Lawyers identify impacts for companies


The new Anti-Corruption Law can be viewed in two ways, according to lawyers. One is absolutely positive. “The law elevates the country. It is worth remembering that Brazil had made an international commitment to have a law of this nature [in the late 90s, it was a signatory to the OECD Anti-Bribery Convention], ”said Leonardo Machado, partner at Machado, Meyer, Sendacz and Opice and a seminar debater on the New Anti-Corruption Law, promoted by Valor and ETCO - Brazilian Institute of Ethics in Competition.

The other way is negative. The new law creates risks for companies because it raises a series of doubts and, therefore, legal uncertainty. One of the problems results from the coexistence of other laws with similar objectives, such as the one governing tenders. “[In this scenario], what we call in law 'bis in idem' can happen, that is, a company is at risk of being double or triple punished. The multiplicity of laws also creates another problem, which is that of the multiplicity of actors, ”said Machado. Thus, in addition to the States and the Union, more than 5.500 mayors can sue a company.

An innovation of Brazilian law is the adoption of strict liability. This means that the company involved in the corruption will be penalized regardless of the existence of intent or guilt. "In criminal law, the central point is that there is no sanction without deception or guilt," said Isabel Franco, partner at Koury Lopes Advogados. The same happens in the FCPA, where the so-called subjective responsibility prevails. Another novelty, according to Isabel, is the fact that the company is liable for an illegal act carried out on its behalf by anyone. “It may not be the manager of the company who ordered the wrongdoing. It could be a third party, a lawyer, a dispatcher, ”he said.

In order to avoid the possibility of the company being called as solidarity in the illegal act, lawyer Shin Jae Kim, responsible for the compliance area and a member of the Management Committee of TozziniFreire Advogados, recommends triggering “red alerts” with suspicious partners. "It's what we call 'red flags'," said Shin.

One point that experts hope for an improvement is regarding leniency agreements. In this type of agreement, whoever is involved in the infraction agrees to collaborate in the investigation, presenting evidence that contributes to the elucidation of the case and the discovery of the culprits. Law 12.846 does not mention immunity for individuals who collaborate and decide to enter into such agreements. “The law has several technical points to be improved. This is one of them, ”said Machado.

Another problem pointed out by Leonardo Machado is in the nickname that the new law won. A company that gets sued will receive the stigma of being corrupt, he says. "In this sense, the law can serve as an additional pressure mechanism to be used by non-judgmental administrators," he said. In his presentation during the seminar, the general controller of the municipality of São Paulo, Mario Vinicius Spinelli, made a similar reflection. Jorge Hage, Minister of State in charge of the Federal Internal Affairs Department, in turn, called the legislation the Clean Company Law.

Source: Online Value