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Module 4

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Module 4 Legal Tools for Port Reform Module 4 Port Authority and Terminal Operations Full Concession Agreements Port Regulation Legal Tools for Port Reform ... – PowerPoint PPT presentation

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Title: Module 4


1
Module 4 Legal Tools for Port Reform
2
Legal Tools for Port Reform
  • Introduction and Overview
  • Port Authority and Terminal Operations
  • Full Concession Agreements
  • Port Regulation

3
Objectives of a Ports Law
  • Create an institutional framework and a business
    framework to develop and manage seaports, through
    the establishment of port-related management and
    regulatory bodies
  • Set operational conditions for private operators
  • Regulate organizational and financial
    relationships between public institutions and the
    maritime administration

4
Drafting a Ports Law
  • Establishment of Port Authorities public or
    corporate entities ?
  • Creation of a solid basis to delineate port
    functions and responsibilities, through a core
    set of provisions
  • preface objectives of the reform ? transfers
    of rights ? organizational, financial and fiscal
    relations between related public institutions ?
  • definitions of critical functions, features of
    port administration bodies from service ports
    to landlord ports
  • objectives and functions of the port authority
  • land management
  • conflict of interests rules

5
Corporatised Ports Special considerations
  • Share issuance How will the government
    exercise influence on the Ports Authority ? How
    will the shares be distributed ?

- Public Majority
- Golden share
  • Capitalization How will it be effected ?

- Transfer of government-owned assets
- Land transfer
- Equity injection
6
Legal Tools for Port Reform
  • Introduction and Overview
  • Port Authority and Terminal Operations
  • Full Concession Agreements
  • Port Regulation

7
Important issues (1/3)
  • Separation between public oversight and
    commercial operations a Port Authority should
    not be directly involved in terminal operations.
  • It may exercise licensing and regulatory
    functions with respect to marine and port
    services and facilities through Public license ?
    Concession ? Leasehold contract ?
  • Marine Management

- National maritime administration
- Port Authority (when NOT corporatised)
8
Important issues (2/3)
  • Regulation of other functions

- Navigation aids
- Infrastructure and assets maintenance
- Police powers, etc
  • How will the Port Authoritys financial powers be
    regulated ?
  • Guarantee of financial autonomy balanced
    budget, free tariff determination

9
Important issues (3/3)
  • To what extent will the Port Authoritys
    liability for the effects of default, negligence
    or any other wrongful act be limited ?
  • Role of National Port Commission

- Strategic planning
- Sector regulatory framework
10
Implementation problems
  • Effects of port reform on the existing work force
  • Valuation of assets and the Capitalization of a
    new Port Authority
  • Need to replace/retrain top management
  • Creation of a clear definition of the port area

11
Legal Tools for Port Reform
  • Introduction and Overview
  • Port Authority and Terminal Operations
  • Full Concession Agreements
  • Port Regulation

12
Definition of a Concession
Series of contracts that define the relationship
between the Government and the private sector
regarding the right to exploit port land and
facilities as well as the obligation to construct
port infrastructure and superstructure.
13
Full concession and BOT schemes
  • Why choose a full concession scheme, rather than
    a leasehold or a land rent scheme ?
  • Which arrangement to select ? BOT ? BOOT ? BTO ?
    WBOT ?

14
Full concession, lease and rent contracts (1/3)
15
Full concession, lease and rent contracts (2/3)
16
Full concession, lease and rent contracts (2/3)
17
Contents of a typical Concession Agreement (1/6)
  • Definitions
  • Appointment of the Operator
  • Term of the Agreement
  • General Rights and Obligations of the Operator
  • General Rights and Obligations of the Port
    Authority
  • Transfer of Rights, Obligations and Assets
  • Performance Parameters
  • Transfer of Employees

18
Contents of a typical Concession Agreement (2/6)
  • Force Majeure
  • Liability for Loss and Damage of Goods
  • Lease of Facilities
  • Activities Permitted by the Authority
  • Liability for Damage
  • Regulations by the Authority
  • Access to the Site
  • Miscellaneous Conditions

19
Contents of a typical Concession Agreement (3/6)
  • Construction and maintenance
  • BOT Arrangements
  • Investments under a BOOT Arrangement
  • Functional and Technical Design
  • Design and Construction Flaws
  • Building Conditions
  • Construction under a BOT Arrangement
  • Zero Date

20
Contents of a typical Concession Agreement (4/6)
  • Drop Dead Date
  • Extension Events
  • Completions Tests and Take-over
  • Handback and Transfer of Facilities
  • Lenders Security
  • Change in Law
  • Freedom to Set Tariffs
  • Concession Fee

21
Contents of a typical Concession Agreement (5/6)
  • Security and Safety
  • Access
  • Unclaimed Cargoes and Containers
  • Taxes
  • Information and Communication
  • Insurance and Indemnity
  • Termination and Prolongation

22
Contents of a typical Concession Agreement (6/6)
  • Option to Continue
  • Termination due to non-compliance
  • Bankruptcy
  • Expiry of Concession
  • Arbitration
  • Costs
  • Governing Law

23
Legal Tools for Port Reform
  • Introduction and Overview
  • Port Authority and Terminal Operations
  • Full Concession Agreements
  • Port Regulation

24
General elements of Port Regulation
  • Vessel Traffic Management
  • Pilotage
  • Order and Safety in the Port
  • Reporting and communication
  • Transport and handling of dangerous cargoes
  • Miscellaneous other subjects inquiries in case
    of damage, cleanliness of basins, passenger
    traffic facilities, waste reception facilities
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