La Operatividad de las Asociaciones Público-Privadas en el Financiamiento Competitivo de Proyectos Públicos en Sectores Estratégicos, desde la Perspectiva Jurídica del Derecho Comparado: Análisis Doctrinario de las Experiencias Argentina, Colombiana y Ecuatoriana

Abstract

The operation of public–private partnerships (hereinafter PPPs) as one of the key instruments for competitive financing of projects in Ecuador’s strategic sectors requires the harmonization of financial–contractual efficiency with the legality, oversight, and guarantees inherent to Ecuador’s constitutional State of rights and justice. In this regard, both Ibero-American and Ecuadorian legal scholarship concur that the systematic evolution of PPPs—from traditional public works schemes to complex long-term contractual frameworks—entails, in a complementary fashion, risks of allocation, governance, and legitimacy that must be modulated through the application of normative and regulatory techniques capable of ensuring competitive financing in strategic sectors. Along this line, the central question is whether Ecuador’s constitutional and legal framework has effectively operationalized PPPs in such a way that they attract national and foreign private capital while simultaneously ensuring the protection of the public interest. In this context, the present article develops a functional and guarantee-based interpretation of PPPs, understanding that their competitiveness does not depend solely on an analysis of prices and timelines, but rather on the articulation of an institutional design conducive to private-sector participation in strategic sectors; on the adequate justification of administrative actions undertaken by public institutions; and on the establishment of transparent mechanisms and corrective measures in cases of contractual non-compliance. Within this analytical framework, the study contrasts the approaches of Ecuadorian scholarship (Robalino, Baldeón, Grijalva, Oyarte, Montaño, Andrade) with comparative contributions from Colombian doctrine (Henao; Bernal Pulido) and Argentine legal thought (Gordillo; Marienhoff; Cassagne and related traditions), in order to assess whether Ecuador’s contractual system for PPPs effectively internalizes costs, risks, and externalities, and whether the judicial and administrative standards of control minimize asymmetries and contingent fiscal risks. On this basis, the findings reveal: (a) a conceptual maturation of PPPs as a legal instrument of public–private collaboration; (b) a practical deficit in project preparation, risk structuring, and ex post oversight; and (c) the need to align procurement, economic regulation, and the administration of justice in order to sustain financial competitiveness consistent with the principle of legality (juridicidad). Accordingly, and in harmony with regional doctrinal experience, this study proposes general guidelines aimed at the systematic improvement of the contractual and regulatory quality of PPPs in Ecuador.