Public-private Partnerships and the Development of Infrastructure in Kenya: Understanding and Resolving Disputes

Abstract

Disputes that arise under Public Private Partnerships (PPPs) and Private Finance Initiatives (PFIs) may often involve problems that do not frequently arise in connection with other types of contracts. This is attributable to the complexity of PPPs, PFIs, large infrastructure projects and the fact that they are to be performed over a long period of time, with a number of different and diverse enterprises participating in the financing, construction and in the operational phases. Furthermore, these projects usually involve governmental agencies and a high level of public interest. The role each party plays in the project will impact the method for resolving disputes which may ultimately arise amongst the parties. There is no steadfast answer as to which type of dispute resolution method will fit a particular situation but, the ability to adequately resolve disputes, which may arise at any point in the PPP hierarchy, is critical to ensuring the long-term viability and profitability of any PPP project. Therefore, careful attention must be given to managing any disputes, real and potential to avoid as much as possible the escalation of disagreements between the parties and preserve their business relationship; to prevent the disruption of the works or the provision of the services; and to address the particular characteristics of the disputes that may arise.