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The New Anti-Bribery Law and the Foreign Trade.

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By Gustavo Henrique Maia de Almeida

 

Law no 12.846 came into force last January 29 and it regulates the administrative and civil liability of legal entities for acts practiced against the national and foreign public administration.

This paper aims to present the main aspects of the new law, and to, at end, create an interaction between some aspects of the law and circumstances respecting foreign trade.

The law is applicable to business and civil companies, incorporated or not, independently of the organization form or corporate model adopted, and also, foundations, associations, or foreign companies, with head offices, branch or agency into Brazilian territory, legally incorporated or not, even if temporary.

The responsibility of legal entities is strict, independently of guilty, for any offensive act, in the administrative or civil aspect, for its own interest or benefit, exclusive or not. In case of amendment to the articles of association, transformation, incorporation, merger, or spin-off, the liability will be maintained, with some exceptions in case of mergers and incorporation.

There is a solidarity with respect to the payment of monetarypenalty and the damages compensation, between the lead company, controlled, associated company, and consortium, the last depending on the consortium formation agreement.

The responsibility of the legal entities is independently from the responsibility of the managers or company’s officers, or any person. The managers and officers will also be responsible as principal, co-principal or participant, independently of the legal entities liability. The main difference between the legal entities and their manager’s responsibility is that a proof of the guilty of the managers is necessary.

In relation of the variety of offensive acts, the law includes the following possibilities:

I – to promise, offer or provide, directly or indirectly, undue advantage to public agent, or third party related to him;

II – to finance, defray, support or by any other manner to subsidize the practice of the offensive acts in terms of this law;

III – to use individual or legal entity in order to cover or dissimulate the real interests or the identity of the beneficiaries of the practiced acts; 

IV – regarding bidding and contracts:

a) to frustrate or fraud, by adjustment, combination or any other expedient, the competitive character of  bidding proceeding;

b) to interfere, disturb or fraud any act of bidding proceeding;

c) to depart bidder, by any fraud or offering any sort of advantage;

d) to fraud bidding or contract arise from it;

e) to create legal entity to participate of bidding or to realize administrative contracts, by fraudulent or irregular act;

f) to obtain benefit or undue advantage, from modifications or extensions of administrative contracts, through fraud, without legal authorization, during the bidding call notice or on respective contractual instrument; or

g) to manipulate or fraud the economic-financial balance of contracts realized with Public Administration;

V – to create difficulties to investigation or supervision by public entities or agents, or to interfere on its procedures, including regulatory agencies and inspection financial system agency.

As regards the penalties, a monetary penalty can be applied to the legal entities, in the equivalent amount from 0.1% up to 20% of the gross sales of previous fiscal year. When this parameter cannot be used for any reason, the penalty must be determined in a scale of R$ 6.000,00 (six thousand reais) up to R$ 60.000.000, 00 (sixty million reais).

In case of punitive judgment, the decision must be published in the media, posted by public notice at the establishment of the legal entity and its website.

These sanctions may be cumulative or not, however, do not exclude the integral compensation of damages and the judicial liability. Thus, the Federal, State, Federal District, and Municipality Government and Public Prosecutor Office, may file legal actions aiming the follow penalties:

I –Confiscation of assets, rights or values that represent advantages or direct or indirect benefits obtained through the infraction;

II – suspension or partial interruption of activities;

III – compulsory liquidation of legal entity;

IV – prohibition to receive incentives, subsidies, donations or loans from public agencies and public financial institutions or controlled by the government, for a minimum period of one (1) and maximum of five (5) years.

The law set forth the possibility of a leniency agreement, allowing that the legal entity that has committed an offensive act, can collaborate with the investigations, providing information and documents related with the act, which allow the faster investigation of the act under investigation. The signature of the agreement does not exclude the obligation to repair the damage, and certain conditions are required for the signature of such agreement.

The advantage of the agreement is the non-application of the following penalties: publication of the decision and prohibition to receive incentives, subsidies, donations or loans from public agencies and public financial institutions or controlled by the government and reduction to 2/3 (two thirds) the amount of the fine applicable.

The law has created the “Cadastro Nacional de Empresas Punidas” (National Register of Punished Companies), it is a consultative body and aiming to gather information (Company Name, number of National Register of Legal entity (CNPJ), type of penalty applied) and to ensure the publicity of such information.

After the commentaries regarding the main points of the law, below some references with foreign trade.

The offensive act defined as “to use individual or legal entity in order to cover or dissimulate the real interests or the identity of the beneficiaries of the practiced acts.” has reference with proceedings related to “importation on behalf of third parties” and “importation by order”, as well, exchange operation and proceedings pertinent to Siscoserv (“Integrated System of Foreign Trade Services, Intangibles and Other Operations that Produce Changes In Equity”)

Another offensive act, “to create difficulties to investigation or supervision by public entities or agents, or to interfere on its procedures, including regulatory agencies and inspection financial system agency”, can be typified if an import company deny the presentation of  bank statement during the Special Customs Proceeding before Federal Revenue, even though legality of this attitude.

The situation of abandoned good and as a consequence the confiscation of it, in reason of the loss to the Public Treasury, also can be related to “to use individual or legal entity in order to cover or dissimulate the real interests or the identity of the beneficiaries of the practiced acts.” At same time, if the import company has repeatedly proceedings of abandoned good and the confiscation, the authority can understands as  “to finance, defray, support or by any other manner to subsidize the practice of the offensive acts in terms of this law”.

Certainly, there are varied examples, especially, regarding a specific legislation, the Federal Revenue Normative Instruction no 1.169:[1]

Art. 2º: The irregular activities mentioned art. 1º comprehends, among others hypothesis, the suspected cases related to:  

I- the authenticity of import or export documentation, including that related to the origin of merchandise, the sales price paid or to be paid, or whether the merchandise was received or is to be received;

II- forgery or change of essential characteristic of the merchandise;

III- prohibited importation or import that threatens morality, social customs, public health, or public order;

IV- concealment of the beneficial importer, actual seller, purchaser, or party in charge of the transaction by means of fraud or disguise, including fraudulent use of interposed party;

V- an unregistered importer, exporter, or any party involved in the business transaction; or

VI- false statement of content.

The law has entered force and companies must be alerts to its consequences. The internal proceedings of control, more than ever, are important, as well as, the recruitment of staff responsible to work on its name.

 

Gustavo Henrique Maia de Almeida, international trade department of VM&L Sociedade de Advogados. gustavo.maiadealmeida@vml.com.br

 


1 “Establishes special procedures of control, on import or export of goods and commodities, before suspect of irregularity punished by confiscation.       

Written by VML Advogados

junho 13th, 2014 at 10:53 am

BRAZILIAN LAWS AND CLIMATE CHANGES

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By – Alexandre Leite Ribeiro do Valle and Carolina Pett G. Gonçalves – Article – ABA International Law News – Summer 2010 – Vol.39 n. 3

Our planet is suffering from the adverse effects of climate change.  These changes have affected all countries in the world in different forms and will continue unabated until the world’s population recognizes the seriousness of this environmental issue.  The readily apparent damage is, according to experts and environmental researchers, expected to worsen and cause further problems for the citizens, governments and non-governments organizations of the world.  Slowly, as recognition builds, a number of studies, strategies and political changes are being implemented to minimize the damage but every country must assume responsibility to alleviate this global crisis.

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Written by Alexandre L. Ribeiro do Valle

agosto 28th, 2010 at 1:07 pm