The significance of applying the same rules to port operators within a port system

That trite phrase "measure with the same yardstick" that can be said to have a biblical imprint, we borrowed it to propose a hypothesis linked to port management. Along these lines, the premise is that the same rules of the game should be applied to all port operators within a port system, without exception, so that the system is coherent, predictable and safe; and this implies expelling the "double standard" from the system. Proposed by the lawyer, arbitrator and professor of Maritime Law, José Antonio Pejovés.

As he points out, when we talk about port systems, we generally refer to an abstract articulation of people, infrastructure and rules. He explains in this regard that in modern systems, port authorities - in the broad sense of the term - supervise the industry with the rules that are applicable to port activities and services provided by people - called companies - around port infrastructures made up of works such as docks, piers, breakwaters, container yards, silos, buildings; and for port equipment such as gantry cranes, mobile cranes, reachstackers, belts or conveyor belts, among others.

“It is not foreign to associate port systems with infrastructure and service management models, the management or administration of what some call port "hardware" and "software." When it comes to management models, the recognition of the "public service port", "tool port", "landlord port" and "private service port" schemes is known, each with its own nuances regarding the ownership of the infrastructure and exploitation, and risk taking. It is not the case on this occasion to refer to the nature of each of these schemes because there is abundant specialized literature on it that is easily located on the Internet,” the lawyer points out.

On the other hand, he points out that it is interesting to introduce a hypothesis about the coherence that should exist in every port system. “When I refer to the coherence of the system, I also refer to the coherence of the management model. From the perspective of public administration and from the position of port operators and users of port services, it is understandable that the systems are sought to be equipped with consistent standards, that is, special laws on port matters and regulations that "offer legal certainty both for administrative procedures before state agencies and for legal and commercial relations between port operators, logistics operators, suppliers and users."

In this context, he explains, port systems should try to be as orthodox as possible. "Better said, those responsible for port systems, which are not only government agencies but also individuals, should put their efforts into consolidating the principle of unity of administrative management that should prevail in every port system, in such a way that it is simplified. the paperwork, or the procedures for obtaining enabling titles either to operate infrastructure or to provide some type of port service. "The fewer agencies or public bodies that have powers and functions in port matters, and the more concentrated these are, the greater coherence there will be in the port system, because there will be a more consolidated port community system and more efficient and less dispersed single windows," Pejovés points out.      

The lawyer suggests that a heterodox port system, in which processes with different rules are applicable to design, build and operate port terminals for public use, is far from consistency, since as far as possible there should be a single model so that private companies can can access concessions of aquatic areas to develop port infrastructure projects, framed in those processes that have globally proven to be very successful, such as public-private associations (PPP).

In that sense, he analyzes, it does not seem coherent that, in order to achieve the same objective, such as offering port services provided or provided from infrastructures, there are various ways within the same system with different rules of the game. “If there are ports or port terminals for public use, all of them should be subject to the same rules - the same standard - regarding the payment of the remuneration or fee for use of the aquatic area or the concessioned infrastructure; regarding the establishment and fixing of the amounts of port fees; or in relation to access if it is assumed that certain port infrastructures turn out to be essential facilities; and the same state agencies that regulate or supervise port activities and compliance with the specifications and concession contracts should be the ones that interact with a single package of rules with port operators and users,” he points out.

Practices at odds with free competition

The lawyer maintains that heterodoxy is sometimes not efficient, and this is verifiable and seems to occur in port systems - or if you want in the port industry. “This heterodoxy can generate practices at odds with free competition - especially with so-called interport competition -, it can perversely encourage unfair competition; and the dispersion of powers in public administration can generate cost overruns linked to slowness in administrative procedures and decision-making, which can then generate acts at odds with transparency and legality.”

“It is fabulous that there are direct investments of varying magnitude and origin in a port system, but it is valid to highlight the real or objective causes that in a given situation can motivate these investments. The commitment to the coherence of port systems starts with modernizing port regulations, with the aim of consolidating the institutional framework and guaranteeing legal security for all actors in the logistics and transport chain, as well as foreign trade operators and interior”, explains the lawyer.  

“My wishes for coherence and orthodoxy in port systems,” he concludes.

Source: www.mundomaritimo.cl

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