Reliable fairway: expectations in the maritime industry

29 Окт

Сегодня Украина выходит из поствыборной неопределенности. Уже в целом понятно, кто будет играть ведущие партии в новом парламентском и правительственном оркестре, как будет звучать соло, где будут басы и уж тем более ударные!
Впрочем, украинскому бизнесу не привыкать к меняющимся правилам игры, он выходит из летнего отпуска и ждет перемен. Иностранный же бизнес с интересом наблюдает, как будут развиваться события в Украине и ожидает от нового правительства и парламента коренных долгожданных изменений.
Мы провели короткий опрос среди клиентов компании «Interlegal» и делимся мнениями о том, каких именно перемен ждет транспортный и морской бизнес от портовой отрасли.

В настоящей статье авторы «Interlegal» анализируют состояние дел в портовом секторе украинской экономики. Авторы поднимают наболевшие проблемные вопросы, связанные с системой портовых сборов, дерегуляцией, экологическим контролем, децентрализацией, а также кадровой неразберихой. В заключение они отмечают, что курс на приватизацию и оптимизацию госпредприятий, во многом начатый предыдущими правительствами при поддержке иностранных партнеров, не должен замедляться и тем более подвергаться сомнению. Только темп принятия ключевых законов будет служить для потенциальных инвесторов своеобразным маяком, дающим понять, что Украина — надежный фарватер, где можно идти спокойно и безопасно.Nowadays, in mid August 2019, Ukraine still is in the stage of uncertainty. Nobody can finally tell who is going to star in the new Parliament and Government orchestra, how the solo will be tuned and where the bass and moreover drums are to be!
Nevertheless, Ukrainian business is no stranger to the changing game rules: It’s gone for the summer leave and is quietly full of anticipation. As for the foreign business, it is observing with concern how die things are going on in Ukraine, and awaiting the long expected core changes from both the new Government and Parliament.
We have taken a brief poll among the Interlegal Company’s clients and would like to share the opinions on what changes the transport and maritime business exactly expect at the port sector.

Game needing rules, or law above all!
The draft Law on Concessions approved in the first reading back in last spring seemed to comprehend all the remarks, went through the Parliament’s specific committee, yet failed to be put on vote. Therefore, the promising projects at the ports Olvia and Kherson got braked, as well as such in Yuzhny and to some extent in Chornomorsk.
Why promising? Because under the conditions set by the state a concessionaire should undertake to build a dedicated transhipment complex in the port, and further on transfer it to the state after the concession term completion (the BOT pattern — build-operate-transfer). Also, an investor who’s opted for such a kind of public-private partnership (PPP) would undertake to enlarge the annual handling numbers up to those specified by the concession agree¬ment, and never allow it to lower, as well as pay to the state some specified percentage of profits above the basic lease rate. Moreover, there are certain social obligations in respect of the labour force not forgotten in the agreement.
Notwithstanding that, no sooner than Minister of Infrastructure Volodymyr Omelian had declared the intention to grant the container complex of Chornomorsk port which in fact stayed idle for a year into concession for a world major port operations tycoon Hutchison Ports, that the local media started to form the negative picture with this regard. Say, the investors are going to come to a set table, automatize the terminal the way they did it in Barcelona and leave only 6 persons out of several thousand. The blackening campaign’s author had failed even to think that ‘set table’ and ‘automatize’ are mutually exclusive points. At the nearest prospect there’s also the concession issue of the public stevedore Port Pivdenny (Yuzhny), the one embracing far from the whole port’s infrastructure yet noticeably losing in favour of its private rivals at the same harbour: the TIS Group terminals, as well as Beau-Rivage, Risoil, Delta Wilmar etc. Of course, there is some political talk about it, the item as it is getting rumoured and full of hearsay. However, it is quite obvious: all the stakeholders wait for the single and unified playing field.
The capability of playing it straight is a key demand of all Ukrainian stevedores, agro-holdings, and foreign port operators. The law’s soonest adoption is what the actual port operators expect — those having come as early as the 1990-es, as well as the nowadays’ foreign investors: Posco, Bunge, Louis-Dreifus, Delta-Wilmar and many others capable to erect new up-to-date handling facilities enhancing the cargo transhipment speed and correspondingly the whole Ukraine’s logistic attractiveness.
It’s worth as well to note that there are at least 5 types of PPP — from the entire control by the investor (BOT) for the whole term of concession, to a shareholding company founded by the port authority and a private investor, while in the first case all the risks are taken over by the investor, and in the second one they are equally shared.
The next item in the list of the necessary is the long expected draught Law of Ukraine on Inland Waterways. After long disputes the expert community approved a trade-off text waiting for the voting. It embraces the 5 EC Directives in this field, and its vitality is regularly endorsed by railway jams in the periods of harvest intensive export, as well as incessant scandals with weight limitations on the motor roads. Most of the European countries boast their inland water traffic dwarfing ours many times.

Ready to pay, but for what?
The market has long ago pushed forward a Dumber of amendments in Code of Merchant Shipping of Ukraine and Law of Ukraine on Sea Ports. The amendments mostly concern the two issues:
1) The problem of port dues the amount of which is considerably exceeding that levied in the other Black Sea countries’ ports and even in the Mediterranean.
The problem has long ripened as for both the dues levying and their calculation, and imposing the rates. And there should be a special commission envisaged by Law on Ports though not yet established, to deal with this problem solving. The same commission must as well secure that every bill invoiced to a vessel in a Ukrainian port should correspond to a real service actually rendered.
2) Necessity of driving to completion the process of deregulation in the marine and port sector, demonopolisation of pilotage services in accordance with a number of European countries’ experience, creation of the integral market based on the trade union i.e. Ukrainian Pilots Association instead of pilotage departments of ports.

About the nature
Apart standing and the most media focused is the issue of ships environmental control in ports. On one hand, Government realises well the problem’s global response when Ukraine is regarded by foreign seafarers as a ‘European Nigeria’ in respect of extortion in its ports. On the other hand, Ministry of Ecology holds the line «there are some local excesses though the checks are necessary», pumping up negative emotions in the society taking advantage of the issue’s complication.
Meanwhile the matter has been seriously taken up by an authoritative international organisation Maritime Anti-Corruption Network (MACN), a representative of which recently took part in Grain & Maritime Days in Odessa — a major conference of transport and international trade experts. According to the MACN calculations, some $30M are annually spent by shipowners on fabricated fines and bribes in the world.

Decentralisation or more rights for communities
There are a lot of positive ideas with regard to the port industry prospects expressed by Ukrainian Sea Ports Authority (USPA) management as well. For instance, regarding possible transfer of smaller ports to the municipalities, i.e. if talking about the Black Sea region those are the ports beyond ‘Greater Odessa — Bug-Dnipro Estuary’ cluster, such as Skadovsk, Ust-Dunaisk, Bilhorod-Dnistrovsky and the Danube ports.
It’s worth mentioning that this is perhaps the first actual turn at the local communities’ direction whose rights toward the ports occupying a large share of the cities’ life and causing as many troubles are ignored at all in Law on Ports.

Personnel above all!
Of course, the soonest possible solution of many personnel problems repeatedly voiced by experts is a must. First of all it is the ‘Acting Manager’ problem when a number of managing directors of public companies is appointed without the required tender and consequently without a due contract signing. It is quite obvious that in the absence of the full-scale authority such a leader is not concerned in high-quality management or the business development.

Lighthouse leading to harbour
And the last thing not to be forgotten is the country’s international image as of a reliable partner with the unique geographical position.
In the meantime foreign partners wait for the changes and are ready to shoulder up the country’s new leaders with investments, knowledge and experience. These are both the mentioned above Hutchison Ports and another giant operator DP World from the UAE, and a number of Chinese and Japanese companies. E.g. the Japanese public investment agency JICA conducted earlier Ukraine’s port market research and expressed the willingness to invest hundreds million USD, while MTBS (in partnership with Interlegal) from the Netherlands has helped for many years the private stevedoring business and the entire port sector developing.
The public companies privatisation and optimisation policy largely launched by the previous governments supported by foreign partners should not slow down and all the more be questioned. Only the rate of key laws passing is going to serve for potential investors a kind of lighthouse enabling to realise that Ukraine is a reliable fairway for quiet and safe sailing.

Авторы: Artur NITSEVYCH, Partner, Interlegal; Andrii NETREBENKO, Port Projects Consultant, Interlegal

Источник: Судоходство (Shipping). 2019. № 9. С. 8 — 10.