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General

Key ports

Which are the key ports in your jurisdiction and what sort of facilities do they comprise? What is the primary purpose of the ports?

The most relevant port in Argentina is Puerto de Buenos Aires (Port of Buenos Aires). This port is divided into three different operative units offering the following facilities:

  • Puerto Nuevo: container freight station, container yard, crane, open storage;
  • Dock Sur: mobile crane, container freight station, container yard, reefer plugs, gantry crane, pipeline, tanks, grain elevator, silo; and
  • Puerto Sur: ferry station and dry dock.

Moreover, all along the country there are significant ports. In the South Pampa Area, the main ports are:

  • Bahía Blanca: mobile crane, crane, container yard, reefer plugs, gantry crane, pipeline, silo, tanks, grain elevator, open storage and cold storage;
  • Mar del Plata: container yard, pipeline, silo, tanks, grain elevator, belt conveyor, open storage, cruise terminal and floating dock;
  • La Plata: shipyard, container yard, reefer plugs, granty crane, pipeline, silo, tanks, belt conveyor, crane and open storage; and
  • Quequén: pipeline, belt conveyor, silo, tanks open storage, grain elevator.

Along the Hidrovía Paraguay-Paraná (Paraguay-Paraná Waterway), there are a great variety of important ports, such as:

  • Santa Fe: crane, open storage, pipeline, tanks, warehouse, belt conveyor and grain elevator;
  • San Nicolás: pipeline, tanks, silo, belt conveyor, grain elevator, crane, mobile crane and open storage;
  • San Lorenzo: pipeline, silo, tanks and belt conveyor; and
  • Rosario: grain elevator, belt conveyor, silo, pipeline, tanks, open storage and crane.

In Patagonia, in the southern region of the country, the most relevant ports are:

  • Comodoro Rivadavia: pipeline, warehouse, container yard and open storage;
  • Puerto Madryn: belt conveyor, crane and cruise terminal; and
  • Ushuaia: reefer plugs, tanks, cruise, pipeline, warehouse, container yard and open storage.

Reform

Describe any port reform that has been undertaken over the past few decades and the principal port model or models in your jurisdiction.

The enactment of the Federal Law on Ports No. 24,093 in 1992 - implemented by Executive Decree No. 769/1993 - entailed a major reorganisation of Argentina’s port regime. The old scheme was based on a centralised state-level port authority agency, the Administración General de Puertos (General Ports Administration (GPA)), which regulated, controlled, administrated and operated the ports. The new system is aimed at decentralising port administration and prioritising private entities’ intervention with their operations. Thereby, the Executive Power relinquished the direct control it had exercised over ports, empowering private entities and/or provincial governments. Currently, the GPA is the authority in charge of controlling and regulating Puerto Nuevo.

State development policy

Is there an overall state policy for the development of ports in your jurisdiction?

There are certain general rules established in Law No. 24,093, such as promotion and realisation of the modernisation of each of the ports at the federal level. However, there is not a clear single, unified state policy aimed at the port development.

Green ports

What ‘green port’ principles are proposed or required for ports and terminals in your jurisdiction?

With reference to ‘green port’ principles, it should be noted that prior to obtaining its operation authorisation, ports have to prove that they abide by the environmental regulation established by the governmental offices of their corresponding jurisdiction. In addition, the Coastguard (Prefectura Naval Argentina) will analyse navigation aspects as well as the port’s pollution and environmental impact. In addition, every port administration will set out their green policies.

At a federal level, there are several general environmental laws and rules that will be applicable to ports and terminals (eg, the general environmental framework set forth under Law No. 25,675 and the Hazardous Waste Law No. 24,051).

Legislative framework and regulation

Development framework

Is there a legislative framework for port development or operations in your jurisdiction?

Argentina is a federal country with three levels of government: federal, provincial and municipal. Certain ports fall under federal jurisdiction (eg, Puerto Nuevo) while others fall under provincial jurisdiction. Hence, the legislative framework applicable to a port will vary according to its jurisdiction. However, pursuant to Law No. 24,093, all industrial and commercial ports that involve international or interprovincial commerce must be approved by the federal government.

Puerto Nuevo will be the object of a tender process in 2019 but the modality to be adopted is yet unknown. The most probable scenario is that Puerto Nuevo’s terminal will be subject to a concession agreement. Public-private partnership (PPP) is novel in Argentina and not usually applied at present.

Regulatory authorities

Is there a regulatory authority for each port or for all ports in your jurisdiction?

At a federal level, the undersecretary of ports and navigable waters, a dependent of the Ministry of Transport (Subsecretaría de Puertos y Vías Navegables) was designated as the Federal Port Authority by Executive Decree No. 769/1993. The Coastguard also has regulatory power over all Argentine ports.

Furthermore, ports can be subject to provincial regulatory authorities, depending on each of the provinces’ dispositions in this respect.

What are the key competences and powers of the port regulatory authority in your jurisdiction?

The key power of the undersecretary of ports and navigable waters is to carry out the proceeding for granting administrative ports authorisations to operate. Authorisations will be ultimately issued by the Ministry of Transport (as further explained in questions 26 and 30).

The Coastguard is in charge of ports’ safety matters and ports’ logistics and practical issues.

Harbourmasters

How is a harbourmaster for a port in your jurisdiction appointed?

Each port will design its own administrative structure, therefore there is not a single and unified rule for appointing harbourmasters.

At the federal level it is a political position and the president of the GPA is appointed by the Ministry of Transport.

Competition

Are ports in your jurisdiction subject to specific national competition rules?

Ports are subject to general antitrust rules. Concession contracts related to Puerto Nuevo’s terminals are subject to specific provisions regarding competition.

Tariffs

Are there regulations in relation to the tariffs that are imposed on ports and terminals users in your jurisdictions and how are tariffs collected?

Pursuant to Law No. 24,093, each port is free to establish tariffs at its own convenience. It is not allowed to charge for services that are not rendered.

Are there restrictions relating to the currency applied to the tariffs or to any fees that are payable by a port operator to the government or port authority? Are any specific currency conditions imposed on port operators more generally?

There are no restrictions relating to the currency applied to the tariffs and fees payable to the government or the port authority. Tariffs and fees payable to the government or the port authority are mainly stipulated in US dollars, payable in Argentine pesos in accordance with the current exchange rate published by Banco de la Nación Argentina.

Public service obligations

Does the state have any public service obligations in relation to port access or services? Can it satisfy these obligations through a contract with a private party?

Law No. 24,093 does not impose any obligation on the state in relation to port access or services. It is unusual for both the federal and provincial authorities to grant concessions to private third parties to operate port facilities.

Nevertheless, Argentina is a signatory member of the International Convention for the Safety of Life at Sea, and thus bound to apply the Ship and Port Facilities Security Code (ISPS Code). As such, the Coastguard (the authority in charge of applying ISPS) is bound to ensure that every port in Argentina complies with the ISPS Code.

Joint ventures

Can a state entity enter into a joint venture with a port operator for the development or operation of a port in your jurisdiction? Is the state’s stake in the venture subject to any percentage threshold?

Yes. There is no percentage threshold.

Foreign participation

Are there restrictions on foreign participation in port projects?

No. However, under Argentina’s federal legal framework (Law Nos. 27,437 and 18,875, together the ‘Buy Argentine’ regime) most federal public entities must give certain advantages to Argentine goods or companies in their procurement procedures. Certain provinces have similar regulations.

However, even when Buy Argentine is applicable, it does not prevent foreign entities exercising control over the project company. If 80 per cent of the management of the project company is Argentine, such legal entity will be deemed local.

Public procurement and PPP

Legislation

Is the legislation governing procurement and PPP general or specific?

Each jurisdiction has specific rules regarding procurement.

Regarding Puerto Nuevo, the GPA issues its own regulations.

Regarding PPP, rules are general (as set forth in Law No. 27,328, which was passed in November 2016, and Decree No. 118/2017, issued on February 2017). The PPP framework was conceived as an alternative contractual form, thus the Public Works Law No. 13,064, the Law on Concession of Public Works No. 17,520, and the General Public Procurement Decree No. 1,023/01 are not applicable to PPP agreements.

The PPP framework provides that the following may be subject to PPP transactions:

  • any category of infrastructure projects;
  • activities and services;
  • productive investments;
  • applicable investigations; and
  • technological innovations.

Hence, ports may be constructed by way of PPP agreements.

Proposal consideration

May the government or relevant port authority consider proposals for port privatisation/PPP other than as part of a formal tender?

Yes, by way of private initiative. Administrative contracts can be awarded following different procurement proceedings; one of those proceedings is the private initiative.

The ‘private initiative’ legal framework set out in General Public Procurement Decree No. 1,023/01 and the Procurement Manual with the Federal Administration, Disposition No. 62-E/2016, allows private parties to make proposals to the federal government to carry out procurement processes.

Under the legal framework currently in force, the private initiative should be followed by a competitive process (public bidding or public tender). However, the government party must provide for a stipend of 1 per cent of the amount of the relevant project, for the author of a private initiative that does not succeed in the relevant public bidding or public tender.

Dock Sud Port, for example, was awarded as part of a private initiative.

Joint venture and concession criteria

What criteria are considered when awarding award port concessions and port joint venture agreements?

This will depend on the rules that govern each procurement process in each jurisdiction. The most commonly used procurement process is public bidding. Generally, the agreement will be awarded to the most suitable offer.

The evaluation criteria used to award a PPP at the federal level are set according to the most convenient offer for the public interest, based on the conditions established for the bid or tender in the report issued by the PPP unit.

The bidding documents’ guidelines must show that its criteria favour micro, small and medium enterprises and local firms over foreign entities (as established in Law No. 25,300). The PPP Unit can remove this privilege, if it can be justified by means of a substantiated report into the project.

Pursuant to section 12 of Law No. 27,328, biddings that include the provision of goods and services must fulfil the provisions of the Buy Argentine regime (ie, at least 33 per cent of such goods and services must have local components). Therefore, the preferences set forth in favour of Argentinean goods and services will be applicable.

Model agreement

Is there a model PPP agreement that is used for port projects? To what extent can the public body deviate from its terms?

There is no model PPP agreement, since the PPP legal framework is very recent (see question 15).

Approval

What government approvals are required for the implementation of a port PPP agreement in your jurisdiction? Must any specific law be passed in your jurisdiction for this?

PPP agreements are unusual in port concessions, as the PPP framework was created very recently (see question 15).

Regarding ports, the general framework governing PPP agreements could be applicable, but during this year projects launched under the PPP framework have involved mainly housing and roads projects.

Projects

On what basis are port projects in your jurisdiction typically implemented?

Generally, port projects are implemented under concession agreements.

Government contracts for the concessions to use public property have been traditionally considered administrative by virtue of their object and purpose. Such reasons are not defined under Argentine law and should be construed on a case-by-case basis. Nevertheless, in case an administrative agreement is terminated due to public interest reasons, the administrative decision terminating the agreement must be reasonably grounded in the applicable legal framework and the relevant facts.

The rules that apply to administrative contracts include the following:

  • The government has the power to unilaterally amend the agreement, albeit compensating the contractor for any losses caused by such amendment, but not for loss of profits.
  • The government has the unilateral power to terminate the contract for reasons of public interest compensating the losses caused to the contractor, but not for loss of profits.
  • The contractor cannot suspend work owing to the government’s default in meeting its obligations, unless said default is of such magnitude that it prevents the contractor from performing its obligations.

These principles have been applied by case law regardless of the provisions of the relevant legal framework or agreement in administrative contracts executed by the federal, provincial or municipal governments. Thus, whenever there is an investment that involves an administrative contract or administrative licences, permits or authorisations, these kinds of risk will be present. These are political risks that may affect the relevant administrative contracts and administrative decisions, regardless of their particular wording or background.

It has also been accepted that administrative contracts can be terminated by the government if, after execution, they are considered to be illegal or if it is concluded that they have been signed in contravention of the applicable regulatory framework. This has led the Argentine Federal Supreme Court to determine that a provincial government who had entered into an agreement with a private party without following a competitive procurement process (as imposed by the applicable legal framework) was allowed to refrain from paying the private party who had performed its obligations on the basis that the agreement was null and void (in re Ingeniería Omega Sociedad Anónima v Municipalidad de la Ciudad de Buenos Aires, 5/12/2000, Fallos: 323:3924).

In both cases where an administrative agreement is terminated owing to public interest reasons or terminated on the basis that it is null, the administrative decision which terminates the agreement must be reasonably grounded in the applicable legal framework and the relevant facts.

Term length

Is there a minimum or maximum term for port PPPs in your jurisdiction? What is the average term?

There is no minimum term, but the maximum term cannot exceed 35 years.

On what basis can the term be extended?

If the term is not awarded under the PPP framework, the relevant bidding terms and conditions can provide the possibility of an extension. However, when the PPP framework is used, the term cannot be extended.

Fee structure

What fee structures are used in your jurisdiction? Are they subject to indexation?

In respect to federal ports there is a fee for the use of the port, paid by the concessionaire to the government, and a fee for loads (imports or exports), paid by the charger to the concessionaire, who in turn ensures payment of a minimum fee to the GPA.

The authorities set the maximum fare. Generally the currency is set in American dollars, on a fixed basis and therefore cannot be indexed. However, authorities regularly review the maximum fare.

In the case of privately owned ports, once they obtain the corresponding approvals, they are not obliged to pay fees.

Exclusivity

Does the government provide guarantees in relation to port PPPs or grant the port operator exclusivity?

Rules governing PPP are general (Law No. 27, 328 and Decree No. 118/2017) and do not address this matter. Current concession agreements generally exclude exclusivity.

Other incentives

Does the government or the port authority provide any other incentives to investors in ports?

The government grants tax incentives for investments in general. We are not aware of specific incentives to investors in ports.

Port development and construction

Approval

What government approvals are required for a port operator to commence construction at the relevant port? How long does it typically take to obtain approvals?

In order to be able to operate a port in Argentina, there are certain declarations, approvals and authorisations that must be obtained from the competent authorities.

At the federal level, pursuant to the Law No. 24,093, industrial and commercial ports that involve international or interprovincial commerce must be approved by the federal government.

The undersecretary of ports will carry out an administrative procedure, which includes the following steps: a preliminary declaration, a technical approval, and the final authorisation.

The preliminary declaration provides the terms and conditions pursuant to which the relevant project should be executed. Once the works have been approved by the preliminary declaration, the petitioner may begin construction.

Governmental agencies that have to review the information and documents submitted must file their reports within a 30-day term from the time their opinion has been requested. As explained in question 30, the undersecretary requires the assistance of different governmental agencies to analyse the information submitted by the petitioner.

Port construction

Does the government or relevant port authority typically undertake any part of the port construction?

There is no general rule but, for example, in the Port of Buenos Aires, the federal government is in charge of dredging access to the canal. The dredging works are currently carried out by a private third party.

Does the port operator have to adhere to any specific construction standards, and may it engage any contractor it wishes?

The port operator does not have to adhere to any specific construction standards other than observing security measures set out by the Coastguard. In principle, it may engage any contractor it wishes.

What remedies are available for delays and defects in the construction of the port?

This will depend on the particular agreement of the project.

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?

Once works and constructions authorised by an undersecretary of ports’ preliminary declaration are finished, there should be a request to the undersecretary for technical approval.

After the office confirms that the developer has complied with the preliminary declaration and that the works were properly executed, the technical approval is issued, allowing the developer to request the final authorisation. With the final authorisation, the requesting party will be able to operate the port.

It is not possible to assess exactly how long obtaining the final authorisation of the Ministry of Transport to operate the port will take. But it should be issued by the Ministry of Transport once the undersecretary has issued both the preliminary declaration and the technical approval.

To analyse the relevant information the undersecretary will require the assistance of different governmental agencies, including, among others, the Naval Hydrography Service, the Ministry of Defence, the Coastguard, the Customs Office and the Secretary of Transport.

The undersecretary must submit the request for the final authorisation (including the reports issued by the corresponding administrative agencies) to the Ministry of Transport, with 60 days from the petitioner’s request being filed.

However, the undersecretary of ports usually does not comply with the above mentioned deadlines. Requests for final authorisations are generally evaluated by the undersecretary over several months. In practice, administrative procedures before the undersecretary usually take more than one year.

Moreover, Law No. 24,093 does not impose any deadline on the Ministry of Transport to issue the decree that will grant the final authorisation. For this reason, the final authorisation may be delayed. However, the Customs Office may grant temporary and precarious authorisations allowing petitioners to perform customs operations on ports while the final authorisation is pending.

Once the decree granting the final authorisation is issued, the Ministry of Transport has to communicate this to the Federal Congress within 10 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?

Port operators generally provide the following services: charging and discharging, handling and storage of transported merchandise.

Port authorities typically charge for maintenance of the dock area in the Port of Buenos Aires.

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. Sometimes the concessionaire may provide access.

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?

Port authorities oversee terminal operations by requesting the filing of documentation and by conducting inspections. Suspension is unusual.

Port access and control

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

Takeover is unusual, since port authorities have free access.

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?

This will depend on the agreement. Usually, remedies are fines and termination of the agreement.

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?

Usually they must return the same assets they received, including those incorporated to the port.

Miscellaneous

Special purpose vehicles

Is a port operator that is to construct or operate a port in your jurisdiction permitted (or required) to do so via a special purpose vehicle (SPV)? Must it be incorporated in your jurisdiction?

This is not pursuant to the legal framework, but bidding terms and conditions usually request a specific subject matter in the agreement, as well as incorporation in Argentina.

Transferring ownership interests

Are ownership interests in the port operator freely transferable?

No, it is subject to approval of the corresponding port authority.

Granting security

Can the port operator grant security over its rights under the PPP agreement to its project financing banks? Does a port authority in your jurisdiction typically agree to enter into direct agreements with the project financing banks and, if so, what are the key terms?

It is possible because the legal framework applicable to PPP contracts allows it, but we are not aware of any attempts owing to the PPP framework being recently created (see question 15).

Direct agreements with financing banks are unusual.

Agreement variation and termination

In what circumstances may agreements to construct or operate a port facility be varied or terminated?

final authorisations do not expire. A final authorisation would be in force as long as the port keeps operating and the operator complies with the corresponding technical and operational requirements.

However, as with all administrative decisions, the final authorisation may be revoked owing to public interest reasons.

Causes to terminate an agreement will likely be set forth in the agreement itself. Commonly, they include:

  • the concessionaire infringes the obligations established in the contract;
  • the concessionaire incurs grave fault in the performance of the service or exploitation;
  • as a result of a fault caused by wilful misconduct, damage is caused to the land or to the environment, duly certified by the competent authority;
  • the concessionaire does not respect the use of the land accepted by the government;
  • the concessionaire transfers the contract without the authorisation of the government; and
  • default in the payment of fees.

In addition, agreements to construct or operate a port facility are usually concession agreements (see question 20).

Concession agreements for the use of goods of the public domain in Argentina are deemed administrative contracts and are therefore subject to administrative law. Therefore, the rights of the private contractor are subordinate to those of the administration, which has, among others, the power to unilaterally terminate the contract and modify its terms due to public interest reasons.

The ownership of the land would eliminate the risk of revocation and/or annulment of the concession agreement. However, there are several restrictions regarding ownership of land zoned as rural (agrarian), and foreigners are not allowed to acquire (directly or through acquisition of shares) rural land located next to ‘permanent and significant bodies of water’. The Rural Land Regime (established by means of Law No. 26,737 - Regime for the Protection of the Federal Domain over the Property, Possession or Tenancy of Rural Lands and Decree No. 274/2012) does not expressly provide that the prohibition to own land next to permanent bodies of water is limited to ‘rural’ lands. However, the general scope of the Rural Land Regime is limited to ‘rural’ lands.

In principle, a company is considered to be ‘foreign’ if 51 per cent of its stock is owned or controlled (directly or indirectly) by a foreign shareholder.

The restrictions imposed by the Rural Lands Regime include:

  • prior approval for the sale or purchase of rural lands by individuals or legal entities deemed as ‘foreign’ under the Rural Lands Regime;
  • limits to the extension of rural lands that can be acquired by individuals or legal entities deemed as ‘foreign’ under the Rural Lands Regime; and
  • complete ban on the acquisition of certain rural lands by individuals or legal entities deemed ‘foreign’ under the Rural Lands Regime (eg, in case of rural land located next to a permanent body of water).

Although it is not entirely clear in the Rural Land Regime, its enforcing agency, the Federal Registry of Rural Lands, has construed that the above mentioned restrictions are applicable to the transfer of shares of legal entities owning rural lands directly or indirectly.

Among others, the Rural Lands Regime sets forth the obligation to report any modifications on the ownership of capital stock of any company that owns a rural property (including transfer of shares).

The Rural Lands Regime is only applicable to the acquisition of ownership or possession over rural land. In principle it is not applicable to the tenancy of rural land.

Because concession agreements do not grant ownership or possession of rural land, but its tenancy, the Rural Lands Regime should be considered in case the operation of the port or terminal includes the acquisition of ownership over rural land.

Contractual breach

What remedies are available to a government or port authority for contractual breach by a port operator?

This will depend on the agreement. Usually, remedies are fines and termination of the agreement.

In case of termination of the agreement, the concessionaire would first have to exhaust administrative remedies through the lodging of the relevant administrative appeals to challenge such decision. The specific appeal to be submitted and the timing of the proceeding would depend on the conduct of the government as regards the termination of the agreement and its grounds.

Once the administrative proceedings are exhausted, the concessionaire could challenge the decision to terminate the agreement before judicial courts.

While exhausting the administrative remedies, the concessionaire might be allowed to request an injunction before the courts in order to suspend the effects of the decision to terminate the agreement.

Despite of the chances of successfully challenging the decision to terminate the agreement, judicial rulings are not directly enforceable against public entities and their assets cannot be foreclosed as private parties’ assets. This kind of judicial procedures may last for more than 10 years.

In case of termination due to public interest reasons, compensation for loss of profits is seldom acknowledged.

In the event of revocation foreign investors could seek recovery of damages if certain conditions are complied with through an international arbitration proceeding (ie, as allowed under the bilateral investment treaty).

Governing law

Must all port PPP agreements be governed by the laws of your jurisdiction?

PPP agreements are unusual because the applicable framework is very recent (see question 15). Concession agreements are the usual basis on which port projects are typically implemented, and these agreements are subject to Argentinean law.

Disputes

How are disputes between the government or port authority and the port operator customarily settled?

Generally, disputes are settled by local courts.

Updates and trends

Updates and trends

Updates and trends

Pursuant to Law No. 27,445, which modified Law No. 24,093, it is now the Ministry of Transport that is in charge of issuing the port authorisations.

Since the term of the current concession agreements of the Buenos Aires Port are elapsing in the next couple of years (if they are not extended), the GPA has announced that a public bidding is going to be launched in order to award the concession of the Buenos Aires Port.