Tag: Anti-Corruption Law

Anti-Corruption Movements

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

Companies anticipate adaptation to the Anti-Corruption Law

In force since January, but awaiting regulation by the Union, by the states and municipalities, the Anticorruption Law is already causing positive changes in companies. Organizations that have compliance practices in line with international anti-corruption laws improve their programs to also adapt them to the Brazilian standard.

The changes seek to improve documentation and monitoring of activities, as well as to encourage integrity. This is because Law 12.846 / 13 made companies responsible for the possible unlawful conduct of their employees, collaborators and even third parties. In addition, companies need to prove that they have done everything possible to prevent internal corruption in order to be entitled to lesser penalties in the event of conviction.

At the 2014 Latin America Ethics Summit, an event that counted as a sponsorship of ETCO - Brazilian Institute of Ethics in Competition, in July, in São Paulo, a Google representative informed that the company created a policy of participation in bids for its distributors that compete in public competitions . The company also developed a cross-checking system between e-mails and case files for bidding processes to monitor any irregularities.

Siemens said it provides anti-corruption training for employees and service providers. It also created reporting channels and protection mechanisms for whistleblowers that ensure anonymity and effective action for each reported irregularity. The objective is to maintain the integrity program's credibility. Another initiative was to subject third parties to the same compliance rules that are valid for employees.

The Gerdau representative said that the company created a compliance program that encourages ethical conduct inside and outside the organization. The company frequently promotes conduct training in interactions between managers and subordinates. In addition, he started to recognize positive behaviors to make it clear that he takes integrity seriously.

3M, on the other hand, said it had instituted due diligence for suppliers and created ethical performance evaluations for senior executives who count as criteria for promotions. With the initiative, the company hopes to disseminate a culture of righteousness based on the examples of the leaders. "Our program exceeds the authorities' expectations," said Latin America compliance leader Gary Zaugg.

The adjustments made by these organizations were not motivated only by the enactment of Law No. 12.846 / 13. They also stem from their interest in improving internal practices and the relationship with partners. "Compliance generates benefits in terms of reputation and lowers the cost of attracting talent and good suppliers," said Dennis Jacob, compliance officer at Becton Dickinson.

During the event, Law 12.846 / 13 was unanimously recognized by companies as an advance in the fight against corruption. However, the organizations did not fail to express their doubts regarding the functioning of the standard. “Spread competence can be a complicating factor, especially in encouraging complaints,” said Wagner Giovanini, director of compliance at Siemens.

Read also

Fight against corruption moves forward with Law 12.846 / 13
Companies will have to live with law enforcement by various agencies
CGU advances rules for leniency agreements
São Paulo centralizes application of the standard in Controllership

 

Debate on corruption

The executive president of ETCO (Brazilian Institute of Ethics in Competition), Evandro Guimarães, participated in the No Accepted Corruption seminar, in the beginning of the month, in São Paulo. The event, an initiative of the Democratic Public Ministry Movement, discussed the impact of corruption on society.

In his speech, Guimarães highlighted the importance of companies in combating this evil. For the director, organizations can prevent internal deviations through integrity commissions, which would function like the Internal Accident Prevention Commissions (Cipas). "I hope one day that the integrity commissions will be as efficient in the work of spreading the importance of fighting corruption as are the Cipas in the security issue," he said.

Yes, Compliance is already a reality!

Nowadays it is practically impossible to miss the large number of articles on combating corruption, business ethics and Compliance, among other related topics, but where does all this uproar come from? The answer to this question is the political and economic moment experienced by Brazil. The country is a signatory to the OECD Convention (Organization for Economic Cooperation and Development), ratified by the Brazilian government on June 15, 2000 and promulgated in November of the same year, which requires the criminalization of the act of corruption of foreign public officials in international transactions. .

Internally, we also have Law No. 12.846 / 13, the so-called Anti-Corruption Law, which, in line with OECD guidelines, objectively holds accountable (without the need to prove the guilt of the company's leadership, just proof of economic benefit). legal entities and their agents involved in corruption, and establishes that one of the defenses to be adopted by companies sued for corruption will be to demonstrate the previous existence of an effective Compliance program, capable of minimizing the risks of fraud.

Although there is a long way to go before the extinction of corruption in Brazil, the existence of legislation and work, which has been developed by people and organizations in order to consolidate a law that aims to prevent and curb corruption brings a great advance for your combat.

With the approval of the Anti-Corruption Law and the initiatives of entities such as the Ethos Institute, Ibrademp, ETCO, LEC Magazine, among others, we should see in the coming years the strengthening of ethics in national companies. So, we have no doubt: Compliance is a reality that is here to stay!

Daniel Sibille and Giovanni Falcetta - LEC Compliance Preparatory Course Instructors - Legal, Ethics and Compliance.

Source: Merchant Monitor

ETCO and Valor Econômico hold seminar on new Anti-Corruption Law

The newspaper Valor Econômico and the Brazilian Institute of Ethics in Competition - ETCO held in São Paulo, on the 25th, the seminar The Anti-Corruption Law and its Impacts on Companies. The event will address the repercussion of the standard (Law 12.846 / 13) in organizations with direct or indirect relations with the public administration. The program discusses the application of the Anti-Corruption Law, the legal aspects for companies and the challenges of organizations in adapting to the standard.

Among the speakers will be the Chief Minister of the Comptroller General of the Union, Jorge Hage; the president of the Internal Affairs Department of the State of São Paulo, Gustavo Ungaro, and the head of the Internal Affairs Department of the Municipality of São Paulo, Mario Vinícius Spinelli. The panel of speakers also includes legal experts and compliance professionals working in large organizations. Registration is now closed, but it is still possible to put the name on the waiting list, by email.

 

Order date: 25 August

Location: Intercontinental Hotel - Sao Paulo (SP)

Address: Alameda Santos, 1123, Sao Paulo, SP

RSVP: seminarioleanticorrupcao@fdeventos.com.br

 

Fight against corruption moves forward with Law 12.846 / 13

For CGU, the rule eliminates gaps in other legislation and avoids the recession of resources with the adoption of the administrative process

The chief minister of the Federal Comptroller General (CGU), Jorge Hage, said last month, at the 2014 Latin America Ethics Summit, in São Paulo, that Law 12.846 / 13 will boost the fight against corruption. For Hage, the rule brings innovations, such as the clear typification of the offender, who now reaches legal entities, strict financial punishments and the administrative process to speed up convictions.

“Before, the agent of illicit conduct was not standardized,” said Hage, referring to the diffuse typification in milestones such as the General Procurement Law, Improbity Law, Liability Crimes Law and others. “In the Bidding Law, it only affected the legal entity. It did not reach the company's equity. The fines were insignificant and [the norm] provided, at most, for suspension of activities. ”

For the chief minister of CGU, the Anti-Corruption Law corrected this deficiency by clearly establishing that companies and non-profit organizations can be punished if they violate public administration. The punishment, of up to 20% of the billing or, in the limit, of R $ 60 million when it is not possible to measure it, is applied even if the offense was committed by an employee regardless of the management's knowledge or consent.

This was one of the points criticized in the rule, which, in the opinion of some jurists, would render the text unconstitutional. In a clear response to these criticisms, Hage said that “strict liability” is not new in Brazil (when the organization becomes responsible for the illicit acts practiced by its employees, collaborators and even service providers).

In the same way, Hage understands the instrument of the administrative process to be "not new". He reinforced the position that the mechanism was chosen to speed up the convictions. "We understand that we should force the administrative route to the limit of the Constitution, since the procedural law provides for many resources and needs to be changed," he said.

The minister trusts that the Anti-Corruption Law will have a deterrent effect on companies that consider illegal practices to do business with the State. He also hopes that the standard will encourage the adoption of compliance programs to prevent, detect and react to acts of corruption within companies.