socalled Consigli regionali) may set out different rules. It is not disputed, however, that regions may provide a general statute and that the latter can provide for the increased protection of interested parties, even in terms of increased participation; some regional statutes do, with provisions contained either in their general statutes on administrative procedure, or in other statutes. The main example is the Tuscan statute issued in 2007, which recognizes in broad terms the right to participation in regional policymaking, establishes a regional authority for the protection and promotion of these rights, requires a public debate for important projects, and sets general rules for regional rule-making and planning.
Other The reform was widely glorified in the press as a revolutionary law and contains important provisions concerning the topic of access to administrative documents and to public sector information. A Legislative Decree on transparency dated 25 May 2016, No. 97, whose aim is to implement the provision of Madia Law, has recently been passed (the Italian FOIA). 16 Thus, according to Law No. 241/1990, in principle, all parties, whether ruled under private or public law, whose interests might be affected by the decision to be taken at the end of the proceedings, may take part in it. The same applies to public interest groups, provided they have attained minimal formal organization (Art. 9). 17 As we will see, this situation is quite different from that of the US Administrative Procedure Act of 1946, where participation rules for rule-making were developed, with the aim of significantly involving civil society in the most relevant decisions. by all concerned parties, these procedures imply -as do all traditional forms of administrative proceduresa unilateral intervention by the agency in the pursuit of some interest represented as 'public' or even 'general'. Participation as defence, as well as participation as consultation are the only forms of involvement that these traditional proceedings imply.
However, in the Italian political and administrative landscape, the importance of Law No. 241/1990 must not be overlooked. It was one of the most important innovations ever introduced by national legislation in the field of public law. It is, beyond any shadow of doubt, the Act most frequently invoked by lawyers and judges in this field. Whether it contributed to imposing real changes on central and local administrators, however, remains to be seen. Evidence of its success may be seen in the opposition that administrators have constantly displayed towards it. 19 To the extent to which it introduces, or codifies, procedural constraints on the government, it strengthens the 'limitation of government by law' which is still, if not the most important part of Western constitutionalism, beyond doubt the oldest. However, when evaluating the Act, both its strengths and weaknesses ought to be considered, especially when the latter prevent the exercise of rights. In other words, the Act must not be idealized, but, rather, studied critically and, if possible, improved. 20 Hence, one may wonder if there are any examples -in the Italian legal order -of a different ('dialogue') model. Are there any hypotheses in which the agency is not enforcing overriding rules and does not impose its will, but rather acts as a facilitator or broker of decisions between disputing interests, represented by concerned parties and public interest groups, including non-governmental actors? Are there any examples of a model in which final decisions are more acceptable because they are the result of a compromise among the stakeholders rather than the imposition of an interest represented as 'public'? Situations which might incorporate elements of the dialogue model or, rather, a mix of the traditional and the dialogue model will be discussed in the following sections. In these cases, co-operation between public and private actors has become the characteristic instrument of administrative action in defining objectives as well in implementing them.
In focusing on this growing co-operation-based practice in administrative action, this paper proposes analyzing examples of administrative agreements, as introduced by Article 11, Law No. 241/1990, which are the most suitable instrument through which voluntary agreements are implemented in the environmental field. They will be analyzed as a further example of a specific sector's dialogue model, where an effective environmental policy can be formulated and put in place by a co-operation-network of actors that includes regional governments and other public authorities, individual enterprises and associations representing special interests at a local level.

The democratisation of the decision-making process in Italy. 'Administration by agreement': An example of a mixed model
The concept of administrative agreements, as introduced by Article 11 of Law No. 241/1990, undoubtedly corresponds to a new vision of the citizen-administration relationship, which is characterized less by 'supremacy' and 'hierarchy' and more by 'collaboration' and 'negotiation'. Article 11 provides that, within an administrative proceeding and under given restrictive conditions, private parties are entitled to negotiate an agreement with an administrative body. This agreement may either specify the discretionary content of the final measure (supplementary agreement) or even replace the final measure itself (substitutive agreement). 21 It seems clear that this form of supplementary agreement represents an example of a mixed model of 'traditional' and 'dialogue' approaches. In fact, despite the possibility -for the interested partiesto determine the discretionary content of the final act, this procedure always implies the authoritative and unilateral intervention by the agency in the pursuit of the general interest. In any case, the prevalence of public interest over private interest will allow the public administration to unilaterally adopt the final measure (whose discretionary content is specified by the agreement), without the private party's consensus.

The Interaction between Private and Public Actors: Traditional Principles versus New Trends A Comparative Analysis
Utrecht Law Review | Volume 14 | Issue 1, 2018 The so-called 'substitutive agreements' are quite different. In this case, the final measure is fully replaced by the agreement, which is the result of real negotiation between public administration and private parties. 22 Law No. 15/2005 deleted the clause in Article 11 allowing public administration to have recourse to substitutive agreements 'only in cases provided for by law': the possibility to enter into substitutive agreements has thus been generalized, enabling a full application of this 'negotiated' tool. The abolition of the clause has been viewed by some as a clear implementation of the principle of 'alternativeness' between private law tools and unilateral and authoritative ones. 23

Examples of voluntary agreements (VAs) in environmental policy
Co-operation and connecting procedures between actors whose interests are different or even contrasting is the basis of concerted and negotiated administration. This dialogue model is increasingly used as it meets the need to design new public functions and competencies because of the progressive democratization of decision-making processes, involving central and local public powers as well as private actors, and the pursuit of accrued efficiency. 24 A remarkable example of this can be found in environmental policy. Italian environmental policy still relies heavily on the 'command-and-control approach'. However, over time an important trend towards decentralization and flexibility has emerged. This tendency has been clear in the evolution of Italian environmental regulation from the 1970s to today and is strictly connected with the EU framework. 25 In some complex areas like the environment, European political decision makers have primarily employed traditional regulatory strategies (so-called command-and-control regulation). However, in recent years, this form of regulation has increasingly been criticized on the grounds that it is considered to be an unsuitable instrument for implementing the goals of sustainable development -the modern paradigm of environmental policy.
Therefore, a certain tendency towards the use of alternative tools, such as deregulation, negotiation and moral suasion, has emerged. This is supported by the findings of various schools of political and legal science, all observing -in the environmental field -a loss of the hierarchical authority of public authorities and a trend towards establishing multipartite policy networks composed of public and private actors. 26 Since the 1990s, in fact, the EU has been developing a new regulatory policy, which increasingly puts emphasis on the use of alternative tools that are complementary to traditional governance. These alternative instruments are often labelled with the general term of 'negotiation', 'soft law', 'self-regulation' and/or 'co-regulation'. 27 Voluntary agreements (VAs) are a typical result of these alternative forms of governance and are frequently invoked as 'better', both because they are based on the superior expertise of the actors shaping the policy measures, and because they are immediately applicable and easier to change if the need arises. Other advantages have been mentioned. For instance, VAs could lead to a 'refreshed attitude' towards regulation, evidenced by industry and government acting more co-operatively; they can also be supplementary to existing 'command-and-control' approaches, filling gaps and providing additional flexibility. 28 In  (3), which expressly states that agreements and contracts may introduce simplified administrative burdens, but cannot fail to conform to EU provisions. In Italy, some parts of the public administration are inclined to use these VAs with a certain frequency. However, if the process at regional and local level seems quite dynamic, the national level process still appears to necessitate more time to be adequately designed and implemented. Undoubtedly, to obtain a widespread and more successful recourse to VAs, the role of different groups of social actors is of crucial importance. In Italy, public administration attitudes and ways of acting have still to evolve in order to guarantee a correct and effective use of such tools. The public sector needs to develop the capabilities to understand and take into real consideration the signals from civil society. This will imply a full shift from the command-and-control mechanism and the imposition of rules, to shared action based on voluntariness and negotiation. These examples clearly show that a pure dialogue model does not yet seem to exist in Italy. Nevertheless, VAs are good examples of a compromise between the traditional and dialogue models. They can be viewed as actual proof of the evolution of the traditional model towards a different and complex dialogue approach, in which decisions are more the result of a balance among the stakeholders than the imposition of an interest represented as public. 29 For instance, this is quite clear in all instances in which local public administrations are inclined to use VAs. Among these, the Region of Emilia Romagna strongly encourages their use. 30 Other interesting examples can be found in the Regions of Lombardy 31 and Tuscany. 32 Some encouraging signals have emerged in the environmental sector which have been praised as potentially more flexible and less costly than command-and-control instruments: public authorities and private sector (a firm, a group of firms or a whole industrial sector) negotiate their commitments to some environmental quality and/or performance goals (i.e. waste recycling, air emissions, waste water, soil contamination). However, even in this sector, the evolution towards an extensive and advantageous (in terms of environmental goals) use of VAs cannot be viewed as complete. There still seems to be a limited 29  Recupero e Riciclo degli Imballaggi -National Corsortium for the recovery and recycling of packing), aimed at pursuing the implementation and development of selected collection and recycling circuits for paper and cardboard. 32 See, for example, the agreement signed on 12 September 1994 between the Region of Tuscany and Assocarta (Italian Association Paper Industry), aimed at providing a real implementation for national and regional provisions for the promotion of waste reduction and the improvement of the local public administration institutions' actions towards selected waste collection. A 'traditional model' -for the purposes of this research -can be identified in the US legal system. A political body (i.e. the Congress) strikes the balance among conflicting interests present in society; administrative organizations (i.e. agencies) implement the choices made by the legislature. These assumptions also clearly result from the American Constitution (hereinafter, the Constitution), the supreme law of the US and one of the oldest constitutions still in use. 34 The most striking feature is how extensively it implements the prevailing principle of separation of powers, which is reflected in Articles I, II and III. 35 Clear lines divide legislative, executive and judicial branches. Pursuant to Article I 'all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives'. No one branch contains absolute power; rather, each branch is balanced by the others creating a system of checks and balances to protect the principles of democracy. 36 Agencies have the primary task of implementing the choices made by Congress through adjudication and they derive their legal authority from statutes they implement. It is worth noting that American administrative law is basically procedural law, that is, the law governing the processes by which agencies make decisions or take other action, and the processes by which the wisdom and legality of the latter are reviewed by other bodies (including courts). Considerable attention is given to procedural formalities followed to make administrative decisions. The crucial point is the idea that agency action is to be founded on fair procedures quite similar to trial-type procedures. The procedural content of administrative law stems from a number of statutory sources. The foremost general source is the federal Administrative Procedure Act of 1946 (hereinafter, APA). 37 In general the APA aimed to guard against overreaching or unfair regulation by providing affected parties increased hearing and participation rights. 38 It also aimed to prevent tyranny by fortifying judicial review of administrative decisions. 39 The APA contemplates two particular forms of agency decision-making: rulemaking and adjudication. In the American legal order, as well as in most legal systems, these forms of agency decision-making represent the traditional way through which administrative decisions are made. While, on the one hand, adjudication is the process by which the legal rights or duties of a particular person in a specific situation are defined, on the other hand, rule-making is the process by which rules or regulations of general applicability are formulated and adopted. 40 These forms of public decision-making imply participation by 33 Recently, see W. D'Avanzo, Accordi volontari, partecipazione e governance ambientale (2015). This issue is also thoroughly studied -with regard to Italian environmental policy -in G. Pesaro, 'Environmental Voluntary Agreements: A New Model of Co-operation between Public and Economic Actors', FEEM Working Paper No. 9.2001, available at <https://ssrn.com/abstract=272132>, in particular p. 34: 'We could consider all these experiences as a "work in progress" towards a new model of negotiation and co-operation proposed by public to economic actors, the goal of all these policy actions being the increasing of the diffusion of voluntary agreements. And this can be regarded as a signal to clear up the concrete and stable importance the public actors attach to the new policy approach. The environmental policy action at national and local level seems in fact oriented to provide for a framework for the diffusion and adequate implementation of these instruments. Negotiation and voluntary activities are more and more present in regulation acts and laws and embedded within a system characterised by a major recognisability, legitimisation and social acceptability, where a major amount of resources can be mobilised but within a precise constraint system. Economic actors, by their side, will have to demonstrate their real capability and willingness to use the new instruments in an adequate way and the real voluntariness to undertake their commitments. all interested groups, 41 as well as the right of notice and the right of hearing. 42 Due process implying a right to a fair hearing is the overarching principle applicable to both kinds of procedures. 43 The threat of uncontrolled agency discretion lies at the heart of American administrative law, as well as the necessity to confine, structure and check discretionary power. 44 What is obviously needed is a balanced discretionary power that is neither excessive nor harmful. 45 To limit the risk of abuse of discretion and balance excessive discretionary power, formal and/or procedural rules are provided. The obligation to give reasons, for instance, is an example of such a procedural rule. This rule has a different content according to the different forms of agency decision-making. For example, when it comes to formal adjudication, APA § 557 requires the agency to provide a statement of 'findings and conclusions, and the reasons or basis therefore, on all the material issues of fact, law, or discretion presented on the record'. The provision thus lays down quite a strong obligation to give reasons. As to rule-making, an agency's public proposal of a rule and acceptance of public comment prior to issuing the final rule can help us view the public decision as democratic and thus essentially self-legitimating. 46 Moreover, 'rulemaking is comprehensible, relatively quick, and democratically accountable, especially in the sense that decision-making is kept above board and equal access is provided to all'. 47 Rule-making has been described as 'refreshingly democratic' 48 and 'the most transparent and participatory decision-making process in the government'. 49 Technological changes and the advent of e-rule-making may have the potential to enhance public understanding of and involvement in rule-making. Scholars have noticed that 'participation in rulemaking is one of the most fundamental, important and far-reaching of democratic rights' 50 and that e-rule-making represents 'online deliberative democracy', 51 with the potential to significantly broaden a genuine public sphere in which individual citizens participate directly in governmental decision-making. 52 Nevertheless, in both traditional rule-making and e-rule-making, the content of the final decision to be taken is left to the administrative organization. Participation as defence, as well as participation as consultation, are the only forms of involvement that these traditional proceedings imply. Neither forms of co-negotiation nor forms of mediation between the conflicting interests present in society are assumed. Despite widespread participation by all concerned parties, these procedures imply -like all traditional forms of administrative procedures -unilateral intervention by the agency in the pursuit of some interest represented as 'public' or even 'general'.

The 'bottom-up model' in the US legal system: Introductory remarks on the democratic methods of policy-making
A bottom-up model can be found in the American legal order, even though it must be admitted that this model only rarely surfaces. The first assumption of such a dialogue model is that agencies do not enforce overriding rules and do not impose their will, but rather act as facilitators or brokers of decisions between disputing interests, represented by concerned parties and public interest groups as well as non-governmental actors. Mediation between conflicting parties may lead to decisions which are more acceptable because they are more the result of a compromise among stakeholders than the imposition of an interest represented First, it has to be acknowledged that the prior involvement of the stakeholders plays a basic role in establishing the assumption of the 'best' choice in light of all the relevant interests. It is also a method to avoid, after the issue of administrative measures, complaints and applications for judicial review. 53 This result, of course, is strictly connected with the need to ensure the financial and practical efficiency of the administrative action. The legal tools are many and the specific solutions may be quite different in the different contexts. For instance, a useful tool may be the constitution of 'intermediate' bodies, entrusted with the task of communicating with the public authorities. The purpose is to discover good solutions to manage activities related to the protection of the public interest. From this perspective, a very interesting idea comes from the US legal system, where the Citizens Utility Boards (CUBs) 54 are controlled by states, especially for the management of commons and utilities. The CUBs have their own place between private and public law, in the field of associations based on participation by the citizens and on democracy as the main guiding principle. 55 The aim is through a democratic method, to counter discrimination on the grounds of social and economic differences among the various groups of private parties. Their right to participation is satisfied thanks to the creation of permanent not-for-profit organizations, funded by voluntary contributions and acting under the democratic control of their membership. To grant an affordable service and to promote the adequate representation of residential utility consumers, the CUBs assist citizens in writing complaints, collecting funds and co-operating with the public law structures and authorities (for instance, the competent agencies) in the rule-making and adjudicating procedures. This instrument could be very useful, but it does not fit well in all situations. Also, the 'ordinary' instruments of procedural participation (i.e. the traditional 'right to be heard') cannot offer a sufficiently strong protection to private parties in urban planning. First of all, 'isolated' participatory contributions are normally inspired by selfish and self-defensive visions and do not give real support for the implementation of the public interest. Secondly, solicitations from private parties may be better formulated when their ideas are discussed in a public debate. Thus, two situations that might incorporate elements of the dialogue model will be discussed: negotiated rule-making and environmental mediation.

The case of negotiated rule-making: A mix between the traditional model and the dialogue model
Some examples of the dialogue model (rather, of a combination of the traditional and dialogue models) can be found when US agencies use structured bargaining among competing interest groups as a means for developing certain rules. This is the case in a specific type of rule-making procedure called negotiated rule-making (sometimes colloquially abbreviated as 'neg-reg'), which arose from dissatisfaction with noticeand-comment rule-making under the APA (which is described above). It refers to a process in American administrative law in which an advisory committee, made up of disparate interest groups, negotiates the terms of an administrative rule and proposes it to an agency. Thus, as the name implies, policy disputes raised by a rule-making proposal are resolved through a negotiating process. The agreement that results from these sessions is then forwarded to the agency, which normally publishes it as a proposed rule and follows up with the standard APA rule-making process of soliciting and evaluating public comments in order to decide whether to modify or adopt the proposed rule. 56 Some scholars have considered negotiated rule-making to be a realistic alternative to adversarial administrative procedures, as it facilitates the resolution of 'interest disputes'. 57 In a negotiated rule-making process, conflicts do not involve application of pre-existing legal standards. It is characterised, by contrast, by the absence of pre-existing rules for decision. Resolution of such disputes thus requires that all disputing parties work out the rules according to an accommodation of their interests. 58 Already in the 1970s and increasingly since the 1980s, the Occupational Safety and Health Administration (OSHA), the Department of Transportation (DOT), the Environmental Protection Agency (EPA) and some other federal agencies used the negotiation process both as an aid to the development of certain regulations, and as a more efficient, sensible alternative to the traditional 'notice and comment' procedure typically followed by federal agencies in the development of regulations. However, only in 1990 did Congress enact a statute that explicitly legitimized neg-reg by the adoption of the Negotiated Rulemaking Act 59 and the Clinton Administration became a strong supporter of its use. 60 The statute was then codified as § § 561-583 of the APA. The Act specifies a set of procedures that have to be followed if an agency wishes to use negotiated rule-making. Under these provisions, in fact, an agency may -but is not required to -use negotiated rule-making to develop a proposed rule whenever it determines that it would be 'in the public interest' to do so. 61 If the agency desires to use negotiated rule-making, it must publish a notice of that intention in the Federal Register. The notice must announce that the agency intends to establish a negotiated committee to negotiate and develop a proposed rule. 62 The notice must also list the various interests that would be 'significantly affected by a proposed rule', and determine whether those interests could be represented adequately by a group of persons brought together to serve as a negotiated rule-making committee. 63 If so, the agency may then establish a committee, made up of persons representing the various affected interests (the regulated public, community and public interest groups, NGOs, state and local governments), plus at least one member of the agency. The committee's goal is to determine whether committee members can reach a 'consensus' on the wording of a draft rule. If the committee members do reach consensus, the rule drafted by the committee must then be put out for public notice and comment, in the same way as any other proposed rule. The agency retains authority over the wording of any proposed or final rule, and is empowered to modify the rule drafted by the committee if it is inconsistent with the applicable congressional mandate. In any case, the agency itself remains sovereign because it alone makes the final decision and may accept all, part or none of a consensus rule. Some scholars counter-argue that this point is moot because the agency must make a good faith effort, to the maximum extent possible and consistent with its legal obligations, to use the consensus rule as the basis for its published rule. 64 If consensus is not reached, the agency has the power to decide, by proceeding with its normal rule-making activities. Thus, it is clear that neg-reg cannot be viewed as a pure example of the dialogue model. Rather, giving power to the agency to make a decision if dialogue fails, seems to represent a hypothesis of a mixed/hybrid traditional-dialogue model.

The Interaction between Private and Public Actors: Traditional Principles versus New Trends A Comparative Analysis
Utrecht Law Review | Volume 14 | Issue 1, 2018 More in general, the neg-reg process has been quite controversial. Proponents argue that it can increase the efficiency of rule-making through compromise and consensus. However, some American scholars argue that it is unrealistic to expect agencies to employ it as the process for issuing most major rules. 65 Critics assert that the neg-reg procedure leads the agency to abandon its role as the guardian of public interest or that it subverts 'the basic, underlying concepts of American administrative law and reasoned decisionmaking'. 66 Others find that it does not save time, money, or resources, and that it does not reduce conflict or litigation. 67 Ellen Sieglar criticized neg-reg for imposing 'considerable time and resource demands on participants'. 68 However, it is undisputed that, if used in the right context, negotiated rule-making can represent a useful tool in the establishment and implementation of a policy, thereby facilitating a better understanding of issues among different parties and among different interests. If all affected, interested parties, including the agency, participate in hammering out a consensual solution, the result is likely to be more acceptable to the participants than any policy which the agency might seek to impose. Moreover, the regulatory negotiation process allows the interested, affected parties a more direct input into the drafting of the regulation, thus ensuring that the rule is more sensitive to the needs and limitations of both the parties and the agencies. 69

The case of environmental mediation
Mediation -as an alternative or an adjunct to the adversarial process -is increasingly considered as the future in US environmental policy matters. It can be described as the process by which a neutral, third party mediator engages in the examination of ecological ideas and alternatives with the parties whose interests are at issue. Thus, during mediation, a non-partisan third party -the mediator -assists two or more disputing parties in reaching a settlement. 70 In an environmental dispute (involving, for instance, the allocation of fixed resources, the specification of public policy priorities, or the setting of environmental quality standards), parties may be one or more private corporations, a state environmental agency, city or county officials, the EPA, the Army Corps of Engineers, the Department of Justice, or any other federal or state agency with statutory authority. In the United States, modern forms of mediation have evolved rapidly in the second half of the 20th century. 71 In 1973 the Governor of Washington State agreed to let two mediators try out their ideas to resolve a long running dispute between the Army Corps of Engineers and local conservationists concerning the building of a dam on the Snoqualmie River 30 miles east of Seattle. This was the first formal mediation of an environmental dispute in the country and the result was judged a success. 72 It generated enormous interest and was credited with launching the 'environmental mediation movement'. 73 Initially only site specific cases were mediated, but from 1978 onwards broader policy disputes were also mediated. 74 Today mediation is used to resolve disputes about both site specific issues and about

Simona Rodriquez
Utrecht Law Review | Volume 14 | Issue 1, 2018 general rules of future application. These have included the location of highly controversial facilities such as incinerators, highways, dams and airports, the enforcement of fiercely contested clean-up plans of toxic waste Superfund sites, the making of broad environmental policy such as a national energy policy and the drafting of detailed and highly technical environmental regulations. 75 Some scholars have argued that environmental mediation can represent a more efficient use of societal resources, because it is more likely to produce a result on which all sides can agree. 76 And indeed, the use of mediation in environmental disputes has grown rapidly. Despite this evolution, however, environmental mediation remains a hotly contested concept, with many commentators debating whether it represents an adequate tool to resolve environmental disputes. Due to the influence it can have on a variety of interested parties, there are many intricacies involved in reaching and enforcing agreements through mediation, i.e. irreparable impacts on natural resources and public health. 77 One of the questions raised in this regard is to whom and how environmental mediators will be held accountable. As Susskind has argued, 'how can those affected by the actions of mediators effectively chastise, sue, or fire them?' 78 Critics are also concerned that parties coming into a mediation process should be given an equal chance to be heard and to determine the agenda. Mediation can be really successful only if there is a balance of power among all participants, giving both sides the opportunity to make gains. The mediator thus plays a crucial role in ensuring that all participants conduct a fair process and is responsible for ensuring that all parties have a sense that their participation is required for a successfully mediated settlement. 79 Under these circumstances, if the crucial goal is to consider environmental mediation as a dialogue-process where all parties meet face-to-face to reach mutually acceptable decisions with the aid of a neutral and accountable mediator, guidelines -both at federal and state level -are still needed to ensure that mediation efforts are structured properly and enforcement of such guidelines still needs to be institutionalized.

Final remarks: Civil society and demand for broader bottom-up democratic spaces.
The increased development of regulatory strategies involving a plurality of actors has radically changed the traditional way in which public regulators make their public choices. 80 These crucial changes require more attention to the interaction between public and private actors. 81 Important developments have occurred in relation to public regulation. While in the recent past, private regulation was useful to define regulatory areas not covered by the public sphere, today there is a trend towards a different form of co-regulation between public and private regulators. 82 Within this framework, at a fairly general level of abstraction, the traditional (continental) model is facing new requests mainly from civil society: a demand for broader bottom-up democratic spaces. This trend occurs not only in administrative decision-making processes, but in legislative procedures too. For instance, several forces worked together to promote the spread of the popular initiative in the United States. 83 The earliest efforts were launched in New Jersey by antimonopoly Sullivan and others looked to direct democracy as a means to promote causes that failed to gain traction in state legislatures: the single tax, prohibition, regulation of monopolies, labour rights and anti-party electoral reforms. Groups promoting each of these issues may not have shared policy goals, but many were able to embrace one overarching institutional goal: adoption of the popular initiative and referendums as a means by which to pursue further reforms. However, today direct democracy itself cannot be considered as sufficient to correct the inefficiency of representative government for many reasons: for instance, initiatives and referendums may often 'place minority rights and individual liberties in serious jeopardy'. 85 Confronted with this discouraging situation, what are the other means by which citizens (as well as the associations in which they are organized) could effectively participate in the governance of public life? There is a set of arguments that explain why the public, societal bodies and individuals should be involved in reaching a decision based on an agreement. These arguments deal with the growing of citizenship power. The modern western citizen wishes to be seen as a full participant, to be taken seriously. The individual wishes to be seen as an individual, to be acknowledged and to be heard, which leads to a conundrum for modern democracy which is still founded on 'the corporate and representative organization of the mediation of interests'. If taken seriously by the government, however, this might imply that the citizen is not only awarded rights, for example a right to be heard, but also given duties, for example, a duty to be involved in issues concerning the individual citizen. This duty might be expressed as a duty to participate, or forgo your turn to influence the substantive outcome.
Another, related, argument for having final decisions based on a negotiation between equal parties -with the administrative agency as either 'just' a procedural guardian, but not as primary decision maker, or as party between equal parties -would be that it is pressure groups and interest groups that know what is happening best. These societal pressure groups do care about the substantive outcome, and should therefore be allowed to influence the substantive decision-making procedure. Moreover, efficiency may be an economic argument for leaving substantive issues to be decided between parties, instead of having substantive issues examined again in court. The idea is that not going to court will be less costly than going to court, not only in purely monetary terms, but also in terms of societal loss. Too much litigation -it could be held -is not healthy for a society. This argument, however, may be very much culturally influenced, in that it seems that in some societies the costs of litigation are not only factually much higher than in others, but also the idea of whether litigation is something out of the ordinary may be very dependent on cultural issues. Nonetheless, if interested parties are substantively involved in reaching a final decision, this may lower the costs of litigation in general. 86 This research shows that the 'traditional model' is very much the dominant one in both the Italian legal system and the American one. However, it shows that there are indeed instances of the dialogue model, though these seem to differ in context, content and form. The outcome of these changes is that a mixed model situation arises: the traditional model is infused with dialogue-type elements. The Italian legal system should learn from the American experience. Reading Italian Law No. 241/1990, it is clear that participation rules only apply to adjudication, not to rule-making. There is not even an informal notice or comment. In sum, although rule-making involves the exercise of discretion concerning not only the technical means of implementing a policy, but also the priorities to be accorded to relevant, competing interests, nothing is specified by the law except the fact that everything is left to specific statutes only promoted the expression of the majority will on general political legislation, but also permitted oppression of minorities and the imposition of a particular set of social or moral values. The history of direct democracy is permeated with this tension between effecting the will of the majority and protecting the rights of the minority. On  This situation is quite different from that of the US Administrative Procedure Act of 1946, where participation rules for rule-making were developed, with the aim of the significant involvement of civil society in the most relevant decisions. As we have seen, both negotiated rule-making and environmental mediation are examples of a compromise among the traditional and the dialogue models. They can be viewed as concrete proof of the slow but inexorable evolution of the traditional model towards a dialogue one. Even if these remain hotly contested proceedings, with several American commentators debating whether they are adequate alternatives to traditional methods, they can undeniably be viewed as examples in which decisions are more the result of a balance among the stakeholders than the imposition of an interest represented as 'public' or 'general'. Indeed, these regulatory negotiations involve multiple interests whereas the agency itself represents just one interest. 87 Some defenders of this evolution have recently highlighted the benefits of a negotiated model over traditional methods: When the regulator makes the decisions [through the traditional tools], everyone loses something, and parties have no control over what they lose. [On the other hand], in the negotiation process, each party chooses which among the many points it is willing to lose in order to gain something else (...). The trade-offs arrived at voluntarily are much more stable and effective. 88 Negotiation thus allows the parties themselves to make the trade-offs, instead of leaving it to the public regulator to split the difference. It is clear that dissatisfaction with the traditional channels should lead scholars and practitioners to note that new alternative methodologies are developing to supplement conventional systems. Public law must undoubtedly re-orient itself to study the complex public-private arrangements that characterize contemporary regulation. A new conception of governance as a set of negotiated relationships between public and private actors should be acknowledged and encouraged. 89 For the above mentioned reasons, a pluralist 'interest representation' model of administrative law must be welcomed. 90 This is a model in which public procedures ensure that interest groups enjoy a forum in which to press and negotiate their views and that agencies adequately and concretely consider those views when making final and negotiated policy choices.
The above is not to say that the traditional model can be declared outdated. This study shows that participation can assume different forms and be expressed in different ways. The idea of democracy itself has changed over the course of time too. It not only describes a political system, it also represents social relationships, values and guarantees, as well as equal opportunities for all citizens and their associations. Today, different participatory instruments may increase the level of participation as well as people's confidence in institutions. Think about public assemblies, public consultations and referendums. The local level (municipalities, local communities) is undoubtedly the natural ground for developing participatory democracy. Nevertheless, other new channels promising to increase participation have also to be taken into account. Within this framework, a new form of relationship between private and public regulators is today acquiring new importance and requiring wider spaces.
This research has shown that lack of trust in traditional democratic institutions is, both in the European (Italian) and American framework, widespread. The 'dialogue model' can really be viewed as a way to approach civil society and politics and allow people to be an effective part of their democratic institutions. 87 However, Spivey and Micklos harshly criticized these new trends. As to negotiated rule-making, they considered it as the ultimate extension of the interest group theory of politics. 'Rules are nothing more than the product of negotiation of the parties affected by the rule with the public interest lost in the process.' While defenders of neg-reg counter that the agency is not to abandon its role as protector of the public interest as a participant in neg-reg, the criticism is nonetheless troubling: see Spivey & Micklos, supra note 56, p. 264.  However, several problematic aspects of a complete paradigm shift can be seen. For instance, there is a danger that some groups have more (monetary) clout than others, and will be able to influence the outcome to the extent that the substantive decision is not necessarily in the interest of all concerned parties. Equally there is a danger that some groups will not be heard. There will always be groups or interests that have no strong or organized voice: children, the disabled, the elderly, the weak, the 'not logged in', the optedout. The actual lack of systematic regulation of participatory procedures inevitably risks increasing the influence potential of well-organized interest groups to the detriment of more loosely organized pressure groups, citizen initiatives, and, worst of all, the individual citizen. This situation can make it possible for those groups that possess considerable bargaining power to reach, unofficially, decisions together with the administration on policy or regulatory matters. 91 Thus, safeguards are needed to ensure that it is not only the most powerful groups which get their voices heard. This could imply an obligation on the part of the institutions to provide some sort of financial assistance for all those parties with an interest and a will to participate. Participant compensation meaning agency payment of expenses that members of the public incur when they are involved in administrative proceedings is established practice in the American system. 92 In Europe, selected interest groups again have preferential treatment.
In any case, the construction of a coherent system of participatory procedures cannot be considered sufficient on its own. Effective public participation depends mostly on conditions of a political nature, like the level of the political education of the citizens, the political maturity of those citizens that enables them to make informed choices, and the desire on their part to abandon individualism and participate in the exercise of public power. 93 Madison's emblematic declaration can be called to mind to end this study. It specifically refers to the American legal framework, but it is useful to more general aims: