Law and Policy of Public-Private Partnerships (LAW320H1F)

Many Canadian jurisdictions have built public infrastructure such as hospitals, prisons, roads and even provided services traditionally provided by the public sector through partnerships with the private sector (commonly known as public private partnerships or P3s). This course offers a detailed study of the law and policy choices in this field. We will cover the specialized contractual and financial issues involved in P3 projects as well as the regulatory and public policy challenges they raise. The legal issues addressed will include the risk allocation between the public and private sectors in the various construction, financial and operating agreements involved in P3s. Tapping into the expertise of relevant participants, topics covered will include the law and practice of procurement, the various models of concessionary agreements, the role of lenders and equity participants, the transfer of construction and operating risk and the legal obligations of the state. It is intended that students will come away with an appreciation of the legal issues that underlie the various agreements and of the practical concerns facing government entities and the private sector throughout the process, from the initial choice of policy instrument through to the very end of the term of a concessionary contract.

On the policy side, we will review the historical experience in Canada, the role of the public interest in public private partnerships both conceptually and in the context of various project models, the economic case for and against P3s, the means of regulatory oversight and the role of the state in fulfilling and enforcing private obligations in the P3 context. Students will have an opportunity to assess the theoretical and practical merits and demerits of the full spectrum of P3 methods of delivering public goods and services. We will place a particular focus on the Infrastructure Ontario model but will also review other Canadian and international jurisdictions where appropriate.