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?
No specific approvals are required for the port operator to commence operations following construction, as the right to operate a terminal is given by the concession contract and the terms of concession.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?
The services typically provided by the port operators are pilotage, towing, mooring and unblocking, stowage on board ships and at berth, handling of cargo, storage, fuelling, water and electricity supply to ships, among others. The port authority may, unless the concession contract allocates those services to the private port operator, provide the following services: safety of the port area, inspection of vessels, goods and equipment in the port area and creation of public interest easements.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?
Ensuring access to the hinterland (rail, road, etc) is an obligation of the government and the port authority have no responsibilities in that regard. The operator only has obligations to perform works on land or water in the area of the concession, namely construction works, maintenance works, dredging and provision of any other services, activities or works that have been duly authorised for achieving the purpose set out in the concession contract.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?
The powers to inspect port operations are established in the general legislation and in the concession contract.
The causes for suspending or terminating those operations must be specified in the concession contract. Although the law lists some causes that can lead to the suspension or termination, namely material breach of contract or in the implementation of its object, abandonment of the performance of the activity agreed in the contract, transfer to a third party of the rights and obligations of the port operator or the operation of another business, failure to pay fees or other payments established in the contract and default in the provision of the agreed services.
Before suspending or terminating the port operations, the port authority must notify the port operator in writing to comply with its obligations and remedy any outstanding default and to compensate the port authority for any damages resulting from the breach of contract, within a period not exceeding 120 days.
If the port operator fails to comply with its obligations or to repair the damages caused by its non-compliance by the deadline indicated, the port authority may, unless another procedure has been foreseen in the concession contract, terminate the contract immediately by written communication to the port operator.Port access and control
In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?
The port authority may take over the port operations if protection of public interest, public order and public safety so justifies, despite there is no default or responsibility of the port operator. In this case, the operator is entitled to receive a compensation, considering the remaining time of the contract for the recovery of investments, if another principle has not been stipulated in the contract.
See the causes indicated in the response 33.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 port operator may be subject to penalties in case of failure to operate and maintain the port as agreed and, if such failure is material and not remedied or capable of being remedied, the port authority has the right to terminate the contract. The operator is, in any case, subject to the general rules of civil liability and, therefore, may be responsible for all damages incurred.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?
The concession contract can foresee the terms under which the reversion and transfer of assets will take place.
In accordance with applicable law, after termination of the concession the operator must transfer all the assets necessary to operate and maintain the terminal to the port authority, including those that it has received at the beginning of the contract and those bought or construed by the concessionaire. These assets shall revert free of charge and in good working condition and the operator has no claim to compensation or retention unless otherwise stated in the contract. The operator is, however, entitled to compensation or reimbursement for investments previously agreed upon and realised but not yet amortised.