Routes to Lima | Stone Bridge | Toll stop: PM says TC ruling “a specific case”, but experts differ | MML | economy

Faced with the verdict, Rudas de Lima and its major shareholder Brookfield already expected to take legal action. Considering that Rutas de Lima has already started against the Metropolitan Municipality of Lima (MML) in the Temporary Tribunal of the United Nations Commission on International Trade Law (MML), the arbitration proceedings opened in this case will not be a novelty (UNCITRAL) last year.

Consulted by experts management, The Concessionaire's initiation of a new arbitration is key to knowing what will happen to the road in the short term. The concessionaire's objectives at that level will determine who bears the operating costs of keeping it roadworthy until a final decision is reached.

read more: Rutas de Lima describes the TC ruling on the toll as “arbitrary” and expects legal action

Uncertainty

In its ruling, the TC noted that toll collection will be suspended until measures are taken to prevent the violation of freedom of movement or until a court determines whether the concession agreement is illegal.

Confronted with this, Rutas de Lima recalled in a statement after the ruling that MML had already identified an alternative but to date they had not implemented it. Despite proposing solutions, the TC was not clear in its resolution as to who would be responsible for the operating costs of the road in question until one of the exits was reached.

Juan José Cárdenas, partner of Damma Legal Advisors, specialist in infrastructure, recalled that this dispute was a unique case because the TC's ruling was prompted by a request from a third party, namely an actor outside the concession agreement.

However, while Rutas de Lima alleges that it cannot pay for maintenance without wages, it points out that MML, the other party to the contract, cannot stop doing so since the toll was not the reason for the suspension.

“Privilege is not fragmented. They cannot say that I am only directing this part and not the other. “They will probably seek future compensation in arbitration and they will most likely get it, because the alternative is not their responsibility, but MML's.” Explains to management.

It should be recalled that in an interview with this newspaper, the mayor of Lima, Rafael López Aliaga, stated precisely that he hoped the TC would order the return of the booths to the Municipal Toll Administration Company (Emape) of Lima Sociedad Anonima. ) “Provided that vulnerable people are not charged”In reference to the neighboring countries of the Customs House.

For former Economy and Finance Minister Luis Miguel Castilla, Emappe could not do so because the TC ruling recognized a breach of contract on the part of MML regarding the facilitation of the alternative route.

“Unless there is an express clause that says otherwise, it should be the MML that uses its resources to take responsibility, even if it doesn't have the financial flexibility. We are talking about a major route. Pan American Highway North”, Videnza Instituto Executive Director points out.

Despite TC's lack of clarity, sources close to Gestión assured that Rutas de Lima will continue to execute the offer in Panamericana Norte in accordance with its contractual commitment.

It should be remembered that other lawyers consulted by this newspaper also criticized that the TC was not clear in its ruling on who will build the alternative road and the deadline for its completion (gestion.pe 03/09/2024).

read more: TC order to suspend toll collection at Puente Piedra, what implications does it have?

Breaks the economic equilibrium

After knowing the TC verdict, The president of the Council of Ministers, Gustavo Adrianson, pointed out that Rutas de Lima's case does not have to be negative for foreign private investments in Peru.

“This is a particular case where a fundamental right has been affected, according to the interpretation given by our Supreme Court as free movement, but I do not believe that this should be replicated elsewhere”Punished.

However, according to lawyer Cardenas, the Prime Minister does not know that the TC's decision breaks the concept behind any toll or fee. “It breaks the economic logic behind it. It's a very bad precedent because it creates risks for any investor who has contracts with the state. “Any third party can seek to suspend clauses of your contract.” considers

In the same sense, Castilla believes that the TC has set a disastrous precedent for any public-private partnership, concession projects, but above all legal certainty.

“It breaks the fiscal balance, at least momentarily. It's going to be harder than that ProInversion Tender the future roads because under that logic any citizen can refuse to pay. “This kind of news spreads internationally.” warns.

Cárdenas says the TC did not take into account all the implications its ruling could create for the economic system in general, and business well-being in particular.

“In addition to the Ruadas de Lima, more than one process may be initiated in the concession agreement. Parties such as Brookfield may also invoke arbitration through these agreements based on bilateral investment treaties between states. Refers to Partner at Damma Legal Consultants.

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