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Sara Valaguzza and Eduardo Parisi

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Sara Valaguzza and Eduardo Parisi

This content is available to you

Sara Valaguzza and Eduardo Parisi

The introThe introduction to the book puts the reader in medias res, picturing examples of public private partnerships that show forms of cooperation between the public and the private sector carried out in order to satisfy a community’s need. Declaring the intention to further the juridical debate on public private partnership as an interesting phenomenon able to curve some transversally accepted dogmatic principles of administrative action and, at the same time, absorb the private sectors into a social dimension, the authors recall the main directions of the academic reasoning on public private partnership, setting the book within the public law debate on the topic. Next, the question of the definition of public private partnership is posed as a critical issue to solve in order to reconstruct a theoretical framework of the figure. Lastly, the perspective assumed in the book is summarized and described.duction to the book puts the reader in medias res, picturing examples of public private partnerships that show forms of cooperation between the public and the private sector carried out in order to satisfy a community’s need. Declaring the intention to further the juridical debate on public private partnership as an interesting phenomenon able to curve some transversally accepted dogmatic principles of administrative action and, at the same time, absorb the private sectors into a social dimension, the authors recall the main directions of the academic reasoning on public private partnership, setting the book within the public law debate on the topic.

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Sara Valaguzza and Eduardo Parisi

In the present chapter, the first steps towards a precise juridical definition are taken. After a brief background on the revolutionary weight of public private partnership, the authors address a certain vagueness in the discourse on the topic and the need to regain juridical precision. To this end, the analysis begins with a semantic approach, deepening the meaning of the words that compose the expression ‘public private partnership’ and their conceptual background. The analysis outlines two defining features of public private partnership, namely the concept of cooperation and the logic of the compromise. Subsequently, the reasons and advantages of public private partnership are assessed. In this regard, the necessity for public officials to escape from their isolation and the convenience for private businesses to revolve towards publicly relevant activities are detected as principal drivers of public private partnership.

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Sara Valaguzza and Eduardo Parisi

The second chapter analyses the international dimension of public private partnership in order to acquire some fundamental elements for the systematic reconstruction of its juridical essence. In this context, public private partnership appears to be a political strategy for the achievement of sustainable development goals, based on the acknowledgement that only through alliances is it possible to create a better world for future generations. The institution of goal-oriented networks thus becomes essential in the achievement of globally sensitive social and environmental objectives. The role of multilateral development banks and of non-governmental entities as key players of said network is analysed in a perspective that highlights the global cultural and educational value of public private partnership. Lastly, it is argued that to produce value for the people, public private partnership should be treated in the international dimension as an efficient connector of parties involved in the achievement of public interests who temporarily pull resources together for the goal of reaching economic sustainable growth of a community, in the so-called ‘people first’ approach.

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Sara Valaguzza and Eduardo Parisi

The chapter deals with the local dimension of public private partnership, meaning how the concept is used in a geographically limited legal framework, belonging either to a national law or to a supranational law (as in European law). Distinctive features of the concept are detected on the basis of the analysis of several new legislations on the topic, selected throughout the world according to geographic, chronological and objective criteria. The analysis carried out shoes an evolution of the concept, from mere instrument of financing to a complex method of social cohesion and innovation. In this dimension, public private partnership emerges as a political and strategic choice aimed at providing legitimacy to national and local governments as promoters of good administration. The mentioned choice is based on the co-management of public tasks and the involvement of the community as interpreter of social needs and participant in the design and implementation of answers. For this reason, the authors argue the necessity to consider public private partnership in a dimension that is larger than concession-type contracts, as demonstrated by some interesting examples of national disciplines which place the concept in the context of democratic participation, solidarity and innovation.

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Sara Valaguzza and Eduardo Parisi

Moving towards the reconstruction of the juridical characteristics of public private partnership, the chapter distinguishes the concept from similar ones, clearing the path of common misperceptions. In particular, the tendency to assimilate public private partnership to the concepts of subsidiarity and delegation is criticized and substituted with the idea of co-management of public task as key to the juridical essence of public private partnership. Moreover, the authors affirm that public private partnership is not a means to solve market failures but rather an instrument of cooperation consistent with the theories of collaborative management of commons, which shows that the actual failure is related to the traditional dichotomies between public and private sectors in the performance of activities in the general interest. Lastly, public private partnership is distinguished from privatization and forms of cooperation with social enterprises and institutions of the so-called third sector, on the basis of the valorization of the mutual undertakings of both public and private actors in the partnership.

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Sara Valaguzza and Eduardo Parisi

Chapter 5 contains the reconstruction of the essential elements that, on the basis of the analysis carried out in previous chapters, define the concept of public private partnership. Abandoning the ambiguity that dominates the political and juridical debate on the topic, the authors provide a definition based on juridical argumentation and the results of research carried out. The definition provided of public private partnership, as ‘the agreement between at least a private entity and a public authority for the joint management of one or more activities aiming at aiding public authorities in the satisfaction of a public interest’ is intended to part from the association with concession contracts, considered as a species of the broader genus. Elements included in and excluded from the definition are discussed in detail, also with reference to existing definitions of the concept.

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Sara Valaguzza and Eduardo Parisi

In Chapter 6, the elaborated definition of public private partnership is further discussed in relation to one specific aspect: the public interest. The issue must be deepened because the reference to the concept of public interest brings the discussion to the past, in a time when the identification between the public interest and public subjectivity was indissoluble. To examine the possibility of detecting an alternative expression that could be more consistent with the detected characters of public private partnership, different possible acceptances of ‘public interest’ are analysed. At the end of the excursus, it is affirmed that the concept of public interest, even in its more flexible acceptances, does not adequately represent the dimension of governance that public private partnership contributes to generate. For this reason, more modern theories of public governance are discussed which embrace a wider and more objectified vision of administrative action, aimed at the production of benefits for the community. In this new and modern scenario, detached from the authoritative view of public administration, the notion of public interest is transformed and objectified, as it is detached from its subjective connotation. A new figure is found: the one of ‘common interests’, in plural, to indicate the composite nature of the concept, which embeds at least two subjective visions belonging to the public and private partners and valorizes the recipient of the value of the partnership, namely the community.

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Sara Valaguzza and Eduardo Parisi

In the concluding chapter, the consequences of the reconstruction of the juridical essence of public private partnership are drawn. The analysis carried out affirms that through public private partnership the government changes its face. The public administration changes in shape, procedure and content. Public private partnership is, at the same time, cause and consequence of a transformation that has its roots in the reasoning of the 1990s on the management of commons. In a condition of scarce capacity of public administration to timely and efficiently respond to the needs of the community, and before a flourishing and promising business activity, the loss of accountability of public operators inevitably creates a torsion towards private action. The mentioned torsion is here explained with reference to the principles of administrative action, the modalities of administrative action, the expected results from governmental activity and the public administration’s liabilities. These mutations are described not only in the dimension of public private partnership, but as consequences of a transformation that, from public private partnership, expands to all dimensions of administrative action. The consequence is the identification of a new integrity in public administration, which is measured in its capacity to interpret and answer the needs of the community.