Shifting dynamics in infrastructure disputes
Originally published in Financier Worldwide Special Report: Corporate Disputes, September 2026.
Corporate Disputes convened practitioners from Canada, Spain, the United Kingdom, Mexico, the United States, the United Arab Emirates and Switzerland to discuss how infrastructure disputes are changing. Bryan G. West, a partner at McCarthy Tétrault LLP and a nationally recognised industry leader on construction, infrastructure and project disputes, provided the Canadian perspective. His contributions are distilled below.
Disputes more frequently managed inside the project schedule
The most visible change across Canada's most populous jurisdictions is timing. Infrastructure disputes were historically managed after the project was built; they are now actively managed during construction. Most files start and finish inside the project schedule, with only the larger mandates carrying into the post-project period.
Two developments drive that shift. The first is the complex, multi-phase dispute resolution machinery now built into most provincial standard form infrastructure contracts. The second is the continued rollout of statutory prompt payment and adjudication rights, which began in Ontario and Alberta and now reach most other major provinces, Quebec and the federal government, including government procurement agreements. As in the United Kingdom and Australia, which went first, uptake of these new statutory tools is slow but steady as contractors and subcontractors acclimatise.
Dispute sources remain largely the same but responses are evolving
Cost overruns, supply chain disruption and delay remain the core of the work. Whether projects are truly larger than they used to be is arguable, but complexity, change events and the frequency of change orders are all clearly increasing. These disputes tend to originate the same way: the project starts without complete design, carries immovable milestones and proceeds without critical conceptual information, such as where the station sits, which neighbourhoods the track runs through, or who the end-use operator will be. That information arrives mid-project from the planning office, a late lease or political intervention.
What has changed is the response. Owners and contractors now retain scheduling and quantum experts while the project runs and track impacts in real time, at real cost in a tight labour market where construction and energy compete for the same trades. Active contract and evidence management pays dividends.
The definition of a stakeholder has widened
The most interesting change is who now counts as a stakeholder. Almost all modern infrastructure is built where people live, in or close to communities, residents and industry who understand their rights, are empowered by education, technology and media, and can pull innumerable financial, political and social levers to assert them. Indigenous communities are increasingly a significant participant on almost every Canadian project of material scale.
The approaches to manage wider stakeholder pools are both practical and structural. Practically, project buy-in, long lead engagement and early management of likely stakeholders and bottlenecks pay dividends. Structurally, successful delivery models funnel disputes inside the project superstructure toward a single point of determination, rather than leaving multiple angles of attack through the permitting process, planning and environmental agencies, regulatory bodies, and the courts. Statutory frameworks for one stop approval and dispute management still lag, although there are notable efforts, such as the major projects office, toward more unified approval processes.
Arbitration remains the preferred forum
Arbitration remains the preferred route on major projects for reasons that have not changed. As compared to traditional litigation, arbitration has advantages such as confidentiality, procedural and evidentiary flexibility, and access to and choice of decision makers who understand construction/infrastructure law and the construction/infrastructure market. On those measures arbitration is comparatively streamlined against traditional court processes, and international arbitration remains the default where the parties source from different jurisdictions, given enforcement under the New York Convention. Keeping arbitration effective means avoiding devolvement into an application and contested motion-driven process, a key driver of delay and expense creep in classic court litigation.
Domestically, enforceability is rarely an issue when dealing with court or arbitral awards. The harder problem is managing related claims across several contracts where the consolidation and joinder provisions were not drafted with the project structure in mind. Cross-border, the genuine obstacles are sovereign immunity, restrictions on attaching state assets and political resistance to payment. Parties are likely to address those issues in the contract documents while goodwill or long term business interests remains.
The outlook: we anticipate more disputes, arriving earlier
The prediction is more disputes, arriving earlier in the project. The energy transition is broad, spanning nuclear, renewables, transmission, storage, carbon capture and hydrogen, alongside a general need for more energy and infrastructure in more places, funded by markets and governments alike. There is more money, but the labour, supply and expertise constraints remain largely unaddressed and the demand for speed will exacerbate key drivers litigation, lack of planning, lack of testing and complete design, and an increase in inexperienced parties entering the market. On the latter point, demand is drawing in counterparties less familiar with large construction projects, including critical subcontractors and material suppliers unaccustomed to the contract management and regulatory discipline these projects require.
Add the re-emergence of tariffs and trade wars, local preferences that keep international project management expertise out, and more frequent weather events affecting local performance and international supply, and the conditions exist for delay and cost events to multiply. Technology cuts both ways, letting honest brokers surface deviations early and bad actors build disputes on immaterial errors. Challenging years lie ahead.
What this means for project participants
- Build for in-project dispute resolution. Contract machinery and statutory adjudication now expect disputes to be run and resolved while the work continues, not archived for a post-completion reckoning.
- Engage scheduling and quantum expertise while the project runs. Real-time tracking of impacts is now the norm on significant files, and the evidence it produces is what supports entitlement later.
- Identify and engage stakeholders early. This ncludes Indigenous communities and neighbouring residents and industry. Long lead engagement and early management of likely bottlenecks are cheaper than contested approvals.
- Draft consolidation and joinder provisions against the actual project structure. Where related claims run across several contracts, misaligned clauses are the harder domestic problem, not enforceability.
- Address enforceability issues in the contract documents. Including sovereign immunity, asset attachment and payment risk in the contract documents while goodwill remains, rather than after a dispute has crystallised.
Read the full article of the Financier Worldwide Corporate Disputes here: Shifting Dynamics in Infrastructure Disputes
About the contributor
Bryan G. West is a partner at McCarthy Tétrault LLP and a nationally recognised litigator and authority on construction, infrastructure and project disputes, leading McCarthy Tétrault’s Construction and Project Dispute Groups for Western Canada. He advises on Canada's most significant projects and high-value disputes involving public-private partnerships and novel procurement, and authors leading Canadian texts including Heintzman, West and Goldsmith on Canadian Building Contracts and the forthcoming Alberta Construction and Infrastructure Law.
These takeaways are drawn from the Worldwatch roundtable "Shifting dynamics in infrastructure disputes", published in Corporate Disputes, October-December 2026, in which Bryan West contributed the Canadian perspective alongside practitioners from Spain, the United Kingdom, Mexico, the United States, the United Arab Emirates and Switzerland.
