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Anticorruption Law in Brazil

Por :

20/08/2013 21:00 Demarest News

 

In response to repeated international demands and the public protests that took place in the past weeks, President Dilma Rousseff sanctioned Law no. 12846/2013, also known as Anticorruption Law.

Among other innovations, the law establishes the administrative and civil liability of: (i) legal entities that perform a wrongful act against the domestic government or a foreign government, whether local, state of federal, as well as (ii) managers, executives or any individual that in any way has participated in the wrongful act.

The law also establishes that controlled and controlling companies, associated companies and companies that are members of a consortium or succeeded another company are jointly liable for any wrongful acts performed. Among the wrongful acts against a government are: (i) giving of bribe; (ii) financing of wrongful acts, (iii) unlawful financing of political campaigns; (iv) impediments to and frauds against bidding processes; (v) undue advantages and benefits arising from contracts with the government; and (vi) manipulation of the economic and financial balance of contracts with the government.In the administrative sphere, the law prescribes severe penalties, as, for example, (i) fine corresponding to up to 20% of the gross sales for the past year or up to R$ 60 million if the gross sales cannot be determined and (ii) extraordinary publicity of the adverse judgment.

Thus, investing in compliance, policies to prevent wrongful acts, in training of employees and in the adoption of efficient prevention and control procedures assumes growing importance to endorse the good administrative practices.

The compliance policies are of particular relevance because, under the new law, they may diminish the punishment. The law also provides for the agents' judicial liability, regardless of an administrative procedure. Within the Judiciary, the Government and the Prosecution Office will have authority to file actions involving the imposition of different punishments, among them, forfeiture of assets; suspension or interruption to part of the activities of a legal entity; or mandatory dissolution of the company. These demands will follow the procedures of a public-interest civil action and an adverse decision will impose the obligation to indemnify in full for the damage caused.

Because of the success of the leniency used by Brazilian Antitrust Authority [CADE], the new legislation adopted a similar system, and the companies had to rush into laying information as only the first one to do so benefits from the fine reduction by up to 2/3, which is sufficient for such company to be put in a more favorable market position than that of its competitors.

Law no. 12846/2013 will be effective from January 28, 2014. We will be only too pleased to provide further details and comment aspects of the new law.

We take this opportunity to invite you to participate in the debate about "Compliance and Relations with the Government" that will be held on September 5, 2013, in our firm in São Paulo/SP (Av. Pedroso de Moraes, 1201, Pinheiros), from 8:30 to noon. Limited seats.

To register, please send an e-mail to: eventos@demarest.com.br or contact us by the phone number (11) 3356-1887.

 


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