O project finance como modelo de viabilidade econômica do desenvolvimento nacional

Abstract

The Constitution of 1988, in line with the dictates of a democratic state, assures Brazilian citizens and foreigners residing here, numerous guarantees and fundamental rights, which shall be assured and provided by the State. At the same time, the Brazilian Constitution and the legislation appoints the legal and appropriate mechanisms to make feasible and viable the access by all citizens to such rights and guarantees. Thus come to us the idea of public interest and also the concept of public service, the usual means to take the citizens' access to various fundamental rights. These services are essential to provide a minimum of dignity and citizenship in its fullness, and shall be provided by the State. However, not always the State shows itself able to provide these services directly, which, in turn, does not prevent its observance, in order of the mechanisms to expand its capacity, such as the cases of concessions, permissions, and more recently, public-private partnerships, in accordance with Law No. 11.079, of December 30, 2004. By these means the State transfers to a private individual performer of economic activity, the provision of essential services such as occurs, for example, in the areas of energy and infrastructure. Despite all this scenario, apparently simple, certain services and projects require very substantial investments that not often neither the State, nor the private agent, even if working together, hold economic capacity to execute and implement it, bringing, thus, the question of how to proceed with the achievement of public services, essentials in its nature, in a context of economic limitations, especially when such utility is indispensable for national socioeconomic development, or even because of the extreme importance in a constitutional point of view as in cases of necessity to ensure social inclusion for all, allowing the full exercise of citizenship. We therefore need to overcome economic obstacles to the achievement of higher goals, aimed to reach the fullness of our democratic legal system. The economic viability sought to carry out projects aimed at national development and the inclusion of all as well as the scope of the unconditional provision of basic services, can be given by observing the model called project finance, commonly seen and used in foreign jurisdictions such as European and North American States which, in recent years, has been revealed as a viable alternative on local soil, attracting the need for a detailed legal analysis of its expression and observance. Therefore, the improvement of the knowledge renewal about the legal ways of overcoming the economics limitations is essential for socioeconomic development in order to provide more contemporary democratic society dictates. Turns quite necessary the study of the normative field that governs the economic viability of major projects of national structure, which permits social inclusion and is able to comply with the principles that govern the social and economic orders, in a way to contribute to its development, seeking the overcoming of the limitations faced to our own national development