International Trade Reflexes of the Brazilian Anti-Corruption Statute
On September 19, 2014, the Resolution No. 81/2014 of the Council of Ministers of the Foreign Trade Chamber - AMEX ("Resolution") was published in the official gazette, containing anti-corruption regulations directed at the foreign trade industry. The Resolution provides a new wording to the Exporter?s Declaration of Commitment ("Declaration"), which was adopted by the Brazilian government and its instrumentalities as a necessary condition for obtaining foreign trade incentives from the Brazilian government, including public financing or refinancing, equalization of interest rates, credit insurance or any combination of these modalities.
According to the new wording of the Declaration, the exporter shall also declare to be aware that: (i) the Federal Law No. 12.846/2013 ("Anti-Corruption Statute") sets forth the strict civil and administrative liability of legal entities for illegal acts against the Brazilian and foreign governments; and (ii) if the exporter or any person representing him, in his interest or benefit, are found liable for committing any of the crimes against foreign governments set forth in article 337-B et seq of the Brazilian Penal Code, or held liable in the administrative or civil spheres pursuant to the Anti-Corruption Statute, the exporter shall be denied the export financing lines from the Brazilian National Economic and Social Development Bank ("BNDES"), the Export Financing Program ("PROEX") and the Export Credit Insurance covered by the Export Guarantee Fund ("FGE"), for up to five years.
In short, upon signing the Declaration, the exporter undertakes to adopt the following internal integrity measures, which may be subject to inspection by government authorities:
- Adopting a code of ethics and a reporting channel;
- Providing integrity training to employees, including education to provide awareness of crimes of bribery and influence peddling in international commercial transactions;
- Internal controls, accounting policies and procedures that enable the entity to identify possible illegal transactions and that include the verification and evidencing of the proportionality and reasonableness of payments made to intermediaries and other third parties with whom the exporter has links; and
- Standards of conduct, internal controls and procedures with the purpose of combating crimes of bribery and influence peddling in international commercial transactions.
The full content of the new Declaration, with its amendments highlighted in colors, can be found at this link (unofficial free translation to English).