Infrastructure Privatization Contracts and Their Effect on Governance

Source: Ellen Dannin, The Pennsylvania State University Dickinson School of Law, July 10, 2009. Penn State Legal Studies Research Paper No. 19-2009

For all but those who have an ideological commitment to privatization, the issue driving privatization is how to fund public infrastructure. Thus, arguments for privatizing infrastructure are (1) to provide money so cash-strapped governments can fix crumbling infrastructure and (2) to shift future financial risk to the private contractor, as well as, of course, the financial rewards.

The reality, though, is far different. Provisions commonly found in infrastructure privatization contracts actually make the public the insurer of private contractors’ return on investment. Indeed, were it not for the lengthy provisions that protect contractors from diminution of their expected returns, the contracts would not run on for so many pages.

Of greater importance, infrastructure privatization contracts give private contractors a quasi-governmental status, with power over new laws, judicial decisions, propositions voted on by the public, and other government actions that a contractor claims will affect toll roads and revenues.

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