Transformation of port structures often requires new legislation. This module identifies fundamental points to consider when developing such legislation, with examples from existing port reform regimes, although the examples provided should be used for reference purposes only. Because every country has a unique legal and institutional context, it is impossible in practice to present a model law that fits the wide variety of fundamentally different legal systems. With such a diversity of legal and policy regimes worldwide, the exact purpose of a port law may vary from country to country. Sometimes an existing law is changed to accommodate new institutional structures that were made necessary because of changed socioeconomic conditions. Other times, a law lays the groundwork for the public sector to participate in port development and infrastructure investments, or enables the private sector to carry out port activities that previously resided in a public sector monopoly. The reference provisions presented in this module are not meant to cover completely each and every issue. They have been derived from a large variety of laws, regulations, and contracts. They are meant to be used as tools for port reform to shape the legal foundation for marketable and bankable regulatory and contractual arrangements.
The examples are derived from a variety of institutional structures covering not only tasks and responsibilities of port authorities, but also related institutions such as a national ports council (or commission), a port fund, and others. In the case of a port authority that is part of a municipality, no specific law is necessary because the legal basis of such authority is part of municipal legislation. However, the fundamental elements of this module might still be considered in drafting such legislation.
It is often thought that the sole purpose of a ports law is to create an institutional framework to develop and manage seaports. It should, however, be emphasized that a ports law should also establish a flexible business framework that enables a port authority to compete successfully in national and international transport markets.
It is often thought that the sole purpose of a ports law is to create an institutional framework to develop and manage seaports. It should, however, be emphasized that a ports law should also establish a flexible business framework that enables a port authority to compete successfully in national and international transport markets.
A ports law often creates one or more port authorities, as well as a host of other port-related bodies, such as a ports council/commission or similar advisory or regulatory body. It might also set operational conditions for private operators. Finally, such a law may regulate organizational and financial relations between public organs (such as the state, regional governments, or municipalities) and the maritime administration.
There are various legal acts that relate to ports policy, port management, and port operations. Therefore, when discussing port laws in this module, the expression “port law” includes among other policy laws, port competition laws, port privatization laws, harbor regulations, and statutes of (public) port enterprises.
Particularly in countries where the port sector is still under development, the national government has an important role to play. This role may be expressed in a national ports policy formally authorized by the parliament. The preparation and implementation of this policy usually is the responsibility of a transport or port ministry.
Sometimes, to involve major sectors of the ports community in the development, a national ports commission (or ports council) is established by law. Generally, the commission has an advisory role. The general objective of a national ports commission is to provide input to the development of a national ports policy. Generally, the commission provides this advice to the council of ministers through the minister of transport.
Commissions may be asked to contribute to the development of the national ports policy by offering advice on:
The president and or chairman and the members of the commission should be appointed from among persons with extensive experience in port management; shipping; inland transport; commercial, financial, or economic matters; applied science or the organization of workers; or have demonstrated their ability in other fields of port-related operations (including the fishing and the shipbuilding industries, in particular).
If a country decides to institute a ports commission, it should be empowered with the necessary tools to function effectively. Therefore, a ports commission should be assisted by an executive secretary and a small professional staff. Members of the staff should receive remuneration in accordance with applicable conditions for civil servants. Finally, the costs of the commission should be borne by the state to ensure its independent status.