New law of ports: legal challenges and investment prospects

• Autor(a) principal: Farranha, Ana Claudia
• Data de Publicação: 2015
• Outros Autores: Frezza, Conrado da Silveira, Barbosa, Fabiana de Oliveira
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/56794
• topic: PORT SECTOR; NEW LAW ON PORTS; REGULATION; PUBLIC CONCESSION; PORT LEASES; SETOR PORTUÁRIO; NOVA LEI DOS PORTOS; REGULAÇÃO; CONCESSÃO PÚBLICA; ARRENDAMENTOS PORTUÁRIOS.

 THE SITUATION OF THE BRAZILIAN PORTS HAS BEEN IDENTIFIED AS A MAJOR CONSTRAINT TO ECONOMIC DEVELOPMENT IN BRAZIL. THIS PROBLEM IS ATTRIBUTED MAINLY TO THE HIGH COSTS AND LOW EFFICIENCY IN PORT OPERATIONS. RECENTLY, WITH THE ENACTMENT OF THE NEW LAW OF PORTS, IT WAS ESTABLISHED A NEW REGULATORY FRAMEWORK FOR THE BRAZILIAN PORT SECTOR, AIMING TO PROVIDE GREATER FLEXIBILITY TO THE TRANSACTIONS AND MODERNIZE THE SECTOR. PORT LEASES WILL BE REGULATED SIMILARLY TO A PUBLIC SERVICE CONCESSION, EMPHASIZING PERFORMANCE PARAMETERS AND TARIFF REGULATION. THE NEW LEGISLATION BRINGS IMPORTANT INNOVATIONS, SUCH AS THE CRITERION OF JUDGMENT IN BIDDING FOR LEASES, THE NOT MANDATORY PAYMENT OF GRANT VALUE FOR THE ASSUMPTION OF THE AREAS AND THE FACILITATION FOR ESTABLISHING PRIVATE PORTS. THE AIM OF THIS PAPER IS TO INVESTIGATE THE MAIN LEGAL CHALLENGES BROUGHT BY THESE INNOVATIONS AND HOW THEY CONFORM TO THE REQUIRED STRUCTURE FOR A BETTER FUNCTIONING OF PORTS AND THE PROSPECTS OF INVESTMENT IN THE SECTOR. INITIALLY, WE WILL ADDRESS THE PROCESS OF CONVERSION FROM MP NO. 595/2012 TO LAW NO. 12.815/2013, EMPHASIZING THE MAIN POINTS OF DEBATE AND THE INTERESTS AT STAKE THAT MOTIVATED CHANGES TO THE BILL DURING THE VETO. THEN WE WILL INVESTIGATE THE LEGAL STATUS OF PORT LEASES,ANALYZING THE EXTENT TO WHICH THEY APPROACH THE PUBLIC SERVICE CONCESSIONS MODEL. IN THE NEXT ITEM, WE WILL PRESENT THE CHANGES IN THE COMPETENCE OF THE GRANTING AUTHORITY AND OTHER ENTITIES INVOLVED IN THE REGULATION OF THE PORT SECTOR. WILL BE FURTHER ANALYZE THE CHANGES IN THE CRITERIA FOR JUDGING THE BIDS IN PORT LEASES AND ITS MAJOR IMPACTS. FINALLY, WE WILL MAKE SOME OBSERVATIONS REGARDING THE STATUS OF PRIVATE TERMINALS. WE CONCLUDE THAT THE NEW LAW OF PORTS ATTRIBUTES TO PORT LEASES THE SAME KIND OF REGULATION TYPICAL OF PUBLIC SERVICE CONCESSIONS, AND EMPHASIZES AGILITY AND THE LOW COST OF OPERATIONS, BRINGING GROWTH PROSPECTS TO THE SECTOR, ALTHOUGH ITS EXACT IMPACT IS UNCERTAIN. THE FIELD OF STUDY OF THIS ARTICLE IS REGULATORY LAW AND ITS METHOD WAS THE INDUCTIVE.