The Primerus Paradigm - Fall 2016 Page 44

T H E P R I M E R U S P A R A D I G M

The Brazilian Anticorruption Act and
the Importance of a Compliance Program

Brazil has recently been featured in the
headlines of the world press for numerous
cases of corruption.
Brazilian Federal Law 12,846 was
enacted August 1, 2013 (Brazilian
Anticorruption Act). It was a result of
the country's international commitments
assumed in the late 1990s and early 2000s,
and not as a response from the Brazilian
authorities to the great anticorruption
protests of 2013.
In 1997, Brazil signed the Convention
of the Organization for Economic
Cooperation and Development (OECD),
better known as the Convention on
Combating Bribery of Foreign Public
Officials in International Business
Transactions.

In 2003, Brazil signed the United
Nations Convention Against Corruption,
in which it committed to criminalize
corruption (domestic and transnational) and
to enact a law establishing administrative,
civil and/or criminal liability of legal
entities regarding corruption acts.
The Brazilian Anticorruption Act
provides for the strict administrative and
civil liability of legal entities for acts
committed against Brazilian public and
foreign administration.
According to the Act, the legal
entities shall be strictly liable, in both
administrative and civil spheres, for the
practice of the harmful acts set forth
therein in their exclusive or non-exclusive
interest or benefit.
There is no need to prove the fault of
the legal entity. Just the link between the
conduct of the legal entity (or any third
party acting on its behalf or benefit) and
any of the harmful acts provided in the
Brazilian Anticorruption Act is enough.
Article 5 of the Brazilian Anticorruption
Act provides a list of conduct considered
acts of corruption. Such acts are:

to promise, offer or give, directly or
indirectly, any undue advantage to a
public official or a third party related
thereto;

proven financing, funding, sponsoring
or otherwise subsidized practice of torts
described therein;

proven use of a third party, either an
individual or legal entity, to conceal
or disguise their real interests or the
identity of the beneficiaries of the
actions taken;

regarding public bids and contracts:

a) to frustrate or defraud, by means of

collusion or any other expedient, the
competitive nature of a public bid;

b) to prevent, hinder or defraud the

performance of any act within the
scope of a public bid;

c) to remove or seek the removal of

a bidder, by means of fraud or by
offering advantage of any kind;

d) to defraud a public bid or the

contract resulting thereof;

e) to create, fraudulently or irregularly,

a legal entity for the purpose
of participating in a public bid
or entering into administrative
contracts;

f) to gain undue advantage or

benefit, in a fraudulent manner,
from amendments or extensions of
contracts entered into with the public
administration, without authorization
provided either by the law or by
the invitation to bid or respective
contractual instruments; or

g) to manipulate or defraud the

economic and financial balance of
the contracts entered into with the
public administration;

Latin America & Caribbean Brazil

Otávio Borsato is a senior associate at Barcellos
Tucunduva Advogados, where he specializes in
banking, finance and capital market, as well as
investment funds.

Barcellos Tucunduva Advogados
Alameda Itu, 852-9º e 10º andares
Sao Paulo, Brazil 01421-001

+55.11.3069.9080 Phone
+55.11.3069.9066 Fax

btlaw.com.br
oborsato@btlaw.com.br

Otávio Borsato