The autonomy with which the Port of Chancay can operate in Peru has just opened another front. Now the Congress of the Republic of Peru seeks to enable the Supervisory Agency for Investment in Public Transport Infrastructure (Ositrán) to oversee it, without question, by amending a law.
Congressman Arturo Eusebio Padilla, from the Cívico Obras party, presented a legislative proposal (00637-2026 2031-CD) that aims to shield the regulator from challenges by the terminal operator, Cosco Shipping, a Chinese-capital company, regarding its capacity to supervise its investment in Peru.
Specialists indicate that, if it "succeeds" in the Legislative Branch and becomes law, the project would "clash" with the pending decision of the Constitutional Court (TC), which has yet to rule on this matter.
Eusebio Padilla's proposal seems simple: modify an article of a regulation and extend Ositrán's scope of action. But, in reality, it would imply a key change.
Specifically, it proposes to modify article 4 of Law N.º 26917, which establishes the rules for the Supervision of Private Investment in Public Transport Infrastructure and the Promotion of Air Transport Services.
This is, in simple terms, the legal provision that created the regulator and has been in force since 1998, years before the National Port System Law was enacted in 2003.
The part of that law that the congressman has targeted addresses Ositrán's scope of competence. The proposed change would enable the entity to exercise its functions beyond concessions and national public transport infrastructure, as it is today.
"The private ownership of public transport infrastructure or the absence of a concession contract does not exclude or limit Ositrán's competence with respect to the service providers included in this article," would be the complete paragraph that the congressman would add to this article of Law N.º 26917.
In his statement of reasons, the congressman from Obras does not hide that his bill arises due to the recent controversy between Cosco Shipping and Ositrán regarding the regulation, supervision, and oversight of the Port of Chancay.
"This specific case transcends into a larger, nationally relevant issue, where it must be clear that no matter how much a transport infrastructure has been built with private capital, it is not an insular area, but remains within Peruvian territory and; therefore, is subject to its laws," it states.
As a reminder, at the end of August, Cosco Shipping announced that it filed a Constitutional Grievance Appeal (RAC) with the TC for the court to review a July ruling by the Judiciary (PJ).
The Second Constitutional Chamber of the Superior Court of Justice of Lima revoked the ruling that had initially sided with the Chinese company, stating that Ositrán could not exercise its jurisdiction over the Port of Chancay.
Pending the TC's ruling, in one part of its legislative proposal, the proposal emphasizes that it seeks to resolve the "legal vacuum" that originated this entire dispute in the courts. Gestión sought Cosco Shipping for further comments on the matter, but no response was received by the close of this edition.
According to specialists consulted by Gestión, although the proposal may have good intentions, it is not without problems.
For Alberto Ego-Aguirre, president of the Maritime, Port, and Customs Affairs Commission of the Lima Chamber of Commerce (CCL), the main drawback is that the legislative proposal is explicitly a potential law with a specific name.
According to the CCL spokesperson, this represents a serious danger to the entire national port system, as it could be taken as a change to the legal conditions to negatively affect, in his opinion, an ongoing investment that did not originate as a concession.
"Where does the role of the National Port Authority (APN) stand? It exists and should have more attributions. But now they want to add more controls to an already regulated sector, in this case, ports. The Chinese, together with a Peruvian partner, built Chancay from scratch. For that, they reviewed all the legislation, taxes, and so on. No one can change the rules of the game afterwards," he complained.
Precisely, Ego-Aguirre recalled that with the APN at the helm, more than 15 public entities already supervise the Port of Chancay, and there is no opposition from Cosco Shipping regarding them.
In this regard, he recommended that if Congress intends to use the Chancay case as an example, it should better evaluate giving greater sanctioning powers to the APN.
Otherwise, and with the original proposal from Obras, they could halt the total investment of Cosco's master plan for this terminal. Its master plan contemplates a total investment of US$ 3.5 billion, of which just over US$ 1.3 billion has already been allocated for the first stage, which is now operational.
"If this were approved as is, if I were Cosco, I would say: I'm not investing any more here (...) Not just them, any sector would think the same. We cannot come down on foreign investment just when it has already become a reality," he warned.
From another perspective, Patricia Benavente, former president of Ositrán, also did not approve of Obras' idea. In her opinion, it is poorly focused on the issue it intends to resolve.
"The discussion about Chancay is not whether it has a concession contract or is publicly or privately owned. The central issue is whether or not it participates in a regulated market where, in that case, it falls under Ositrán's jurisdiction. That is the underlying issue, the bill does not address it, and it fails substantially," she considered.
Benavente indicated that what Eusebio Padilla proposed would also force Ositrán to regulate private port terminals, since by not limiting the regulator's actions to Public-Private Partnerships (PPPs), better known as concessions, it would also reach them. This refers, for example, to ports built by mining companies to dispatch their mineral.
Precisely on this, Benavente recalled that regulatory bodies, including Ositrán, have been under the scrutiny of the Executive and Legislative branches for months. The government of José Balcázar left a supplementary credit for S/ 4,160.3 million, where the role of regulatory bodies over PPPs was also limited, by inclusion of Congress.
As Gestión reported, that law included that entities such as Ositrán would no longer comment on contracts prior to their award, not even on tariff aspects, which would affect their potential addenda.
Already in this Parliament, and as this newspaper also reported, Renovación Popular seeks to reverse this change with another legislative proposal and even expand the role of regulatory bodies over PPPs.
"Regulated companies may always dislike the opinions of regulators. But that cannot imply that, due to interests or pressure, their function is completely eliminated," said Benavente.
