Os riscos nas concessões de uso de potenciais hidráulicos para produção independente de energia

Abstract

The purpose of the present study is to analyze legal repercussions on the concession agreements for the use of hydraulic potentials, of events which could be foreseen by the parts and which may eventually cause severe impacts on the costs of execution of the covenanted obligations, imposing a radical deviation from the initial economic planning. These agreements are characterized by a complex legal arrangement and involve high risks in their execution, due to the significant investments required, to the diversity of activities to be fulfilled and to the long term factor. At present, concessionaires and ANEEL itself are obliged to deal with this uncertainty about the applicability or non-applicability of the unexpectedness doctrine to this kind of agreement , its purposes and effects; this is caused by the inexistence of legal devices in relation to this question, by the lack of specific doctrine and legal decisions in what these agreements are referred. The study was developed on the basis of interviews made with ANEEL agents and also through specific research of administrative proceedings in progress in the Agency, in which the concessionaires claim for the review of their agreement conditions resulting from supposedly unpredictable and extraordinary events that severely affected the initial economic correlation. The study analyzed the scope of the agreements that have been celebrated, the legal principles applicable to the electric area, specially to the generation segment, the legal and constitutional devices, the doctrine and former court decisions about the unexpectedness doctrine. We took position in favour of the applicability of the unexpectedness doctrine to these agreements, through the review of the contract obligations, unless the event is previously considered in specific clauses. We concluded that the gap of material law recommends the edition of principles which may discipline this question and that the arrangement in the electrical area should expressly attribute to ANEEL the competence of conducting the agreement reviews, in order to fully carry out the legal attribution of managing the agreements, solving effectively the injunctions which may eventually arise