The company Cosco Shipping Ports Chancay Perú SA (CSPCP), which manages the Chancay portreported that it has learned of the resolution issued by the Superior Court of Justice of Lima, which resolved an amparo action filed against the Supervisory Body for Investment in Transportation Infrastructure for Public Use (Ositrán), linked to the port terminal.
In this regard, Ramiro Portocarrero, lawyer for Cosco Shipping Ports Chancay Perú, pointed out that the ruling expressly recognizes the private nature of the port of Chancay, as well as the limited powers of Ositrán to exercise regulatory tasks over this infrastructure. The lawyer specified that this is an investment financed entirely with private capital and that it is not subject to a state concession contract.
As Portocarrero explained, the court determined that the terminal operates under an administrative authorization granted by the National Port Authority (APN) and that it has not received goods concessioned by the State. Likewise, he indicated that the project was developed completely at the company’s risk and offers its services to all shipping lines interested in operating in the port.
The judicial resolution also establishes a clear distinction between private and concessioned infrastructure, pointing out that the fact that the port provides services for public use does not modify its private nature nor automatically enable the application of a comprehensive regulatory regime. In this sense, the Court emphasizes that State intervention in private infrastructure must be exceptional, express and limited, in accordance with current regulations.
As is known, the conflict arose because, according to the antecedents, Ositrán changed its initial position and attempted to apply a comprehensive regulation regime to the port of Chancay, similar to that of public ports or those that the State grants under concession.
For this reason, the ruling also warns that the claim to exercise full powers of regulation, supervision, inspection, sanction and collection of the regulatory contribution lacks sufficient legal support and violates the principle of legality, by ignoring the enabling title of the project and the legal category of “private port.”
Portocarrero specified that aspects related to rate regulation are not part of the lawsuit, and recalled that, according to the regulations, rates can only be regulated in the absence of conditions of effective competition, prior evaluation and ruling by Indecopi.
Finally, the lawyer emphasized that the recognition of the private nature of the Port of Chancay does not exempt the company from compliance with the national legal framework, which is supervised by various entities such as Customs, Senasa, Migrations, the Anti-Drug Directorate, the National Port Authority and the health authorities, among others.
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