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?
There are two different licences enabling private ports to operate:
- a temporary licence: this authorisation is granted by a decree of the executive branch for a period of five years; and
- a permanent licence: this is the final authorisation granted by a decree of the executive branch when a private port has been authorised to operate continuously for a period of 10 years.
Temporary licences may be suspended or terminated by the competent authorities for breach of specific circumstances detailed in Decree No. 14,402/01.
The application process can last up to two months.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?
In private ports, the operator provides and charges for all sorts of services for importers, exporters, ship owners and shipping lines.
For importers and exporters, these services would include, among others:
- container storage;
- storage and stock control of general cargo in a customs warehouse;
- storage and stock control of general cargo in a temporary storage warehouse;
- customs inspection;
- coordination of import deliveries;
- electricity supply for refrigerated cargo;
- monitoring of the cold chain;
- multimodal transportation of containers across the country; and
- special services for cargo, packaging, labelling, car and truck storage, and care.
For ship owners, the services would typically consist of:
- stevedoring of containers and general cargo;
- quay assistance;
- potable water supply;
- electricity supply;
- general supply services; and
- mooring area.
For shipping lines, the port would normally provide:
- stowage of containers and general cargo;
- container storage;
- container inspection;
- stock information; and
- sealing and reporting.
For special cargo, the ports would normally provide:
- stowage of cargo;
- crane services;
- container transport; and
- transport of heavy and oversized cargo.
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?
The government would typically cooperate in providing access to the terminal by road. The operator is not compelled or bound to finance public infrastructure outside the port perimeter, but nothing prevents the owner from proposing that the local municipality sign agreements to finance roads.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?
See question 34.Port access and control
In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?
Owners must operate their ports in accordance with the Private Port Statute and its regulatory Decree (No. 14,402/01).
The Merchant Marine conducts regular and ad hoc audits throughout the year to monitor compliance with local regulation. If this competent authority acknowledges the existence of irregularities, or any breach or violation of the rules governing the licensing and operation of private ports, the Merchant Marine would instruct the port to comply with regulations or rectify the irregularity.
If, within 10 days of receipt of the instruction, the private port does not respond, the Merchant Marine will proceed to apply a preventive suspension of the activities of the terminal. The preventive suspension of port activities can be extended for a period of 10 to 90 days, in accordance with the gravity of the irregularities. The suspension would normally last until such irregularities are remedied or rectified by the port.
Cancellation of the licence is the most severe sanction. It is conducted by the Merchant Marine using a summary process. A report detailing and stating the irregularities is then raised to the MOPC, which finally takes the decision of cancelling or not cancelling the licence.
All administrative measures and decisions taken by the Merchant Marine regarding the suspension or cancellation of licences can first be appealed to the MOPC and then to ordinary justice in the administrative jurisdiction.
Decree No. 14,402/01 considers the following conduct as serious offences:
- breach of the conditions that were taken into account to grant the licence;
- operation of the port outside the scope of the activities authorised and granted by the respective licence;
- failure to satisfy, provide and secure within the port area the safety of navigation, port security, health measures, environmental protection, customs and immigration controls;
- violation of the rules of free competition, such as exercising monopolistic or unfair practices; and
- in general, breach of the provision of Law No. 419/94 and the Decree No. 14,402/01.
Recidivism of any of the above offences by the operator might constitute sufficient ground for application of the penalty of cancellation of the licence.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?
As described, the first remedy would be the provisory suspension of the licence and the activities by the Merchant Marine, followed by the cancellation of the licence by the MOPC.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?
In the development of PPP projects, the private participant may use different types of goods, namely:
- Real property of the contracting authority or other public entities, existing or to be created or supplied during the contract term, which the contracting authority gives the private participant the right to use. In such cases the private participant is obliged to return these goods to the administration at the termination of the contract.
- Property owned by the private participant, existing at the time of signing the PPP contract, or to be created or provided during the contract term. The property owned by the private participant might be transferred to the contracting administration or removed from the project area at the end of the term, depending on the specific terms of the PPP contract.