Because of its economic and strategic relevance to national security, port activity has always been conducted exclusively by the Federal Government through legal and contractual relations, sometimes marked by conflicts, with concessionaires, permit holders, and other companies authorized to perform public services.
For years, the disputes in the sector were settled exclusively by the Brazilian Judiciary, which implied a delay in the resolution of these controversies, thereby hindering the renewal of contract and making the continuity of investments in infrastructure difficult. To solve these problems, Law no. 12,815 (the Ports Law), which governs the direct and indirect operation of ports and port facilities by the Federal Government, was enacted in 2013.
Among the innovations brought in by the Ports Law, paragraph 1 of article 62 allowed disputes relating to debts (namely, those debts listed in the head paragraph of the same article) of port concessionaires, lessees, licensees, and operators to be settled through arbitration, pursuant to Law no. 9,307/1996 (the Brazilian Arbitration Act).
The specific regulations on the application of arbitration to the port sector came with Decree no. 8,465/2015, which, although subject to some criticism, represents a significant stimulus to the adoption of arbitration by the Public Administration in the port sector, since it regulates important issues such as objective arbitrability, publicity, choice of arbitrators, and institutions, among others.
Decree no. 8,465/2015 provides for the possibility of debating, in the context of an arbitration, issues related to defaults on contractual obligations by any of the parties, as well as port charges and other financial obligations of the port concessionaires, lessees, licensees, and operators vis-à-vis the port’s administration and the National Waterway Transportation Agency (ANTAQ) (article 2).
It is also provided that disputes related to the recomposition of the economic and financial balance of contracts will be resolved by arbitration, but Decree no. 8,465/2015 restricts access to arbitration in these cases by establishing that the matter can only be subjected to arbitration by a submission agreement, signed after dispute has arisen (that is, it cannot be covered by an arbitration clause - article 2, II).
Decree no. 8,465/2015 also allows conflicts already brought in court to “migrate” to arbitrations, through the drafting of an arbitration agreement (article 9, paragraph 4). In addition, it is possible to extend the duration of contracts while an arbitration is pending, provided that the legal and regulatory requirements are met and provided that the party contracting with the Public Administration: (i) has paid in full the undisputed amounts due; (ii) has paid or deposited an amount corresponding to the amount in dispute; and (iii) undertakes to pay the entire amount that it may be ordered by the arbitral tribunal to pay within a time limit not to exceed five years (article 13).
Although Decree no. 8,465/2015 provides that the Brazilian Arbitration Act should be applied to arbitration proceedings arising in the port sector, some rules included in Decree no. 8,465/2015 represent important modifications to the Brazilian Arbitration Act and, therefore, create a different procedure for port arbitrations from the procedure applied to arbitral proceedings in general under the Brazilian Arbitration Act.
Among the novelties included, the text (i) establishes that cases involving more than BRL 20 million will be settled by at least three arbitrators (article 3, V); (ii) grants both parties a minimum time period of 45 days to submit their respective defenses (article 3, VI); (iii) in an obvious violation of party equality, imposes on private parties the burden of advancing all expenses for the arbitration proceedings, even if the arbitration is initiated by the Public Administration (article 3, VII), in which case the contracting party will only be entitled to reimbursement if the Public Administration is defeated (article 12); and (iv) bars the payment of legal fees by the defeated party (article 3, IX).
Arbitration under Decree no. 8,465/2015 may be institutional or ad hoc (article 6, paragraph 4). However, the preference is for the management of the proceeding by an arbitral institution, and the option for ad hoc arbitration is considered an exception and must be justified. Institutional arbitration will necessarily be administered by a Brazilian chamber (article 4, paragraph 2).
After more than two years since the enactment of Decree no. 8,465/2015, it is still not possible to determine whether the changes it brought in fact contributed to greater efficiency in the resolution of conflicts related to the port sector, especially since there are still no precedents on the issue.
Since its enactment, only one arbitration has been initiated based on Decree no. 8,465/2015. The case involves Libra Terminal S/A, the terminal operator of the Port of Santos, in São Paulo. In September 2015, Libra Terminal S/A signed a submission agreement along with the Government, through the Secretariat of Ports (SEP), and the State of São Paulo Docks Company (Companhia Docas do Estado de São Paulo - CODESP), with the assent of ANTAQ.
The signing of the agreement, which represented the parties’ withdrawal from nine lawsuits (some of which had already been pending for 15 years) was very well received, as it was considered a landmark in arbitration involving the Public Administration.
However, after more than two years, CODESP has not even appointed its representative in the case, which involves more than BRL 1 billion and is pending before the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC).
Thus, arbitration in the port sector is still a blank canvas. This indicates that the excessive bureaucracy created by Decree no. 8,465/2015 makes proceedings slow and may even discourage parties from resorting to arbitration to settle port disputes.