Brazil's Struggle to Privatize Seaports
A summary of the key forces driving Brazilian port privatization.
The Brazilian infrastructure sector is gearing up to support the strong growth of the country’s foreign trade. In the last 10 years exports have more than tripled, while imports have more than doubled. In order to handle the trade boom, Brazilian seaports have been receiving significant public and private attention. To put that in perspective, Brazil’s seaports handle 95% of the country’s trade by volume and 85% by value.
During the 30th anniversary of the Brazilian Association of Port Terminals (ABTP), on 14 August 2018 in Brasília, a speech by the National Secretary of Ports and Waterway Transport, Diogo Piloni e Silva, announced the privatization of ports. On May 15 to 17 this year, at the ENIC meeting in Rio de Janeiro, Minister of Infrastructure Tarcisio Freitas announced privatizations to boost the competitiveness of Brazil’s infrastructure sector: highways, ports, airports, oil and gas. 
More recently, on the 13th of June 2019, a forum on the privatization of the seaport sector took place in Rio de Janeiro. Government and private stakeholders put forward plans and explanations on engineering, environmental, regulatory, and economic issues pertaining to the Brazilian ports development sector. However, despite the recent climate of privatization, the federal government of Brazil has yet to release a bill or official plan regarding the future of port regulation in the Brazilian Union. 
The climate of privatization is correlated to the ascendancy of Jair Bolsonaro to the position of President. Whether the goal of the privatization process is political, fiscal, or something entirely else remains to be seen. Currently, stories are emerging regarding the potential roadmap for the privatization process.
São Paulo governor João Doria has had conversations with president Bolsonaro on the subject of privatization, and stated that infrastructure Tarcisio Gomes de Freitas is working on a privatization plan. The plan is meant to be unveiled in the second half of Bolsonaro’s term as president, in the third or fourth year of the Bolsonaro government. 
The Law as it Stands
Regulations and the operation Ports are all observed at the federal level, which means that a constitutional change must happen for a fundamental shift in the way these infrastructural arrangements are governed. This will likely not be the case: instead, a mid-way solution in the form of Public-Private partnerships is the primary method by which infrastructure is provided in Brazil. Nowadays, PPPs such as concession agreements are often used by public authorities, and are helping public entities deliver better services and infrastructure. 
The standing law (as of July 1, 2019) regarding the operation and concession of ports is regulation 12,815 which came into power in 2013. The law built upon the previous laws of 1991 and 2008, expanding on the privatization and operation regulation aspects of the laws, respectively.
Article 3 of the law notes the lack of competitiveness of Brazilian ports: however, the regulation focuses on federally-issued licenses for private use terminals, cargo transhipment stations, small public port facilities, and tourist port facilities – rather than improving competitiveness. 
All of these port types operate according to authorizations issued by ANTAQ, the National Waterway Transportation Agency. ANTAQ is a state agency connected to the Secretariat of Ports & Waterways, which is itself linked to the office of the President. However, ANTAQ operates independently from the government. 
The current legal framework puts forward 3 types of port set-up:
1. Operation of port facilities within organized ports, through leases, preceded by bidding (AKA a Landlord Port). This is the case of all public ports in Brazil, especially after Law No. 8.630 / 1933, which transferred port operations to the private sector through leases. The public sector only occupies port administration and investment into infrastructures of common use.
2. Exploitation of Private Use Terminals (TUP), outside the organized ports, for the movement of cargo, for which the private port must have ANTAQ authorization. The Port of Itapoá, the Port of Açu, and the Terminal of Pecém are examples of Private Terminals (more on these below).
3. Operation of port facilities within organized ports, by means of authorization to pre-qualified port operators without exclusive use of the facilities (Tool Port). This “port within a port” system is the case at the Port of Recife, for example.
On the one hand, private terminals in Brazil have fewer ties in operation and less bureaucratic overhead. On the other hand, their business model makes it less enticing to move products with low added value, as is primarily the case in Brazilian port exports.
The reason for this is that the mature market of shipping focuses on high-margin contracts such as break-bulk transport. Comparatively, bulk transport has low returns on investment and is less viable the more mature the shipping market. 
Recent Developments & Figures
In the 2018 Global Competitiveness Index, Brazil fell three places to 72nd place out of 140 countries. The country’s low productivity is explained by a combination of factors: the primary ones being the low level of value-add to the country’s exports, a relatively underdeveloped infrastructure network and governance issues. Being the 9th largest economy in the world while the 72nd place in the Competitiveness ranking shows that there are many opportunities for changing the country, which is why the current agenda is based on structural reforms.
Exports in 2018 were driven by basic and manufactured goods (soybean, iron ore, crude oil, raw sugar, etc.) and reached the highest level in 5 years. In 2019, export growth should remain stable and could reach up to R$ 256 billion, which is very close to the peak 2011 figure. Regardless of the quality of port infrastructure and governance, this is the key issue with Brazil’s export sector.
Regarding the infrastructure of ports, the Brazilian coast has 8,500 km of navigable extension. The Brazilian port sector handled more than 1 billion tons of goods in 2018, with a 33% growth in the last seven years. The Brazilian port system comprises 34 public ports - 18 of which are concession ports or those with private licensed operations within. The other 16 ports are managed directly by the Docas Companies – joint stock companies with the Federal Government as the major shareholder. 
Brazilian Public Sentiment on Port Privatization
The port sector in Brazil is waiting for the National Secretary of Ports, Diogo Piloni, to explain the government’s vision of decentralizing the management and administration of Brazilian ports. There is no small amount of skepticism regarding privatization in this community.
The decentralization of the management of Brazilian ports has been dotted with unfulfilled promises, as happened in the FHC government and by the last Secretary of Ports who guaranteed to complete the port decentralization process in just over three months, until December 2018 when the new government was formed and the old secretary relieved. 
Individual cases shape the consciousness of this issue: Various mishaps and inefficiencies that have taken place in the port of Santos (the main port of the country and the most important in the Southern Hemisphere), resulted in great disillusionment of the public with the centralized management model, despite reasonable management elsewhere.
To expand: 2018 saw some problematic events for the Port of Santos. The arrest of the São Paulo state docks company president Alex Oliva by the federal authorities was major. Despite his subsequent release, allegations of over 37 million Real (USD $10 million) worth of fraudulent contracts have forced him to step down from CODESP. This is to say nothing of the regular worker strikes within the port.  
The worker strikes that have sporadically plagued the Port of Santos in the last year and a half are one of the key reasons why a privatization model is being considered, given the port’s leadership role in the Federation. The unionized system of labor in the port is primarily protected through the mostly public-sector nature of Santos.
It is likely that this series of events caused the privatization of the port authorities and terminals to be discussed first, rather than simpler privatizations, such as the post office. 
The sector now understands that existing regulations are not appropriate to foster competitive development. Two groups stand in the limelight on this issue: the Docks Company of the State of São Paulo (CODESP), and the Port Authority of the Port of Santo. However, a third party has recently cropped up in the media, and is contributing to the conversation. 
Prumo Global Logistics is a firm that operates the Açu port in a de-jure TUP style, as is outlined in regulation 12,815. However, the port is actually operated in full by Prumo: the port administration and investment into infrastructures of common use is undertaken fully by Prumo and its subsidiaries, which means there exists an integrated private port management model that the regulation did not account for.
A debate likely taking place behind closed doors in Brasília is how to create regulations that account for this model and ensuring a more competitive space for the sector. CODESP and the Santo Port Authority advocate for revisions to the existing concession port model, whereas representatives of Prumo & Açu suggest a private integrated port management model may be best. 
What this Means for Foreign Investors in Brazil
During the "Investment Opportunities in Brazil" event held in Casa América, in Madrid on June 4th, special secretary of the Investment Partnerships Program (PPI), Adalberto Santos de Vasconcelos, said that, over the last 15 years, infrastructure investments were "insufficient" – never more than 2.5% of Brazil’s GDP.
Referring, again, to the presentations at the Rio de Janeiro port privatization forum from earlier this month, it becomes clear that the investments into Brazil’s port infrastructure are most likely to come from overseas. The China Merchants Group is a likely contender, as are Dutch Boskalis and UAE-based DP World. 
The worrying aspect of the privatization, according to critics, is the fact that Brazilian private businesses may be freely purchased by foreign SOEs. A layer of protection is offered by the public sector to these ports, who may end up in the hands of foreign governments otherwise. Naturally, Brazil’s national integrity would be more than threatened by this, which is why countermeasures are in the works.
Critics of the privatization process are numerous, ranging from economics and legal concerns to environmental and political arguments. Fernando Antunes, professor of constitutional law at the University of Brasilia, notes that the privatization has already negatively affected the general public through the sale of Petrobras subsidiary Transportadora Associada de Gás S.A.(TAG). 
UN Special Rapporteur on extreme poverty and human rights, Philip Alston, criticized initiatives that bet on over-reliance on private initiative as a provider of solutions. "If climate change is used to justify business-friendly policies and generalized privatization, exploitation of natural resources and global warming can be accelerated rather than avoided," says Alston. 
Once new regulations and plans are uncovered to the public, action plans will begin to be drawn up for the Brazilian port scramble. SOEs can’t hope for a complete privatization where ports will be up for acquisition – certain levels of protection will likely remain in place. However, most SOEs will remain interested in the Brazilian port arena as a place to contribute to the construction of green-field projects and securing contracts where it is feasible.
Fundamentally, the Bolsonaro government wants a competitive and commerce-friendly Brazilian port industry, and the internal reforms will take precedence. The actual attracting of foreign investments into the port sector is not a high priority, as long as productivity and competitiveness rise. This is something to keep in mind as the future of these reforms seem less ideological and more fiscal.