More Responsibilities
Article on the new regulatory framework of corporate liabilities and sanctions brought by the Anti-Corruption Law, Zero Hora, 2014.
Translated from the original.
OUTRA OPINIÃO – FÁBIO MEDINA OSÓRIO
Published: 3/03/14 – 0:00
As of the entry into force of the Anti-Corruption Law, at the end of January, a new regulatory framework for corporate probity came into existence in Brazil. Law 12,846/13 creates new and severe sanctions. Among the administrative penalties, there is now a fine, and the company will also have to pay for publication of the conviction in the media.
As if the administrative sanctions were not enough, the company may face a public civil action seeking its dissolution by judicial means — without prejudice to compensation for damages and other sanctions imposed by courts of accounts or the Judiciary. One way or another, there is now a very broad sanctioning regulatory spectrum over legal entities that do business with the public authorities, all of which demands new forms of care and prudence in contracting processes. It is certain that compliance with the new law will require highly specialized transdisciplinary knowledge. Companies need to protect themselves with broad expertise in preparing reports focused on facts and trends relevant to risk analysis in transactions with the Public Authorities and contact with public servants, on matters related to compliance with prudential rules and internal security.
Through the specialized process of analysis, legal advisory offices should help identify the sources of legal, reputational and security risk, to strengthen the prudential levels of internal decision-making processes. It must not be forgotten that, before Law 12,846, there was already Law 8,429/92 (which deals with administrative improbity), whose application to legal entities is also unavoidable. It must be noted that legislation with severe penalties and very open concepts can serve as an instrument of power for administrative authorities and mean a passport to arbitrariness, opening the market for a new kind of corruption. By enshrining the instrument of the leniency agreement, allowing a kind of plea bargaining, the Anti-Corruption Law may become a political tool of confrontation and pressure by public authorities against the private sector, if there is no reasonableness, prudence and guarantees in its application.
In Brazil, it is common to always point to the need for new laws, when often it is in the lack of management of the oversight institutions that our real quality deficit lies. Under art. 7, sole paragraph, the matter will be regulated by the federal public authorities, including the states and municipalities. But to what extent will they regulate this Law 12,846/13? Will the regulation take place in harmony with federal legislation and the corresponding federal regulation? What will the environment of legal certainty in Brazil be like, given possible discrepancies in the regulation of the Law?
Fábio Medina Osório is president of the International Institute of State Law Studies