Anticorruption Enforcement In Brazil

Companies operating in Brazil, and their in-house and outside counsel, have been watching its anticorruption enforcement environment evolve ever since Brazil's new Clean Companies Act came into effect on Jan. 29, 2014. The Act brought with it a new wave of anticorruption implications for companies operating in one of the largest economies in the world, with potential for civil or administrative liability for a wide range of corrupt activities. That can include fines of up to 20% of a company's gross revenue for the fiscal year ending prior to the initiation of the investigation, forcing a company to relinquish any benefits received from the illegal conduct, limiting a company from participating in public bidding processes or even forcing dissolution.

Like similar anticorruption laws, such as the U.S. Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act, the Clean Companies Act has an international impact, allowing Brazilian enforcement agencies to enforce the law against acts occurring inside and outside Brazil, and against Brazilian companies and foreign companies with a registered office, affiliate or branch in Brazil. Although the Clean Companies Act brings strict liability and does not provide for a UK Bribery Act-style “adequate procedures” defense that could eliminate fines altogether, companies are able to mitigate potential fines based on cooperation and the existence of an effective compliance program.