Port contracts are entered into to last for decades. Over that interval, operations change, new demands emerge, investments are incorporated, and conditions that seemed stable at the time of contracting may take on a different economic dimension over the years. The problem does not lie properly in the change itself. It lies in what happens when it alters the equation that sustained the contract and its financial effects are not adequately identified—that is, when it alters the well-known economic-financial rebalancing.
Provided for in the legal regime of concession contracts and applicable to the logic of port leases, this mechanism seeks to preserve the economic conditions established between the parties. This does not mean ensuring profitability for the private party or eliminating risks inherent to business activity, but rather verifying whether a given event is within the risks originally assumed or whether it has modified, in a legally relevant manner, the bases on which the contract was structured.
This distinction is of great importance in the port sector. Changes in the type of cargo handled, new investments, regulatory modifications, and other changes that occur during execution can produce effects on revenues, expenses, and contractual obligations. When this happens, the discussion ceases to be merely legal and reaches the cash flow of the enterprise.
And there is an aspect often overlooked: rebalancing does not exist solely to offset any losses to the private operator. The preservation of the economic-financial equation works in both directions. If a contractual alteration produces gains that were not contemplated in the original structure of the business, there may also arise the need to assess its repercussion in favor of the granting authority.
A recent decision by the Brazilian Federal Audit Court (TCU) helps demonstrate this dynamic. In Decision No. 2,658/2025, the TCU analyzed alterations made to the lease contract for the Vehicle Terminal at Santos Port (TEV). Originally intended for the handling and storage of vehicles and CKD, the contract was later altered to also permit the handling of general cargo.
The question examined by the Court was precisely whether this expansion could produce economic effects not considered when the contract was originally structured. Accordingly, the TCU ordered the Santos Port Authority to reassess the alterations based on the projected cargo movement for the terminal and to effect economic-financial rebalancing to enable the sharing of any extraordinary gains with the granting authority, or alternatively, to submit a duly reasoned justification for its waiver, following evaluation by ANTAQ.
The case is interesting because it shifts the discussion of rebalancing away from an exclusively defensive logic. It is not merely a matter of asking whether the contractor suffered an unexpected loss. It is a matter of verifying whether the economic conditions that justified a given contracting continue to correspond to the reality of the enterprise after the alterations made over the course of its execution.
This analysis demands constant attention. In long-term contracts, minor modifications may seem to have little relevance when viewed in isolation. But changes in the operational profile, in sources of revenue, or in assumed obligations can produce important cumulative effects. The longer a distortion remains unidentified, the greater its economic repercussion may be.
``` ```htmlTherefore, rebalancing should not be addressed only when conflict is already established. Contract management must monitor not only formal compliance with obligations, but also the economic effects of changes occurring during performance. This requires adequate documentation, understanding of the risk matrix, and the ability to identify when a given event belongs to the normal dynamics of the business and when it exceeds what was originally agreed.
For operators, the path is to prevent extraordinary obligations from being silently absorbed by cash flow when legally they should receive different treatment. And the conceding authority must equally prevent that subsequent changes create economic benefits not considered in the modeling without the corresponding evaluation of their effects on the contract.
This may be the central point: economic-financial balance does not protect one party against the other, it protects the economic logic of the contract itself. And, in a sector where contracts span decades and investments are made continuously, monitoring this equation is not merely a legal concern, but a management issue. The problem of rebalancing does not begin when litigation arises, but rather when a contractual change produces economic effects and nobody perceives, in time, who should bear them.
*Paulo Franco (paulo.franco@francoadv.com) is founding partner of Franco Advogados and an attorney with over 20 years of experience in high-complexity litigation and business structuring, with notable practice in the port and infrastructure sectors. https://www.linkedin.com/in/paulo-franco-319b4519
