Tag: Fight against corruption

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: 8h
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

Combating international deviations

On September 18 and 19, the Fundação Getúlio Vargas School of Law in São Paulo (FGV Direito SP) held the event Interinstitutional Coordination to Combat Corruption. The meeting brought together national and foreign experts on the topic, and sought to reflect on the challenges of inspection bodies to combat cases of transnational corruption. The program also reserved debates on the main anti-corruption laws in the world, the investigation procedures and aspects of the necessary cooperation between agencies of different countries in cases of this kind.

Seminar held by ETCO and Valor discusses Anti-Corruption Law

After the “trawl” of the Clean Record Law, which put hundreds of suspicious applications in limbo, the country now has the Clean Company Law (or Anti-Corruption Law). In effect since January, Law 12.846 holds companies and their employees accountable for committing acts against the public administration. With the legislation, the State wants to punish the corrupting agent and also the company that allows itself to be corrupted. With this, it expects Brazil to leave the uncomfortable position of 72 in the ranking of corruption in a global list of 180 countries. The new law provides for offenders punishments that can reach R $ 60 million or 20% of revenues, without exempting them from repairing losses to public coffers.

First of all, the purpose of the law is inhibiting and educational. More than that, the law aims to reward “clean” companies with better competitive conditions. "The law has the power to equalize the conditions of competitiveness among companies, making the market reward those who invest in ethics, integrity and efficiency," said Sérgio Nogueira Seabra, secretary of Transparency and Corruption Prevention. “When creating equal competition based on efficiency, the company, the citizen and the government benefit. It is a game where everyone wins ”, commented Seabra, one of the speakers at the seminar held by ETCO and Valor Econômico newspaper“ The new Anti-Corruption Law and its impacts on companies ”, on August 25, in São Paulo.

"This is a law designed to really change the level of the business environment in Brazil," said Jorge Hage, Minister of State Chief of the Comptroller General of the Union, who also participated in the event. The minister, however, sees two obstacles. One of them is the “necessary reform to speed up the judicial process, both civil and criminal, so that the processes do not take 10 to 20 years”. The other is “the abolition of corporate financing for political campaigns, which, by the way, are the two major goals that lie ahead”.

For the minister, the Clean Company Law, as he prefers to call the Anti-Corruption Law, is another milestone in a fight that started a decade ago, with “the portals of transparency, with the law of access to information, with the institution of the corregidorias system ”. These mechanisms, Hage enumerated, "removed 4.016 corrupt agents from the ranks of the federal administration, prevented 3.866 companies from participating in tenders and barred 2.690 NGOs from receiving agreements".

For the executive president of the Brazilian Institute of Ethics in Competition (Etco), Evandro Guimarães, companies have an important role in fighting corruption. “Each company must have its own internal committee for prevention of integrity.” According to him, "in Brazil, tax evasion, smuggling, piracy, adulteration are equivalent to a Gross Domestic Product (GDP) of the countries of Latin America". "The greatest asset of a nation is the internal market that has to be preserved and we cannot spare any effort to make companies participate in this anti-corruption movement," he said.

Mario Vinícius Claussen Spinelli, general controller of the municipality of São Paulo, defends the thesis that “it is necessary to change the promiscuity relationship between the public and private sectors in Brazil”. He suggested that the country adopt international models that hold corruption networks accountable. According to Spinelli, Brazil is one of the few developing countries that did not have an anti-corruption law. In the city of São Paulo, the results are illustrative. For example, just last month, the collection of ISS Habite-se increased 74%. The actions led to a corruption scheme that involved more than 400 companies and had been operating for a decade. Of the total - says Spinelli -, "only five of them sought the controllership to collaborate with the investigation and only one of them of their own free will".

Source: Online Value

Gustavo Hungaro Presentation

Presentation Jorge Hage

Presentation Mario Spinelli

Presentation by Sérgio Seabra

Presentation Gabriela Freitas

Read also Lawyers identify impacts for companies 

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.

Source: Seeco e Earth Portal

Book updates panorama of corruption in Brazil

The promoter of justice Roberto Livianu, also president of the Movement for the Democratic Public Ministry, an ETCO partner entity, launched the book “Corrupção” at the Livraria Cultura of Shopping Iguatemi, in São Paulo (SP), last Monday afternoon. - Including the New Anti-Corruption Law ”.

The work is an updated and expanded edition of “Corruption and Criminal Law - A diagnosis of Corruption in Brazil”, originally written by the author in 2006. In the new text, Livianu updates her analysis of the causes, consequences and the fight against corruption in Brazil, with a special focus on the contribution of Law 12.846 / 13, the Anti-Corruption Law, in combating the problem.

The preface is signed by former Justice Minister Dalmo Dallari. In it, the jurist emphasizes that “the fight against corruption by legal means is the beginning of facing the issue”. Thus, when analyzing the resources of the legal framework for white-collar crimes in Brazil, “Livianu's work contributes to improving the fight against corruption”.

Doctor of Law from the University of São Paulo, Roberto Livianu works at the Public Prosecutor's Office for Diffuse and Collective Rights. Livianu is also a teacher at public prosecutor training schools in São Paulo and Mato Grosso.

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