Port operations

Approval

What government approvals are required in your jurisdiction for a port operator to commence operations following construction? How long does it typically take to obtain approvals?

The agencies responsible for granting permits for port operators are the APN and DICAPI. The permits that should be obtained are as follows:

  • a permit for temporary use of the water area or coastal land for port entitlements;
  • the granting of a port concession;
  • an inspection request for a percentage of work completion and the corresponding certificate; and
  • an inspection request for work completion (100 per cent) and the corresponding certificate.

The process for obtaining these permits usually takes around 60 days, according to the Text of Administrative Proceedings of the APN. However, owing to the usual administrative burden, these proceedings may take about 90 days.

Typical services

What services does a port operator and what services does the port authority typically provide in your jurisdiction? Do the port authorities typically charge the port operator for any services?

A port operator and the port authority can provide the following services:

  • basic port services: fuelling, storage, docking and undocking of ships, supplies, diving, piloting, waste collection, towing, passenger transport, loading and discharge of cargo; and
  • general port services: port traffic control, cleaning, sweeping, lighting, signalling, safety and security.

Apart from these services, where the state may cooperate with the private investor, the government may make the following commitments:

Definitive commitments

These are the payment obligations assumed by the government as a consideration of the activities established in a PPP contract. They include the payment of:

  • periodical instalments to compensate for the investments incurred by the private sector. In practice, they are called ‘annual payment for works’ or ‘retribution for investments’; and
  • periodical investments intended to compensate for operation and preservation costs incurred by the private sector for the provision of the service. In practice, they are called ‘annual payment for maintenance and operation’ or ‘retribution for maintenance and operation’.
Contingent commitments

These are the potential payment obligations of the government to the private sector for the financial and non-financial guarantees that the latter may have issued.

Definitive and contingent commitments are usually included in concession contracts, to cover the risks inherent to the project.

However, the APN can charge the port operator for the basic port services, as long as this has been agreed in the concession contract.

Access to hinterland

Does the government or relevant port authority typically give any commitments in relation to access to the hinterland? To what extent does it require the operator to finance development of access routes or interconnections?

No, the government and the APN rarely grant commitments in relation to access to the hinterland. In most cases, the APN and the Ministry of Transport and Communications do not include a section regarding finance development of access routes or interconnections in the concession agreement.

Suspension

How do port authorities in your jurisdiction oversee terminal operations and in what circumstances may a port authority require the operator to suspend them?

In Peru, the authority that oversees the operations at port terminals is the APN.

As established in Supreme Decree No. 410-2015-EF, which regulates the delivery of concessions to the private sector in public infrastructure and public services, the concessionaire can be suspended for the following reasons:

  • foreign war, civil war or force majeure preventing the implementation of the work or service;
  • partial destruction of the work or its elements, so that it is impossible to use it as stated in the contract;
  • any cause agreed in the concession contract;
  • fundamental contractual breach by the state; or
  • unilateral termination by the state due to public interest.

The suspension extends the term of the concession for the period of the suspension cause.

Port access and control

In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?

As established in Supreme Decree No. 410-2015-EF, a port terminal concession will expire on the following grounds:

  • by the deadline agreed when the concession was awarded;
  • for the fundamental breach of the concessionaire’s obligations, which constitute grounds for termination of the contract;
  • by agreement between the state and the concessionaire;
  • by the complete destruction of the work; or
  • for other causes stipulated in the contract.
Failure to operate and maintain

What remedies are available to the port authority or government against a port operator that fails to operate and maintain the port as agreed?

The resource available for the port authority to act against the port operator when they fail in the operation and maintenance of the port, as agreed between the parties in the concession agreement, is the execution of the penalties set out in such agreement and, additionally, in the provisions of the Peruvian Civil Code.

The state may also submit financial controversies arising from concessions to national or international arbitration, in accordance with the provisions of article 69 of the Political Constitution of Peru.

Transferrable assets

What assets must port operators transfer to the relevant port authority on termination of a concession? Must port authorities pay any compensation for transferred assets?

At the end of the concession, port operators must transfer to the state all goods that have become integral parts of the concession and receive compensation for the assets transferred, according to the clauses of the concession contract.