A CRITICAL EXAMINATION OF ALTERNATIVE DISPUTE RESOLUTION IN PUBLIC-PRIVATE PARTNERSHIPS

Abstract

Disputes in design-build-finance-operate-maintain (DBFOM) public-private partnership (P3) infrastructure concessions are structurally inevitable — driven by the model’s long duration, complex risk allocation, and financial interdependencies. Alternative dispute resolution (ADR) mechanisms are now standard in P3 contracts, yet significant inconsistency remains in how these provisions are designed, sequenced, and enforced across jurisdictions. No comprehensive, evidence-based ADR framework tailored to the contractual and operational environment of DBFOM concessions existed prior to this research.This dissertation addresses that gap using a three-phase mixed-methods approach. The first phase involves a systematic literature review following the PRISMA framework, analyzing 75 peer-reviewed articles published from 1990 to 2023. This review traces the evolution of ADR scholarship from arbitration-focused practices to multi-tiered, hybrid models and highlights the lack of cross-jurisdictional empirical research as the main gap. The second phase is a documentary case study of twenty DBFOM highway P3 contracts, ten from the United States and ten from Canada, performing a clause-level comparative analysis. This reveals clear jurisdictional differences: Canadian provincial frameworks follow standardized, prescriptive multi-tier ADR sequences, whereas U.S. contracts show state-level fragmentation due to institutional delegation and statutory variation. The third phase involves a qualitative thematic analysis of sixteen semi-structured interviews with construction attorneys, dispute board members, mediators, arbitrators, owner's advisors, and technical consultants, resulting in ten themes and thirty codes. Key findings include strong practitioner support for multi-tiered ADR, a shift in perception of Dispute Review Boards from tools for dispute resolution to dispute prevention, and recognition of senior executive escalation as the most crucial resolution level across roles. Additionally, two structural gaps are identified: first, flow-down of ADR provisions at the concessionaire-to-design-builder interface; second, dispute-resolution mechanisms during the operations phase in DBFOM contracts. The three evidence streams come together in a detailed six-tier ADR framework—Steps 0 to 5—featuring eight practice-based refinements, a final tier adaptable to different jurisdictions, an ADR annex for the operations phase, and model flow-down clauses for the design-build subcontract. This framework is ready for immediate use in North American DBFOM concession agreements and provides guidance for public agencies, concessionaires, and legal teams aiming to enhance dispute management throughout the entire concession lifecycle. KEYWORDS: Alternative Dispute Resolution (ADR), Public-Private Partnerships (P3), Framework Development, Construction Disputes, Infrastructure, Conflict Management