Peru’s Ositrán Cites Pucallpa Port as Key Precedent in Chancay Dispute

Peru’s regulatory agency for transport infrastructure, Ositrán, is preparing to appeal a recent court decision that excludes the Port of Chancay from its oversight, citing a similar case involving the Terminal Portuario de Pucallpa (LPO Logistics) as a key precedent. The move comes as Ositrán seeks to solidify its authority over privately-owned ports with public access, a case with significant implications for investment and regulation within Peru’s growing port sector.

The “Similar” Port to Chancay

According to Ositrán President Verónica Zambrano, the agency already oversees operations comparable to Chancay – specifically, LPO Logistics, operated by Grupo Romero. LPO Logistics operates a fluvial port on the Ucayali River. Despite not being a traditional concession, Ositrán currently supervises and regulates its services.

“We supervise what are called service providers. What we have is a concept included in our law and recent modifications to the National Port System Law,” Zambrano explained.

LPO Logistics includes a dedicated section on its website for complaints, specifically stating that Ositrán is the public entity responsible for addressing them and that an “user attention office” is located within the terminal’s administration area.

Ositrán supervises key services at LPO, including verifying the suitability of services provided to users, ensuring they have relevant information, and compliance with the complaint procedure approved by the regulator, where Ositrán acts as a second instance. The agency also has the authority to conduct inspections, request information, and enter the port terminal to verify service conditions and gather information.

Zambrano emphasized that this precedent is crucial for Ositrán’s position in the legal battle over Chancay. “It’s an example… Our main argument is to indicate that we are competent because we have the capacity to supervise service providers. Cosco Shipping is one of them,” she stated.

Consequences of Ignoring the LPO Example

Zambrano previously warned that if Ositrán is unable to supervise the Port of Chancay, its users “would be left unprotected.” She further detailed the potential consequences, stating that if the court’s decision is upheld, Ositrán personnel would be barred from accessing the port under any circumstances.

“There would be no possibility of entry or seeing anything related to that port. We wouldn’t know how many users they have, how they are treated, what services are provided, or verify that the information they give us is correct,” she said.

This would also prevent the port from being subject to sanctions by the regulatory body. “We could never sanction them. At LPO, we go and verify. So far, it’s a company that has complied and we haven’t sanctioned them. If they prevented us from entering the port or denied us information, we could fine them. With Cosco, we couldn’t,” Zambrano explained.

Zambrano clarified that there is no legal difference between LPO and Chancay. The fact that LPO is a fluvial port and Chancay is a maritime port does not make them unequal. “That’s why the use right is called an aquatic area, not maritime or fluvial. The classification of ports is by institutional private or public with uses of those same categories,” she added.

APN’s Role

Cosco Shipping has argued that while Ositrán may be restricted from supervising Chancay, other Peruvian state entities already do, including a physical presence at the port. The primary entity is the National Port Authority (APN), which authorized Cosco’s investment in Chancay.

Cosco stated that the Port Law expressly attributes to the APN the responsibility of safeguarding user rights, including alternative systems for resolving disputes between operators and users. However, Zambrano noted that in practice, Ositrán has been the entity handling these cases.

“Ensuring labor rights does not mean that Sunafil loses its capacity. The APN has always interpreted it as meaning that if they detect irregularities, they notify us. They have never taken a case. All the protection of users is in Ositrán,” she pointed out.

According to the president of the regulator, if the court does not change its decision in higher instances, there is a risk that other port terminals will decide not to comply with Ositrán’s requirements, understanding that they only need to comply with the APN. “It would be terrible because it’s an interpretation of port law and would apply to everyone, not just Cosco or LPO. Complaints that we see today would have to go to the APN because there is no duplication of functions in the State,” she warned.