Equilíbrio econômico-financeiro: uma nova perspectiva em face do Estado Regulador

Abstract

This paper aims to deal with the traditional theory of economic and financial balance stability in public concession contracts, its forms and rebalancing hypotheses, based on Alias Theory, considering the incompleteness of the contracts and the implementation of the current tariffs policy developed by the Regulatory State, under the objectives of incentive, efficiency and competition. In order to achieve this goal, the present study analyses the traditional concepts of public service and its delegation within European Continental Law, highlighting its specificities in Brazilian legal systems and empirical conditions. My perception about an emerging new role for “Post Modernity State”, oriented by the attributes of efficiency and competition foster myself into the analysis of tariff regulation evolution within Brazilian Law and new regulation instruments currently adopted under strong influence of US legal framework. We could figure the existence of a wide and plural set of traditions being adopted in Brazil, highlighting: (a) the French tradition of concerning the contractual nature of service provision delegation and its “mandatory” economic and financial equilibrium, (b) the US doctrine of tariff regulation focused on the enforcement of a “fair price” and a “affordable tariff”, and (c) the UK traditional instruments of utilities regulation, like the adoption of “price cap” model, primarily in favor of the market efficiency. Those traditions are based on very different theoretical foundations assumptions and its simultaneous implementations in Brazil generate important policy puzzles. Trough empirical observation of the evolution of public concession contracts, specially focusing electrical power distribution companies last periodic regular reviews, we conclude over the need of offer a “get-together” doctrinal treatment to the principles of concession, the economic and financial balance stability of the contract and tariff policy. We perceive a natural incompleteness of concession contracts that lead us to the study of The Theory of Incomplete Contracts. We attempted to demonstrate the inadequacy of the risk mitigation traditional theory (Alias Theory) in comparison with the tariff regulation based on incentives, as well the apparently incapability between the economic and financial balance principle and the incompleteness of concession contracts explained by the volatility of market elements, changes in technological patterns and regulation instruments. Finally, we propose the adoption of an objective previous division of contract risks within the concession contract, independently from the nature of alias, defending its legally binding and constitutionality. We conclude discussing the search for a new perspective and landmark for the economic and financial balance principle in order to be compatible with the new roles of the Post Modern Regulatory State, suggesting the review of the principles considering its constitutional outcome, as well its balance among the other the other constitutional principles equally relevant.