As is known, in these agreements the licensee ensures operation of a public work (state property used for purposes of public good) in exchange for a price not remunerated work effective, but in terms of economic exploitation of the work and its use by the public. The rate is determined by the parties at the time of the contract, taking into consideration the characteristics of the work and the extent of the obligations of the concessionaire (of course, new works, the fee is much higher than for works already constructed, only it is preserved in time.) The stability of that rate, a manifestation of principle of risk and , I knew only limited exceptions, in particular from the increase of the work.
also be used in this rule until now one of the cases of recognition of the "theory of unpredictability" in Chilean law. The standard available (inc. 3): "The bidding establish the procedure and the time within which the licensee may request the revision of the tariff adjustment formula or the term of the grant by supervening causes that justify and may do one or more of these factors simultaneously. In cases where the foundation does not provide for these matters, disputes arising between the parties shall be subject to the provisions of Article 36 of this law. "
Especially in this context should read the new law. It reads as follows:
Article 19 .- The licensee may seek compensation in case of supervening authority act with authority that it is justified only when copulatively, satisfies the following requirements: the act takes place after the award of the tender of the concession could not be foreseen at the time of award, does not constitute legal or administrative rule enacted general effects that exceed the scope of the concession industry concerned, and significantly alter the economic status of the contract.
dealer investment to meet service levels and technical standards set in the bidding and contract award will not be liable to additional financial compensation to those considered in these instruments, except for exceptional cases where they have been provided in the bidding.
Public Works Ministry may amend the specifications of works and services purchased in order to increase service levels and technical standards set out in the bidding, or for other reasons well-founded public interest. As a result, the concessionaire must provide financial compensation where appropriate, for additional costs it incurred in this connection.
The bidding will set the maximum amount of investment that the dealer may be required to make under the provisions of the preceding paragraph, and the time limit within which the Minister may order the modification of the works under concession. In any case, the maximum amount of these new investments may not exceed fifteen percent of the official budget of the work, or may be required at a later date to fulfill the three-fourths of the total concession period, except in cases of express written agreement with the concessionaire.
If the value of these additional investments during the operational phase, exceeds five percent of the official budget of the work or corresponds to a sum exceeding one hundred thousand units of development, its implementation should be tendered by the dealer, under the supervision of the Ministry of Public Works, in the manner prescribed by the regulation, which case the value of investments to be offset by the concessionaire shall be the result of competitive bidding, which will add an additional amount to defray the cost of contract administration, to be determined in the bidding. The Ministry has a period of 60 days to approve or express their views on the respective bases, starting from the receipt of them. After this period without the Ministry has decided, will be considered accepted. However, for good cause contained in the bidding on the report of the Board of Awards may be established an exception to the mandatory tender of the additional works under the conditions described above.
The financial compensation referred to in the preceding paragraphs, must be expressed on the following factors: subsidies provided by the state, voluntary payments made directly to the dealer by third parties who are interested in the development of the work, change the present value of total revenue granting, alteration of the concession period, changes tariffs or other factor of the economic system of the concession agreement. It may use one or more of these factors simultaneously.
In the case of paragraphs third, fourth and fifth of this article, the calculation of compensation and adjustment of the parameters mentioned in the preceding paragraph shall be provided so as to obtain the net present value of additional project is zero, all considering the applicable discount rate and the economic impact that the additional project may have on the original project, including increased exposure that can add to it. The discount rate applicable shall be calculated on the basis of the prevailing average interest rate for instruments debt consistent with the investment term, risk-adjusted additional relevant project and the corresponding any compensation to which they apply. If there is disagreement on the applicable discount rate, the parties may appeal to the bodies established in Articles 36 and 36 bis. For this purpose, additional project means that derived directly from the change in the nature of the works and contracted services.
All modifications to the original contract to include additional works, which separately or together exceed five percent of the official budget of the work, provided that this percentage corresponds to an amount exceeding fifty thousand units building, must have a report from the respective Directorate of the Ministry of Public Works on the impact of the change in service levels originally engaged in the valuation of these investments, and in respect of proportionality and equivalence mutual economic benefits and tariff levels and structures under the concession contract.
The amendments are incorporated in the grant under the provisions of this Article shall be established by Presidential Decree of the Ministry of Public Works, which must also bear the signature of the Minister of Finance.
The general principle that the rule holds stated in paragraph two. Indeed, the central idea of \u200b\u200bthe article is that the perception of the rate for the duration of the concession, is the only compensation to the concessionaire is entitled. In a construction contract, this rule would be to underwrite general characteristics of the lump sum : as expressed by the Civil Code, the builder "can not ask for price increase under the pretext of having expensive wages or materials, or additions or modifications have been made in the original plan "(art. 2003, No. 1). In other words, the concession holder, from the time of conclusion of the contract, the entire the risks involved in construction or maintenance of public works. So the general rule is implicit: when he says that the investment incurred by the concessionaire to meet service levels and technical standards established by the contract "shall not be liable to additional financial compensation" to the instruments referred to in the contract, the rule stating that the rate is not checked (in home court, It is understood), but remains unchanged. Nothing that surprising, after all, considering the generally prevailing in the field of contract, public or private: pacta sunt servanda (C. Civil, art. 1545).
Interestingly, however, that is made explicit that the risk assumed by the dealer is now defined, in addition to "technical standards" described in the rules, based on expectations derived from the type and nature of the work ( "service levels"). That flexible approach, which runs several rules of the new law will certainly fodder for arguments before the dispute resolution bodies. At bottom, a formula and, in harmony with the criterion of good faith by the dealer makes the need to include aspects not clearly expressed in the bases, but they are essential to comply with the "service levels" offered. In a very preliminary stage such as this, it is difficult to imagine cases of application of this rule, but it can be assumed that the determination of service levels may be relevant in areas adjacent to the contract itself, such as about the damage that arising from breach of certain standards not elsewhere (closure of certain facilities, beyond what is provided in the rules or the Manual for Roads, for example.).
technical standards and service levels also link, needless to say, the authority. However, the MOP recognizes the power to increase them (also known as ius variandi ) should provide financial compensation to the concessionaire the additional costs it has incurred. Set limits on the exercise of this power: the higher costs can not exceed 15% of the official budget of the work or the decision to intervene last three quarters of the total duration of the concession. It is too early to judge whether these limits will successfully adapt to the reality of each contract, which is why there's also the MOP Implied requirements: if it is foreseeable that the proposed work is insufficient in the short walk, or in the event that could need to be increased (if not fully secured demand when deciding to build of the work), should make explicit in the rules under which conditions will be implemented this increase in work.
compensation for the improvement of the work may take different forms that change the economic system: rate, term, subsidies, payments, etc. Here are more precise than in the ancient texts, but nothing too new. Perhaps it is in direct payment of higher costs (the dealer or third party creditors or contractors, for example.) An appropriate way to avoid the risks, sometimes political, an increase in rates. In any case, the new law adopts the necessary precautions from the perspective of accounting for that compensation is not for dealer opportunity gain or loss, maintaining the profitability originally agreed.
To conclude this aspect should be taken into consideration the system of bidding is expected to carry out the works. As in other areas (health services, electricity), it imposes the obligation of private tendering certain acquisitions, in order to maintain transparency and avoid increased costs surreptitious unilateral decision of the service. This technique of bids is a good idea, but how to control that bids are effectively respected the principles of free competition and equality bidders? Although not impossible, it is difficult to envisage how this class will be exported to the proven tools business in the public right to review the legality of the contracts.
In short, the system instituted by art. 19 is simple: the dealer's financial reward is not modified, unless a court, unless the parties themselves have provided special review hypotheses (clauses hardship), and subject to adjustments in case of improvement of the work by ius cause variandi . In other words, the legal technique is to leave behind the idea of \u200b\u200ba review of the contract "for reasons supervening justify this hypothesis "that could be understood as theory of consecration of the unpredictability of Chilean law. There is no knowing whether this state of affairs will remain indefinitely in time, it is true that the rejection of that theory is consistent with traditional principles of contract law in Chile, but we must not ignore the interesting developments experienced by comparative law on the subject in recent decades, designed to recognize with great caution, a (marginal, but non-existent) to the theory on the set of legal institutions. For starters, the new law attempts to correct some bad experiences approaches used earlier, reaffirming the need for greater awareness of the licensee in the proposed economic conditions when formulating its bid. No doubt some will argue (as they have done representing the industry) that the reform does not set adequate incentives to invest in these contracts to be seen whether the future development of the facts behind this criticism, but it should be noted that if something tries this law is to correct the lack of incentives, under the rule of the previous text, the dealers had to make from start to give adequate offer of the risks of the operation.
But however close the door on any idea of \u200b\u200bunpredictability, rule in its first paragraph provides a hypothesis of the "fact of the prince", which until now had no explicit recognition in this type of contract, despite being also one of the cases usually be altered the economic balance of the contract (or financial equation.)
understood doctrine in administrative contracts the risk inherent in the obligations assumed by the counterpart of the state can not absorb certain contingencies arising in the same state. Of course, those that have been caused by fault in the execution of the contract give rise to contractual liability ordinary hypothesis. The expression "act of the prince" instead designates a form of redress for legitimate contractual charges caused by the state. Because of the engagement of the administration is not stripped of its public powers, can continue under the general interest, however, whether the exercise interferes with the performance of the contract modified in the fact their conditions of compliance may be necessary higher repair costs. "We made the prince as a public service, linked to an individual by a contract which involves execution of public services, procurement or execution of public works, makes a change to the contract by one of those acts that reveals the rule, independently, in particular a regulatory act, it is because the act of public authority, having condescended to discuss, to negotiate, to be bound, suddenly reveals 'Prince', ie 'all' in original sense of the word, freed from all bonds, and that in circumstances where this manifestation of absolute power is likely to modify the elements of the contractual situation that had left previously established (M. Hauriou, note on EC, 8 March 1901 Prevet , cit. Terneyre P., contractuelle La responsabilité des personnes publiques en droit administratif , Paris, Economica, 1989).
In line with the ideas that came out in Chile in 1980, the prince made the wrong justified as legal theory, to the extent that the contract rights arise (personal) to its holders are subject to kind of property, the authority could not really pass them to carry through lawful acts, because by the mere act of breaking into the property would not be lawful (unless fully meet the constitutional requirements of expropriation). Legal recognition of the theory of an act of Prince refuted these doctrinal positions that still seem to remain among some: the state can interfere with a contract compliance problems, alter the rights resulting from it and in return, and under conditions determined by law, must adequately compensate the concessionaire. Enough to convince to look at the hypothesis that in the legislative debate, it was understood as a typical manifestation of the fact of the prince: can be discussed seriously by the fact that a path to granting the authority loses the power to decide whether to open another, even At the risk of this demand that you remove the first?
it is assumed that the fact of the prince gives rise to a kind of responsibility for a lawful act (*). In the field this form of tort liability, as rare application Chilean law practice is the subject of abundant literature that tries to define its contours. Although it would be inappropriate at length here on these matters, which are otherwise subject to very different perspectives on comparative law, please note that the formula contained in the tax law is comparative reflections on the subject. Of course, the fact of the prince must necessarily be based on subsequent events and contingencies at the time of hire, otherwise it would accept outright the dealer to avoid the risks inherent in the obligations which, given the nature of the contract. Above all, the new regulation should not be "a statute or administrative enacted general effects that exceed the scope of the concession industry concerned. " In other words, the damage suffered by the contractor should be viewed as an abnormal load, a kind of sacrifice that specifically grave, making it difficult for the execution of the contract on agreed terms. A general rule, independent of the areas of the economy to which touch, can not in principle give rise to any kind of liability, unless shown to be unlawful (or unconstitutional, if any), for the very general the rule is an attribute that defines the playing field, which can not be broken without excel (or harm) improperly none, which would be contrary to the distributive logic of public accountability.
(*) is not always a clear responsibility, since compensation for the increased costs as an act of the Prince cover even acts of authorities other than the actual contracting, municipalities, regional governments, decentralized agencies, etc. At about the attribution does not concur in the strict sense can not always be assumed that the state act is attributable to the contracting authority.
