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Brazil’s Senate Passes Long-Pending Landmark Anti-Corruption Legislation
8 July 2013
On July 4, 2013, the Brazilian Senate took long-awaited action in passing Legislative Bill No. 6826/2010. If approved by President Rousseff as expected, the new law will impose civil and administrative liability on corporate entities doing business in Brazil that engage in bribery of Brazilian or non-Brazilian public officials, as well as fraud in connection with public tenders.
The bill includes provisions making corporate entities, as legal persons, liable for anti-bribery and other offenses under a framework similar to the common law doctrine of respondeat superior, whereby a corporation can be liable for the acts of its directors, officers, employees, and other agents acting on the corporation's behalf. Various sanctions – including fines up to 20% of an entity’s gross revenues in the year prior to that in which administrative proceedings are initiated – may be applied if a covered illegal act was committed for the benefit of the entity, creating essentially a form of strict liability.
Penalties may include the loss of assets, debarment, injunctions, partial suspension of the entity’s activities, and even dissolution of the offending entity. The legislation also contains provisions for successor liability for fines and restitution. Although the legislation contains no affirmative defense for having “adequate procedures” in place to prevent corruption (as the UK Bribery Act does for its corporate offense), businesses may take some comfort in provisions of the law that direct that sanctions be determined based in part on the business’s pre-existing compliance program, remediation, and cooperation.
Michael J. Gillespie
Andrew M. Levine
Dietmar W. Prager
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