The Volkswagen case and the ethics of large companies

The unfolding of the anti-pollution controls fraud practiced by Volkswagen in the United States raised a series of questions and controversies. Who initiated and covered the cheating? Although the CEO and several other senior officials in the company have resigned or been sent out, there are still obscure points.

Most important owner of VW, with 20% of shares giving it a right of veto in the direction of the firm, the State of Lower Saxony (one of the 16 states of Germany), did not know anything, as declared by the Minister of Economy of the State (Lander).

Source: Uol Notícias (30/09).

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Triple list sent to Dilma Rousseff shows interest in fighting the billion dollar market in corruption in Brazil

A expressive vote of the current attorney general, Rodrigo Janot, in an election held by National Association of Public Prosecutors (ANPR) this Wednesday (5), shows that, at least within the category, the level of objections to the work to combat corruption is quite small.

It is undeniable that Janot's role in conducting part of the work of the Operation Lava Jet, which investigates a wide scheme of payment of bribes by contractors to executives of the Petrobras, helped the prosecutor to gain prominence and, consequently, approval by the public opinion. Therefore, it was not surprising that 81% of the voting voters chose it.

Source: Brasil Post website (06/08)

 

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Penal Code reform strengthens protection of intellectual property

Bill, which is due to be voted on in the coming months, also includes corruption in the category of heinous crimes
Bill, which is due to be voted on in the coming months, also includes corruption in the category of heinous crimes

The draft reform of the Penal Code (PLS 236/2012) should be voted on this year. This is expected to happen in the coming months, because on December 10, Senator Vital do Rêgo (PMDB-PB), rapporteur of the project, presented the substitute to the project to the Senate Constitution and Justice Commission (CCJ).

Some changes foreseen in the new code have strong synergy with the work of the Brazilian Institute of Ethics in Competition - ETCO. The list of heinous crimes, for example, must be expanded, including acts of corruption among them. Intellectual property should also be better protected, through art. 178, § 2, item I, which criminalizes the conduct of filming audiovisual work without authorization - one of the most common forms of piracy today.

Still in relation to intellectual property, there was a proposal to change art. 184, but it was not accepted. Thus, the criminal action, in the crime of violation of copyright, remains public and unconditional, and not private, as proposed. Usually, private criminal action is used for crimes that affect the victim's privacy and not society, which does not apply in the case of copyright.

The new code also increases the punishment in the case of slave labor and animal abuse and makes the progression of sentences more rigorous. Today, primary convicts can face half-open prison terms after serving one-sixth of their sentence. The term must change to a minimum of a quarter of the penalty. The text also simplifies processes and encourages consensual conflict resolution, in order to relieve the Judiciary.

Also in December, after five years of processing, the Senate approved the draft of the new Code of Civil Procedure. As in the Penal Code, incentives for conciliation are foreseen, among other measures to speed up the judgment of actions across the country.

Machado Meyer and ETCO discuss impacts of the Anti-Corruption Law

Part of the companies' agenda since it came into force last January, the Anticorruption Law has generated new demands in the Brazilian business environment. The issue, which still raises many doubts and questions, was debated on Friday, 19/09, in an event promoted by Machado, Meyer, Sendacz and Opice Advogados, in partnership with the North American firm Norton Rose Fulbright and the Institute Brazilian Competition Ethics Committee (ETCO).

During breakfast, lawyers, members of the public sector and the private sector discussed cases and mechanisms to face corruption within the business environment. At the event “Investigate or prevent? How authorities and companies are reacting to anti-corruption laws ”, ETCO's chief executive, Evandro Guimarães, said that corruption is behind crimes, such as piracy, smuggling and counterfeiting, which cause billionaire losses to the Brazilian business environment .

For him, although the Anti-Corruption Law was initially created to protect the public agent from corporate harassment, it caused the private sector to be concerned with internal integrity, minimizing the occurrence of illicit practices. The implementation of the law, believes the leader, will be more difficult in the municipalities. “It is in this sphere that there is a risk of misuse of the rule, especially the initiation of processes based on empty complaints. It takes common sense for everyone ”.

In addition to Guimarães, the leader of the Compliance area of ​​Machado Meyer, Leonardo Machado, the partner of the Labor area of ​​the office, Sólon Cunha, the coordinator of the intelligence center of the Secretariat of Public Security of São Paulo, Fábio Bechara, Norton Rose Andrew Raines, attorney and Canadian SNC Lavalin compliance officer, Diogo Moretti.

Collaboration and communication are essential in implementing compliance programs in companies

Compliance professionals working at ETCO member companies met last Tuesday (23) at the Institute's headquarters in São Paulo (SP) to discuss how to improve their organizations' integrity programs. The workshop, coordinated by ETCO, was led by Create.org's Chief Operating Officer, Craig Moss.

On his second visit to Brazil, the expert says he believes there is growing interest from the organizations installed here in improving compliance practices. This interest has been further motivated by the entry into force of the Anti-Corruption Law (12.846 / 13) in January, and also by the growing internationalization of companies, which in other markets have to follow similar milestones, such as the FCPA (United States) and the UK Bribery Act (United Kingdom).

For the executive, one of the keys to reducing the cost of implementing compliance programs is to collect subsidies from all departments of the company before drafting codes of conduct. HR must also be involved. This department has expertise in communicating with employees that should be used throughout the implementation, the expert understands. Craig also points out that the senior management's commitment to the program is essential for its acceptance in the organization. Only then should the creation of codes of conduct begin, which is generally the first initiative of companies.

Craig notes that the biggest challenge at this stage is making a code of conduct that translates into procedures that are easy for anyone to follow. “It is based on these procedures that the training of employees will be carried out, whose registration and performance must be frequent. Only then will an anti-corruption policy be alive. I know companies around the world that have good compliance policies, with recognition by their CEOs of their importance, but nothing more. So they are unable to have effective programs, ”he says.

Another important point is to carry out a good risk analysis, especially when the company depends on a very large supply chain. “If you have a thousand suppliers to control, you will never be able to pay attention to everyone at the same time. So you need to allocate your resources where the risk is greatest, always making a program consistent with the size of your company, ”says Moss.

The expert believes that compliance should be seen by organizations as a “journey”. Problems can occur even in companies with programs already structured. During the workshop, Moss cited cases from several organizations, and highlighted that of Morgan Stanley, who in 2012 was involved in a bribery scheme in China. The investment bank was able to prove in the American court that it had done everything in its power to curb internal fraud and, therefore, was cleared of the accusations and millionaire fines.

During the event, participants were also able to self-assess their respective compliance programs. “It takes time to progress systematically in each step, but each company has its own needs. You need to know what each one needs, ”says Craig. It ensures that even medium-sized companies can have efficient compliance. “It doesn't have to be complicated or extremely technological. It should only be functional. ”

Check out the Create.org materials below:

Anti-Corruption Compliance: reduce your risks

Guide to improving your Anti-Corruption program

Protection of Intellectual Property and Prevention of Corruption: a new approach

Free compliance event shows cases from large companies

The consultancy ICTS promotes on September 30, in the auditorium of the Museum of Modern Art (MAM) of São Paulo (SP), the event Compliance in Practice. The proposal is to discuss the implementation of anti-corruption practices in companies and their adaptation to the new provisions of the Anticorruption Law (12.846 / 13). During the event, cases from companies such as Ambev, Cielo, Grupo Embraer and Hypermarcas will be shown. The event is free and the places are limited. Participation must be confirmed by email events@icts.com.br

Order date: September 30th, 2014
Open Hours: 8 hours
Location: Auditorium of the Museum of Modern Art (MAM), in Ibirapuera Park
Address: Avenida Pedro Alvares Cabral, no number, São Paulo (SP)
Registrations: events@icts.com.br

Find out how to adapt your company to the anti-corruption law

In force since January 29 this year, the Anti-Corruption Law affects not only large corporations, but all small and medium-sized companies, especially those that have or intend to have commercial relations with the public sector. According to the new law, if an employee is caught in acts of corruption, the company is punished even without proof that it was aware of what was happening. The punishment provides for a fine that can reach up to 20% of the gross revenue of the previous year, inclusion of the company in a “black list” that prevents it from entering into contracts and receiving financial resources from public entities, suspension and closure of activities, arrest of those involved, among others So, now is the time to invest in prevention.

“The Anticorruption Law provides for different treatment between companies that are negligent in combating corruption and those that strive to prevent and prevent illicit acts. Companies that have internal audit policies, application of codes of ethics and conduct and incentives to denounce irregularities may have their sentences reduced, ”says Murillo Onesti, from Rodrigues Onesti & Lima Neto Advogados. Check below, ten tips to not have major problems with the anti-corruption law.

Creating an Effective Anti-Corruption Policy

The company's responsibility to ensure the correct understanding of the concept of corruption and the risks and sanctions that its practice involves is the primary role in adopting anti-corruption policies. Make employees aware of the need to conduct work without inadvertent involvement in illegal activities, after all, violation of laws, since the new law may be penalized individually with fines, imprisonments, etc. In addition, the implementation and application of such practice can be considered as a mitigation factor for the company's responsibility.

Formulation, application and dissemination of the company's strategic planning

Simple to create, this tool is very useful and should be shared among all employees, even those who do not have direct contact with public authorities, as it helps in the formation and maintenance of the company's culture.

Adoption and creation of manuals of conduct and codes of ethics

The company must create its own code, according to its reality. "You should not use models applied in other companies, as this does not work and can still cause problems", warns the lawyer, José de Souza Lima Neto.

Updates, training and courses

It is not enough to create the rules, it is necessary to disseminate and reinforce them periodically.

Creation of an open communication channel with employees

For Onesti, this is one of the main tools to be implemented in companies. "There must be this opening so that the facts can be investigated and act quickly, avoiding legal problems".

Adoption of accounting practices in accordance with legislation

The accuracy of the diaries, books, records and accounts is fundamental to all transactions / expenses (domestic and foreign) of the companies. Unusual payments, “unregistered” accounts, non-existent invoices or notes must be abolished, as well as deletion of books and records. The formula is simple. Would a third party, outside the company, understand the operation, how it was done, the parties involved, the beneficiaries and their reason? Transparency and document.

Periodic monitoring of legislation, including activity regulators

For lawyers, it is essential to keep up with the constant legislative changes, as often the new rules are not properly disclosed and the company may behave without knowledge.

Periodic audits

Internal audit procedures can initiate investigative and supervisory actions in order to ascertain whether the procedures adopted and the legislation are being applied correctly. Periodic audits, internal and external, are important risk control and management tools, applying transparency and efficiency in the conduct of the company's business. The audits, combined with solid Compliance programs, form diligent mechanisms to comply with the new legislation, being able to offer the necessary security in the event of an eventual fraud or administrative or judicial process.

Support and guidance from a legal department (internal or outsourced)

Fundamental arm, working in various segments of the company, the legal department contributes to the effectiveness of its transactions. Guiding and supporting compliance and auditing, it becomes an essential tool in the application, updating and development of anti-corruption policies.

Rigidity and efficiency in handling and storing documents and information

The agreement signed with a public agency or entity, which aims at the cooperation of the company that effectively collaborates with the investigations, is provided for in the legislation in question, called leniency agreement. The purpose of the agreement is to identify others involved, obtain documents, information, etc. quickly. The possibility of concluding the agreement, together with the need for transparency in relations and also individual and / or legal responsibility, demand a great need in the custody and maintenance of documents, information, activity records, etc. With the digital age this care becomes even more important.

Photos: Seeco e Earth Portal