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Focus on Latin America: Brazil at a
Crossroads (Part One)
Tuesday, May 15, 2012 At 12:28AM
By Andy Spalding
Wal-mart reporting has
shone a spotlight on
endemic corruption in Latin
America. But although
Mexico now dominates the
headlines, that country is
neither Latin America’s
biggest economy nor its
most urgent corruption
story. The country that finds
itself at truly critical
moment in its anti-
corruption effort is Brazil.
So many of us have read, so many times, that although Brazil has never
been a member of the OECD, it was among the original 1997 signatories
to the OECD Convention on Combating Bribery. That’s true, but
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it’s misleading. Brazil’s implementing legislation of 2002 conspicuously
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lacked a legal principle that has elsewhere proven a cornerstone of anti-
bribery enforcement: corporate liability. Brazil at present only holds
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natural persons liable; hardly surprising, then, that the statute lays
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All of that might now change. And it might not. On March 23rd, a
CONNECT special committee of Brazil’s lower legislative house is scheduled to vote
on bill no. 6826/2010, the Clean Company Act. It’s an omnibus white-
Twitter collar crime bill, but three provisions are especially critical to the
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international anti-bribery movement. First, it establishes the liability of
legal persons for overseas bribery. Brazilian law traditionally doesn’t
recognize criminal liability for corporations (just as common law
countries historically did not), so the bill is limited to civil and
administrative liability (which is fully consistent with the OECD
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Convention). Second, the bill would create, for the first time,
cooperation credit for voluntary disclosure. Though another
Enter your email address: foundational piece of effective anti-bribery enforcement, voluntary
disclosure is now almost unheard of in Brazil. Third, the Clean Company
Act would establish a new policy of considering at the penalty phase of
Subscribe enforcement whether a corporate defendant had a compliance program
Delivered by FeedBurner in place. Supporters hope this provision could stimulate the growth of
Brazil’s now-fledgling compliance industry.
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2. The FCPA Blog - The FCPA Blog - Focus on Latin America: Brazil at a Crossroads (Part One)
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The devil is in the procedural details. The special committee's
Extra Credit: China School Sells Brain- affirmative vote would advance the bill to Brazil’s Senate, unless a small
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Word on the street is that voting for a plenary session would be a stall
Focus on Latin America: Brazil at a
Crossroads (Part One)
tactic, and a highly effective one; it could delay further consideration of
the bill for many years, all but killing it.
How Big Is 'Grand' Corruption?
SL Industries' Gifts and Entertainment In this highly divisive political season, here’s an issue where both sides
Disclosure can find true common ground. U.S. businesses should support the
Brazilian bill because it helps put its South American competitors
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(against whom U.S. companies may sometimes struggle to compete in
'Foreign Offical' Challenge On Appeal countries like Mexico) on a so-called “level playing field.” Just as
obviously, corruption law advocates should likewise support this
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extension of meaningful anti-bribery law.
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But the May 23rd vote has implications well beyond Brazil, or Latin
America, or even the Western Hemisphere. We’ll spend a couple posts
To Mexico, from Nigeria, via Kazakhstan: discussing why. Stay tuned.
On the Trail of a Great Idea (Final
Installment) __________________
What Is An Effective Compliance
Andy Spalding is a contributing editor of the FCPA Blog. He teaches
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international business law at the Chicago-Kent College of Law.
Facilitation: A Jury Question Effective June 1, he’ll be an Assistant Professor at the University of
Richmond School of Law.
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