Canadian Lawyer InHouse

48 www.canadianlawyermag.com/inhouse INDUSTRY SPOTLIGHT WHILE INFRASTRUCTURE opportunities continue to roll out across Canada, risk allocation between the public and private sectors is presenting challenges and slowing down the industry for public-private partner- ships. Some large players have left the P3 market entirely. "P3s are at a crossroads in Canada right now, and there are fewer projects in the pipeline than we've seen in recent years," says Andrés Durán, general counsel at EllisDon Corporation. "The current risk transfer and the application of the language in P3 contracts is at a state now where we and others in the market have a reduced appetite for signing these deals. We have been calling for changes to the contracts, and other contractors have either called for change or just bowed out of the market." The market has received positive signals recently that some jurisdictions are prepared P3 model needs change Public authorities must address issue of risk transfer as construction companies are questioning the model, say in-house counsel to address some of the key risks in the agreements. If public authorities agree to make changes to the standard P3 projects and re-set the risk transfer, Durán says he anticipates a renewed appetite would follow, which would lead to a more robust market. On the other hand, if such changes do not occur, he fears that the P3 model may not survive. "We are at a tipping point right now in terms of the risk transfer that authorities are looking to push on to the private sector," says Chris Moran, general counsel at Maple Reinders Group Ltd. "The number of major players that have left the market speaks volumes. More and more companies are taking a look at what the risk transfer is and what they are willing to accept." Mark Platteel, general counsel at ACS Infrastructure, anticipates continued infrastructure investment by governments to INFRASTRUCTURE EXPERTS ANDRÉS DURÁN GENER AL COUNSEL AT ELLISDON CORPOR ATION MARK PL AT TEEL GENER AL COUNSEL AT ACS INFR ASTRUCTURE BENOIT MALLET TE SENIOR DIRECTOR, LEGAL AND LITIGATION AT POMERLE AU GREG SOUTHAM PARTNER AT DAVIES WARD PHILLIPS & VINEBERG LLP CLÉMENTINE SALLÉE PARTNER AT BL AKE CASSELS & GR AYDON LLP "We are at a tipping point right now in terms of the risk transfer that authorities are looking to push on to the private sector." Chris Moran, Maple Reinders Group Ltd.

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