Port and Waterway Law

The port sector operates under a dual legal regime. Facilities inside the organized port depend on a lease preceded by public bidding; facilities outside it operate under authorization, in a free-enterprise regime. Both routes lead to the same business — moving cargo — but impose different obligations, terms, minimum investments and regulatory risks.

Overlaying this design is ANTAQ’s regulation of open access, tariff practices and service quality, and a tax regime of its own, in which the nature of the activity — port services, storage, lease of space, assignment of infrastructure — determines which tax applies and which authority may charge it. It is common for the same operation to be characterized differently by the regulator, the municipal tax authority and the state tax authority, with mutually incompatible results.

Who we act for

• Terminals and port operators, in regulatory obligations and in cargo-handling and storage agreements
• Lessees and authorized operators, in contract performance and requests for economic rebalancing
• Companies in enforcement proceedings before ANTAQ or the port authority
• Companies assessed for ISS, ICMS or federal taxes based on the characterization of port activity
• Importers and exporters, in disputes over tariffs, demurrage and cargo retention
• Bidders in port area lease tenders

How we work

A port lease is a government contract preceded by public bidding, and ANTAQ is a regulatory agency. We therefore run this practice together with Administrative Law: challenging tender documents, seeking economic-financial rebalancing and defending enforcement proceedings follow the same logic as other public contracts, and that is the foundation we apply here.

The tax front receives the same integrated treatment. Assessments in the sector usually stem from how the activity is characterized — whether a given operation is a service subject to ISS (municipal service tax), a lease of space, or an activity ancillary to cargo handling. The defence depends on technically reconstructing the operation from the contract and the sector’s regulation, not merely on a tax-law theory.

Contract and regulation are also inseparable. A clause in a cargo-handling agreement may be valid between the parties and still conflict with an ANTAQ resolution on open access or tariff practice. That is why we review contractual documentation and regulatory compliance together, not in stages.

Scope of work

• Authorization of port facilities and private-use terminals (Law No. 12,815/2013, the Brazilian Ports Act)
• Adhesion, adaptation and extension of adhesion and lease agreements
• Participation in, and challenges to, port area lease tenders
• Requests for economic-financial rebalancing of lease agreements
• Cargo-handling, storage and port services agreements
• Compliance with ANTAQ resolutions on open access, tariffs and service quality
• Administrative enforcement proceedings before ANTAQ
• Sector tax litigation: characterization of the activity for ISS, ICMS and federal tax purposes
• Disputes over demurrage, extended stay and container retention
• Port labour and relations with the labour management body (Laws No. 12,815/2013 and 9,719/1998)
• Judicial and regulatory litigation in the waterway sector
• Environmental aspects of port facility licensing

Related practice areas

Tax Law · Arbitration and Litigation · Agricultural Law · Corporate Law and Commercial Contracts

To discuss a specific matter, please get in touch and schedule a consultation.