Now more than ever, a growing number of significant projects are underway for the construction of new terminals or the renewal or extension of concessions concerning important port terminals located in key Italian ports.
A consideration arises spontaneously as to the timeline of such procedure, with the new port re- form being (or supposed to be) now in the final straight.
Indeed, port governance organisation might radically change very soon. Consequently, all those concerned might have to face new rules, with more focus – we guess – being placed on the pro- jects’ bankability.
In a context where the State seems to be increasingly oriented to leave private parties to bear the costs of construction of infrastructure works, which in the past were typically borne by public enti- ties (e.g. State, Regions, Port Authorities), it is self-evident that, should terminal operators opt to rely on the entities interested in providing the necessary financial resources (be they investment funds or financial institutions active in the lending market), the role of such lenders will be increas- ingly central to the success of a project.
This leads us to some further considerations: are the current State concession deeds capable of rising to this new challenge? In other words, do the current State concession deeds regulate also those aspects which lenders deem critical to a positive assessment of the «bankability» of a pro- ject?
A first, general, aspect to be considered is, inter alia, the fact that a number of management and construction concessions do not include any of the provisions usually envisaged for similar pro- jects associated to management and construction concessions that are of particular relevance and interest to lenders (e.g. economic and financial balance, terms and conditions for reviewing the economic and financial plan, banks’ takeover rights).
Of no less significance is the fact that, in the matter of penalties and extra-costs too, the provi- sions usually applied by many Port Authorities do not regulate the consequences of any (i) delay in the submission of projects or execution of works (penalties); (ii) events not imputable to the con- cession holder (force majeure events, changes in law), or (iii) costs arising from interferences and/or extra-costs arising from such events.
The absence of a satisfactory discipline on termination value in case of termination due to a fact imputable to a concession holder is likewise an aspect of particular relevance to lenders.
As far as permits and authorisations are concerned, concessions often contain only a standard clause providing that the terminal operator holding a concession shall be responsible for obtaining all the necessary authorisations needed for the implementation of a project; for the purposes of bankability, however, it is likely that those interested in providing the necessary financial re- sources will need some clarifications concerning the impact that any requirements imposed by any authority competent in the approval process may have on the project (in terms of delays or extra- costs).
Last but not least, the issue of work maintenance is likewise crucial: besides any distorting effect that may arise from the existence of different regulations adopted by Port Authorities in the mat- ter (i.e. certain terminal operators are responsible for both ordinary and extraordinary mainte- nance, others for one of them only, etc.), which often escape the censorship of the parties con- cerned due to the asymmetry of the existing regulations, what lenders may need for bankability purposes is the standard definition of performance to be taken into account for assessing any «non-maintenance» or «poor maintenance» in order to limit the discretion in assessment of Port Authorities.
Further regulation might be required in connection with mortgage aspects associated with the works to be done by concession holders through the private funds issued, or in connection with insurance obligations. Such aspects are likewise regulated by commonly used standard clauses, which might however need to be reviewed.
In a nutshell, if the State intends to give an increasingly crucial role to private parties in order to save the public purse, it should at least acknowledge that the success of its plans might remain on- ly on paper if the current concession deeds do not meet the requirements of the financial market, which will increasingly become a major player in the development of Italian ports in light of the economic importance of a number of projects.