While the pandemic had seemed to be the only narrative in infrastructure for the past two years, its dominance has receded. This is not because it is not still having a dramatic effect; rather, we have come to accept that it is only one of several sources of uncertainty.
“The technological breakthroughs, the environmental crisis, the pandemic, the war in Europe, and the cyberattacks on our soil remind us of the extent to which recent events are highly likely to transform our lifestyles, our values, and, incidentally, our priorities in infrastructure,” says Jean Patrick Dallaire at Langlois Lawyers LLP.
Infrastructure lawyers, in other words, are always accustomed to uncertainty. And they have many tools to help their clients and governments navigate choppy waters while still investing in the long-term.
Two new procuring models appearing on the Canadian infrastructure scene are the alliance model and the progressive design-build model, also known as collaborative models. “There has been a huge increase in interest in those,” says Ilan Dunsky at Dentons.
And once the projects have started, the need for innovation in dispute resolution arises.
“We’re seeing that the vast majority of large, complex construction disputes and infrastructure disputes are being resolved by way of arbitration rather than traditional court litigation, to the point where, I would say, it’s actually quite unusual for a big construction dispute to go to court rather than arbitration these days,” says Vasilis Pappas at Bennett Jones LLP.
Arbitration is almost always preferable, but it has a drawback – a lack of transparency and legal precedent. Yet arbitration institutions are now planning to publish anonymized awards to address this, says Pappas.
And it is not just private institutions that are becoming more innovative. Broadband internet – a priority well before the pandemic – has become even more vital now. But how it gets delivered requires new tools. In August 2021, Innovation, Science and Economic Development Canada announced a $1.44 billion investment in Telesat’s low-earth-orbit satellite to provide broadband internet to 40,000 households.
As the pandemic recedes and new uncertainties emerge, these tools and projects will continue to evolve. But infrastructure lawyers will ensure that the job gets done despite all the ups and downs.
Lexpert is pleased to partner with The Canadian Council for Public-Private Partnerships, whose advocacy, research and education on behalf of its members continue to drive this sector.
