Статья посвящена реформе портового хозяйства в Украине. Особенное внимание автор уделяет приватизации в этом секторе украинской экономики. Кроме того, рассматриваются вопросы, специфические для морского права, и вопросы собственности в морских портах, в том числе на искусственно созданные (намытые) земельные участки. Особо выделяется вопрос о государственно-частном партнерстве, которое, по мнению автора, может оказать позитивное влияние не только на развитие портового хозяйства, но и всей украинской экономики.
Reform of Ukraine’s port industry, seen by many as an intractable problem, has been dragging on for years. On November 3,2011, for example, the Verkhovna Rada (the Supreme Council, the country’s parliament) adopted a draft Sea Ports of Ukraine Law, which defined “the legal, organisational, economic and social principles for the creation of new facilities and the development of existing sea ports, as well as defining the responsibilities of port operations with the aim of completely reforming the State’s port sector”.
The law was subject to being signed by Ukrainian president Viktor Yanukovych and, once signed, would for the first time open the way to the privatisation of state-owned ports. To the amazement of the international maritime community, however, the president refused to sign the draft.
Why was the draft law rejected by the president?
According to the draft law, the definition of a sea port had been amended to “a defined land and water area equipped to service passenger and cargo vessels and to carry out transport and forwarding operations as well as other commercial activities”.
The law further stated that:
(i) All commercial activities (stevedoring, warehousing, towage, bunkering, etc.) would be transferred to the private sector.
(ii) Maritime matters would be the responsibility of two separate authorities. On the national level, safety and navigation regulations would be provided by the tate, while operational and safety matters would be the responsibility of the relevant Harbour Master, operating independently of port administrations.
In addition, the draft law established legal parameters regarding the ownership of the land and water “territories”, with delineation of those areas not subject to privatisation. Interestingly, it also stated that “artificial” land plots (reclaimed land or land not currently occupied by the port) could in future be subject to long-term leases and concessions – a substantial change to the existing situation.
In more detail, the draft law outlined those port areas (land and water) that would remain under state control. These included strategic property that cannot be privatised, leased or concessionalised, water channels, berths and quays, infrastructure, and roads and railways. All other port assets and land (except the water areas and reclaimed land) could be privatised.
The president refused to sign the draft after expressing concerns about most aspects of the law, particularly those affecting water basins and water usage, border crossing points, privatisation and the reorganisation of the ports.
Why is privatisation so important?
One of the problems for Ukraine’s ports is that there is no container-handling price competition, as nearly all tariffs are set by the Ministry of Infrastructure, including performance, productivity, customer service levels and the reliability of hinterland delivery routes. The recently adopted law envisages liberalisation of tariffs; mostly, as of June 2013, they will become free. Ukraine’s legal environment for port investment, therefore, is “far from perfect”, according to Nitsevych. “The need for a framework of laws and regulation for public-private partnerships and transparent tender procedures are vital for future success,” he commented.
Although privatisation is seen as being the main instrument of reform, progress is constantly impeded by the interpretations of ownership and state responsibilities. The most interesting of these is the proviso that if previous lease approval has been granted to a company prior to the law coming into force, that company would be entitled to purchase the property (provided it has carried out improvements for an amount not less than 25% of its depreciated value) at the time of privatisation.
In other words, it would be possible to buy (without a tender) the assets (buildings, etc.) from the port – subject to the lease contract being in place before the law came into being.
Matters have not been helped by the controversial decision of Ukraine’s Cabinet of Ministers in May 2008 to reserve the right to approve port investment contracts. It is argued that not only is this measure legally questionable, but that it has already resulted in a slowing down of incoming port investment.
Conversely, however, the Port of Odessa’s Quarantine Mole project to construct aim teu container terminal at a cost US$500m, which has stagnated for years, was suddenly granted preliminary approval by the Cabinet of Ministers at the beginning of March 2009.
According to Nitsevych, the global operators already in Odessa and Ilyichevsk with “proper” terminal facilities have an advantage with their good reputations and service levels, in a market where conservatism rules and winning new clients takes considerable time and effort.
However, there is a need for more foreign investment. While potential investors may be wary of the perceived political risks, they should also consider the country’s strategic importance and revenue-earning potential.
Can the new law overcome previous obstacles?
The intention is for the new law to come into force 12 months after the date it was adopted – although some provisions have come into force already, mainly relating to organisational preparations.
In the first place, the recently adopted law seeks to separate the administrative and commercial functions in ports and infrastructure investments (particularly dredging and railways) and, secondly, to provide a solution to the difficult question of port land ownership.
The legal status of Ukraine’s ports is determined by the Merchant Shipping Code, which was adopted in the mid-1990s and is now well out of date – not least because when it was adopted many of its clauses were already obsolete and included legal concepts that were introduced during the days of the former USSR.
Unfortunately, even today, reform legislation seems to be less motivated by necessity and reality and more by selfish political reasons, which have led to it being halted in its tracks. Despite this, shippers and exporters, who are becoming increasingly frustrated at the lack of progress on port reform, are among potential port investors clamouring for “integrated and efficient” port facilities that are capable of servicing the country’s existing and future logistics chains.
Port managements in the past have often been unequal to the task, but now there is a growing recognition that “there cannot be market development without cargo, which in turn requires significant input not only from port owners but also professional operators, which is currently not evident,” according to Nitsevych.
This is why port privatisation is so important, as has been proven in other countries. How Ukraine’s privatisation will progress is anyone’s guess, although there are currently some positive signs. The Ministry of Infrastructure, for example, now understands the “principles and practices” of privatisation and it, amongst others, recognises that freedom from bureaucracy and unacceptable levels of political interference, the setting of rates independent of state regulation, “liberalised” port activity and the acceptance of leases and concessions are the most efficient ways forward.
Unfortunately, despite another one-year deadline being imposed to implement the Reform Law, some believe, based on previous experience, that nothing will happen.
Nevertheless, significant numbers of people within the industry have hopes that some smaller ports and individual terminals will eventually be privatised, with redeemed shares of the current joint stock companies resulting in operating leases/concessions or other investment agreements.
The hope is that this will in turn lead to new projects in large ports being created. Joint venture agreements will probably not be so popular because investors are currently not keen on 50/50 arrangements, for a variety of reasons.
What seems to be emerging is a consensus of opinion that the best and quickest way forward is for a landlord/ tenant privatisation model in which the state will retain ownership of port infrastructure (however it is defined) and will operate port facilities on a state/private partnership basis in combination with the private and public sectors.
“This has to be the most effective way for further progress that is necessary not only for the ports but for the Ukrainian economy in general,” Nitsevych concluded.
Автор:
Arthur Nitsevych, chairman of the Nautical Institute of Ukraine and managing partner of Interlegal
Источник: Container Management. – 2012. – September/October. – P. 72 – 73.