On 29 January 2014, new Brazilian anti-corruption legislation came into force. It introduced a mechanism of direct corporate liability for fraud, bid rigging and bribery of both domestic and foreign public officials. In particular, the Brazilian Clean Companies Law prohibits “to promote, offer, or give, directly or indirectly, an improper benefit to a public agent, or to a third person related to him;”, and any “efforts to hinder the investigation or supervisory work of public bodies, entities, or agents, or to intervene in their actions”. The new provisions do not comprise a statutory exception for “facilitation payments”. As means to enforce these new substantive provisions, Brazilian authorities are vested with the power to impose fines amounting (up) to one fifth of the respective company’s annual revenues. If necessary, Brazilian authorities can also restrict the company’s access to the Brazilian market. To do so effectively, they may exclude perpetrating companies from public financing, seize their assets, partially suspend their activities or dissolve the legal entity. In order to keep potential loopholes to a minimum, the Brazilian Clean Companies Law prolongs any corporation’s liability to its successors. Given that Brazilian authorities still lack clear guidelines on how to apply their new “ABC” rulebook, businesses should remain attentive and adopted their internal mechanisms and procedures once the required standards are communicated. Yet it became clear, that Companies conducting business in Brazil may now have a greater incentive to shift towards conducting internal investigations: the Clean Companies Law stipulates a framework to reach leniency agreements with Brazilian authorities, which allow for cooperation between internal investigators and public administration.
Nicolai Behr is a compliance and dispute resolution attorney in Baker & McKenzie’s Munich office. He is a member of the steering committee of GlobalComplianceNews, a compliance news website with global reach moderated by Baker & McKenzie. He is a member of the committee "International" of the German Institute for Compliance. Dr. Behr is a regular speaker on compliance and white collar topics.