Risco Político em Contratos de Parceria no Brasil: Normas Aplicáveis, Incentivos e Eficácia

Abstract

The dissertation has as its central theme the political risk in partnership contracts. The partnership contract is a genre that designates several types of administrative contracts that contemplate relevant and long-term investments. The most representative being the common concession, sponsored concession and administrative concession contracts. The investments provided for in such contracts are amortized and remunerated during the performance of the contract by the revenues generated by the project. Therefore, there is great concern (i) in allocating risks to the parties that are better able to manage them and deal with the consequences of their materialization, and, (ii) with the effectiveness of the risk allocation. A legal analysis of how political risk manifests itself in these contracts is carried out in this work. It is proposed that such risk manifests itself through (i) fact of the administration (fato da administração), (ii) fact of the prince (fato do príncipe), (iii) exercise of exorbitant clauses, and, (iv) other unlawful state conduct that affects the partnership contracts. The work assesses the applicable rules for the risk allocation and mitigation, the incentives for the non-materialization of the risk, or, if this occurs, for its remediation. The work also contains an analysis of judicial and arbitration cases involving concessionaires and the Public Power. The case study aimed to analyze the effectiveness of judicial and arbitration processes to remedy materialized political risks.