La reciente ley regulatoria del contrato de participación público privada en argentina

Abstract

A Public-Private Partnership is a mechnism which has been used since the beginning of the 90’s for the development of big public work with technical complexities that surpass the capacity of  state staff, and where the volume of resources necessary were at odds with the usual cronic limitations on the part of the states. The first experience of implementation of a PPP was the “Eurotunnel”. The PPP model was not something new in itself, since it is a updated versión of an old category of the administrative contracts of colaboration, as old as administrative law itself, but in a more valued version and where the management of public obligations – for the same technical and financial limitations – did not leave any alterntive to the State of realizing them by itself, depending exclusively on the resources the State could obtain with the  private sector as a condition  to bring them into reality. In this scenario, and so that the latter occurs (private participation in big projects for the direct benefit of the population), the values of efficiency are overestimated (understood in terms of the return for the private party for the work and the capital invested) and juridical safety, the latter key in latinamerican countries in general, which do not have a trajectory of estability of normative acts and respect for the rules of the game. However, there has been a movement in the south part of the American Continent to strengthen the normative regimes in order to offer guarantees to investors to put money towards such PPP projects, either by reforming laws that govern contracts of the type “concession” or by generating new regimes that treat PPP’s as an autonomous contractual type, the latter happening in Argentina by means of law 27.238, enacted at the end of 2016. In this article, we will explore the provisions of such normative text brings in light of the principles that inform – or should inform – the negotiation philosophy of PPP’s.