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  • 1.

    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?

  • 2.

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

  • 3.

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

  • 4.

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

  • 5.

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

  • 6.

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

  • 7.


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

  • 8.

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

  • 9.

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

  • 10.

    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?

  • 11.


    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?

  • 12.

    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?

  • 13.

    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?

  • 14.

    Foreign participation
    Are there restrictions on foreign participation in port projects?

  • 15.

    Legislation
    Is the legislation governing procurement and PPP general or specific?

  • 16.

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

  • 17.

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

  • 18.

    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?

  • 19.

    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?

  • 20.

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

  • 21.

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

  • 22.


    On what basis can the term be extended?

  • 23.

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

  • 24.

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

  • 25.

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

  • 26.

    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?

  • 27.

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

  • 28.


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

  • 29.


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

  • 30.

    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?

  • 31.

    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?

  • 32.

    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?

  • 33.

    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?

  • 34.

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

  • 35.

    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?

  • 36.

    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?

  • 37.

    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?

  • 38.

    Transferring ownership interests
    Are ownership interests in the port operator freely transferable?

  • 39.

    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?

  • 40.

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

  • 41.

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

  • 42.

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

  • 43.

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

  • Updates and trends

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Law Offices Carl Kincaid, was founded in 1932 and has become one of the most traditional law offices in Brazil.

View more information about Kincaid | Mendes Vianna Advogados


Rio de Janeiro
Av. Rio Branco
01, 14 andar
Centro
Rio de Janeiro
Brazil
T: +55 21 2276 6200


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