On 10 November 2017, Brazil’s Chamber of Foreign Trade (Câmera de Comércio Exterior, known as “CAMEX”) passed a new resolution (Resolution 88/2017) regarding a new requirement to be imposed on Brazilian exporters who request subsidised financing, credit insurance and interest rates equalisation. This is another step towards greater levels of compliance demanded from Brazilian businesses, especially in relation to the prevention of corrupt acts.
The Resolution expressly recognises Brazil’s obligations as a party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and provides that as a condition for obtaining support from the Brazilian government, an exporter must now supply a formal declaration (which, if false, is subject to criminal penalties) stating:
“1. that it is aware of the crimes against the foreign public administration provided in articles 337-B and 337-C of the Brazilian Penal Code;
2. that it is aware that article 2nd of Federal Law 846 of 1 August 2013, provides for strict liability, at administrative and civil levels, of legal entities that carry out acts damaging to domestic and/or foreign public administrations;
3. that the exporter or the individual and/or legal entity that represents it and/or axed on its behalf or for its benefit did not carry out and that it undertakes not to carry out corruption practices in the [t]ransaction;
4. that it will communicate to (the National Bank for Economic and Social Development (BNDES)/the Brazilian Agency for the Management of Guarantee Funds and Guarantees/Banco do Brasil) any supervening fact that changes or compromises [the] Declaration, including whether it and/or any person or legal entity representing it in [the] [t]ransaction is being charged or, in the period of the last five years preceding requesting official support, has been convicted in court or sanctioned by equivalent administrative measures by national or foreign public authorities, as a result of violation of laws against corruption of foreign public officials;
5. that, if requested, it will identify and discriminate the individual and/or legal entities acting on its behalf […] in the [t]ransaction referred to in [the] Declaration, as well as the payment of any professional fees, commissions and charges;
6. that it is aware that, once official support has been granted, if corruption is proven in the [t]ransaction by administrative or court decision capable of enforcement, the measures applicable to the [e]xporter shall be taken, which may include, among others, suspension of official support, the obligation to reimburse all amounts that have been made available and/or the non-granting of official support for new transactions for the term and conditions established by current legislation, taking into account the terms of an agreement of leniency possibly signed by the [e]xporter with respect to the same acts and facts;
7. that it will implement or improve the system of internal controls, with clear and precise accounting policies that allow verification and proportionality and reasonableness of payments made to individuals and/or legal entities that represent and/or act for their interest or benefit, in order to identify any illegal transactions;
8. that it will inform its employees of the existence of national legislation – set out in paragraphs 1 and 2 above – that punishes individuals and/or legal entities in the criminal, civil and administrative levels for corruption; and
9. that it will implement or improve its integrity program, including internal mechanisms of integrity, auditing and reporting of illegalities and the effective application of code of ethics and conduct, with a view to detecting and combating corrupt practices.
Finally, it affirms that it is aware that the intentional falsity in relation to the terms of [the] [d]eclaration amounts, without prejudice of any other possible crimes, to the crime provided under article 299 of the Brazilian Penal Code”.
Brazil’s move towards trying to become a member of the OECD, together with the various corruption scandals that have been part of Brazil’s everyday life in the last several years, has brought greater emphasis on companies taking actual steps to prevent corrupt acts. It is hoped that these measures will not be limited to mere paperwork, but that corrupt practices will be drastically reduced as a consequence.
The Resolution is already in force.
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Last modified: November 25, 2017