Thiago is a partner at Mattos Filho who focuses on construction and complex contracts, including onshore and offshore contracts, equipment supply contracts, contracts typical to the oil and gas industry (e.g. charter agreements, O&M agreements, FPSOs, DPUs and platform construction contracts, and gas supply contracts), take or pay contracts, contracts related to the hotel industry (e.g. construction of hotels, built to suit, hotel management agreements and franchising), as well as project development and infrastructure-related transactions.
His experience includes advice to owners and contractors on the preparation, negotiation, pre-litigation and arbitration involving complex contracts. He has substantial experience in sectors such as energy, ports, airports, subways, railways, shipbuilding, and oil and gas.
Prior to joining Mattos Filho, Thiago worked for the Inter-American Investment Corporation (IDB Group) in Washington, D.C. He is a member of the Society of Construction Law in London and is currently the Co-Chair of the Project Execution Subcommittee of the International Construction Projects Committee of the International Bar Association – IBA.
Bachelor of Laws, Pontifícia Universidade Católica do Rio de Janeiro
Extension Course Program in Negotiation for Lawyers – Basic Negotiation, Harvard University, Boston, United States
Post-Graduation degree in Construction Law and Arbitration (LL.M.), Robert Gordon University Aberdeen Business School, Scotland
Análise Advocacia 500 – Business Contracts (2020; 2021)
Chambers Global – Projects (2018 – 2021)
Chambers Latin America – Projects (2018 – 2021)
IFLR 1000 Financial and Corporate – Rising Star: Energy and infrastructure (2015 – 2016), Project Development, Project finance (2017 – 2019); Highly regarded: Project Finance, Project Development (2022)
The Legal 500 – Next generation partners: Projects and infrastructure (2019 – 2022)
Latin Lawyer 250 – Energy (2020 – 2021)
Who’s Who Legal Global – Construction (2020 – 2021)
Who’s Who Legal Brazil – Construction (2018 – 2021)
Who’s Who Legal Thought Leaders – Brazil – Construction (2021)
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On August 7, 2019, the Presidency of Republic enacted the Decree No. 9,957 (“Decree 9,957/2019“), regulating the proceeding to return public private partnerships and common concessions (“PPP”) in transport sectors (toll road, airport, railway), by mutual agreement between the private partner and the Government, for submission to a new bid (or “PPP return proceeding”), which refers the Law No. 13,448, June 5, 2017.
Decree 9,957/2019 seeks for the continuity, lawfulness and efficiency of the public services in transport sectors, as well as the clearness and suitableness of the government agencies’ decisions regarding the rebid proceeding.
In this sense, we highlight the main aspects of the Decree 9,957/2019:
(i) PPP return proceeding request: among other provisions, the first private partner shall submit a written request, considering (a) technical information to justify the convenience and opportunity to justify the PPP return (b) statement (irrevocable and irreversible) regarding the intention to start PPP return proceeding, (c) withdraw its participation in the new bid (including the direct and indirect shareholders), (d) information about the reversible assets, financing agreements, agreements with third parties and bankruptcy, extrajudicial or judicial recovery of the concessionaire.
(ii) Qualifying process: (a) the regulatory agency shall assess the feasibility of the PPP return proceeding and declare its opinion; (b) after the regulatory agency’s declaration, the Ministry of Infrastructure shall assess the suitableness of the request regarding the public policy of the sector; (c) then, the Council of the Program of Partnership of Investments (“PPI Council”) shall receive and evaluate the declarations of the regulatory agency and Ministry of Infrastructure in order to give your opinion regarding the PPP return proceeding; (d) the Presidency of Republic shall decide about the PPP return based on the PPI Council’s opinion.
(iii) The hiring of an independent audit company: the regulatory agency shall hire an independent audit company to support the PPP return proceeding.
(iv) The request of judicial recovery and bankruptcy: the amendment to the initial PPP agreement shall provide that the concessionaire will not request bankruptcy, extrajudicial or judicial recovery, until the termination of the PPP agreement.
(v) Indemnification regarding the reversible assets, not yet amortized or depreciated: the Government shall discount (a) the fines and others non-tax amounts due to the granting authority not complied until the date of the indemnification payment, (b) payments due to the Government until the termination of the PPP agreement and the payments default until the date of the indemnification, (c) the excess tariff amount regarding the suspension of the non-essential investment obligations, upon the execution of the amendment to the PPP initial agreement.
(vi) Calculation of the indemnification: the complied and overdue payments due to the Government, including goodwill, shall not be considered to the calculation of the indemnification.
Decree 9,957/2019 is essential to the Government take a step forward regarding PPP returns ongoing (such as Viracopos Airport and the BR-153 highway), contributing to the fulfillment of the Government’s concession agenda.
The Law No. 13,848/2019 (“Regulatory Agencies’ Law”), which provides rules of management, organization and social control of regulatory agencies, was sanctioned.
The law intends to guarantee functional, administrative and financial autonomy and to provide a greater transparency to regulatory agencies. The Law also establishes requirements of certain professional experience in the area of the regulatory agency.
In addition, we highlight below a summary of the main innovations brought by the “Law of Agencies”.
- Establishment of rules on decentralization of the activities of regulatory agencies;
- Regulation for agencies directors’ loss of mandate;
- Duty to adopt a periodic strategic plan;
- A five-year term to the Chairmen, without reappointment;
- Creation of an Ombudsman office, with a three-year term, without reappointment;
- A six month “quarantine” for ex-leaders to work in the regulated sector;
- Adoption of risk management and corruption prevention practices by agencies;
- Prohibition of delegating normative powers to state and municipal regulatory bodies when there is cooperation between them and the regulatory agencies;
- Provision of financial autonomy and the law extension for the Administrative Council of Economic Defense (“CADE”);
- A compulsory Regulatory Impact Analysis, for any normative act that interests economic agents, consumers or users of the services provided by the regulated sector.
Some provisions were vetoed by the Executive Branch. Among them, the three-name list for the agencies’ members selection. According to the government, the measure unduly restricted “the constitutional competence conferred to the head of the Executive Power” to indicate the Directors.
Another veto imposed was to the provision for a mandatory annual submission of the agencies’ accounts to the Senate, for accountability purposes. The ban on reappointment of current directors was also rejected.
There was also a veto added to the section that determined a 12-month quarantine for the appointed Directors that were affiliated to private companies.
Now all the vetoes will be voted in a joint session of the National Congress, which holds the final decision.
The Law shall enter into force 90 (ninety) days after its sanction.
For more information, please contact the partners of the Infrastructure and Energy practice of Mattos Filho.
Areas of expertise
The National Agency for Petroleum, Natural Gas and Biofuels (Agência Nacional do Petróleo, Gás Natural e Biocombustíveis – “ANP“) published on May 23, 2019 the ANP Resolution No. 789/2019 (“Resolution“), incorporating the recent amendment approved by the International Maritime Organization (“IMO“) regarding the reduction of the maximum sulphur content on maritime fuel oil.
Therefore, from January 1, 2020 the maximum sulphur content allowed at marine fuel oils in Brazil is reduced from 3.5% to 0.5%. Vessels with an exhaust gas cleaning system (scrubbers) will be allowed to use marine fuel oils of up to 3.5%.
The full Resolution can be accessed here (free translation to English).
The reduction of sulphur levels has been discussed for years by the global maritime industry. The IMO initially approved the reduction in 2008, however, only in 2016, the IMO confirmed that the reduction should be effective from January 1, 2020 (“2020 Reduction Goals“).
In October 2018, the IMO approved an amendment to Annex VI of MARPOL 73/78, aiming to support the implementation and compliance of the 2020 Reduction Goals by member States.
This month, the IMO has issued the “2019 Guidelines for a consistent implementation of the 0.50% Sulphur limit under MARPOL Annex VI”, which is available on this link. The IMO has also approved new amendments to the Annex VI of MARPOL 73/78.
More information is available on IMO’s official website on the following links:
- Summary of the 70th Section of the MEPC/IMO, in 2016;
- Briefing on the approval of the implementation date for the new sulphur limit;
- Summary of the 73rd Section of the MEPC/IMO, in 2018;
- Briefing on the adoption of the new sulphur limit pursuant to Annex VI of MARPOL;
- Summary of the 74th Section of the MEPC/IMO, in 2019; and
- Briefing on the additional guidance to support the implementation of the new limit.
Areas of expertise
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