La viabilidad jurídica de implementar modelos de participación público-privados en el sector de la vialidad en el Ecuador

摘要

The "Public Private Partnerships" mechanisms regarding the construction of civil engineering works and management of public services in the infrastructure sector are varied. "Modernization of the State, in which the Latin American countries are engaged, has led to formulate new management models to implement the civil engineering works and public services, where joint public-private participation aims to improve the provision of services" (Maino V, 2013, p. 11), this implies attracting resources other than State private sources, and establishing higher management standards in the areas traditionally reserved to it. The materialization of these decisions in Ecuador is implemented through the State Modernization Law, where it was established that "all the powers of the CONAM, shall be exercised by the National Secretariat of Planning and Development (SENPLADES). (LME, 2007) Governance can serve as a useful tool for the execution of civil engineering works, provision of services and the exploitation of productive activities; all of them of public nature or purpose. The State's involvement model in the private sector and vice versa, with the implementation of Public Private Participation (PPP) can become a mechanism, which invoking the existing legal regulations in the country, will allow the implementation of public services such as roads by the private sector. Taking into account the legal regime and scope of law, we will base our analysis in the Constitution of the Republic of Ecuador, which is the regulatory body that basically regulates the modernization of the State through various mechanisms of partnership as the State Modernization Law, with the legal options of public-private partnership to: mixed enterprise, Joint Venture; privatization of public enterprises and services; and delegations. Emphasis on strict compliance with regulations related to technical approval of groundwork for roadwork is included in the General Bylaws of the State Modernization Law. As it will be justified throughout this work, the implementation of PPP in the road sector is legally viable given that the legal code provides that, under certain assumptions, the implementation of such management models is feasible.