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Compliance não é mais um tabu graças à Petrobras

08/06/2015

A sócia Danielle Valois, do grupo Direito Público, foi mencionada em matéria da Latin Lawyer, publicada nesta semana.
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Compliance no longer taboo thanks to Petrobras
The corruption scandal surrounding Brazilian state-run energy provider Petrobras has redefined Brazil’s oil and gas sector, said panellists speaking at Latin Lawyer’s 6th Annual Oil and Gas conference, held in Rio de Janeiro.

 

“We are in a new age where you have to know exactly what’s going on inside your company,” said Shin Jae Kim of TozziniFreire Advogados, who moderated a panel that discussed Brazil’s new anticorruption legislation and the enforcement of the Foreign Corrupt Practices Act (FCPA) and UK Bribery Act in Latin America. Jae Kim described the awkward moment a Brazilian company’s CEO embroiled in Operation Lava Jato pleaded ignorance when asked by a judge what he had done when he learned of corrupt practices going on at his company, but found out the hard way that ignorance is not an acceptable excuse. “The executive said he didn’t know about the wrongdoing and the judge immediately asked ‘well, what did you do when you learned about it?’ [Because] you should have known.”

Past experience proves that the oil and gas industry is firmly in the sights of FCPA enforcers, since five out of the 10 highest fines handed down by the US authority went to countries in the oil and gas sector. The Lava Jato investigation into Petrobras – which has so far seen more than 200 companies investigated for corruption offences and resulted in the imprisonment of many of their executives – is directly responsible for making the rest of the oil and gas industry, and indeed the wider business community, sit up and listen. “It’s becoming more and more easy to talk about compliance in Brazil, you just show a photo of 35 CEOs going to jail,” joked Jae Kim.

Companies are increasingly aware that merely having an anticorruption checklist is not enough if the practices listed on it are not adopted by the company and its staff.

The extent of corruption found to have occurred at Petrobras, which is the biggest company in Brazil and where more than 2,000 employees have been included in the investigation, is evidence of how far compliance has to go in Latin America before it becomes the norm. Much anti-corruption legislation is still new in the region, with Brazil only passing regulations for its Clean Companies Act earlier this year. “The way Latin American companies receive compliance is different to US,” admitted Recaredo Romero, managing director of the business intelligence and investigations practice at risk consultancy Kroll, who is based in Colombia, where anti-bribery legislation came into effect in 2011. “It’s a combination of culture and regulation: if you have a legal framework that means having a compliance culture helps you, people will adapt, but if you don’t then the concept of compliance remains unclear. In Latin America corruption is high and there is tolerance of it, less so now than there used to be, but still to a degree.” Kroll also levied criticism at the DoJ, arguing that it doesn’t treat every case the same way and alleging that banks are more likely to get favourable settlements.

However, indicative of the US authority’s global reach, eight of the 10 highest fines levied by investigators have been to international companies. Daniel Fridman, who heads White & Case LLP’s Latin American investigations team, reiterated that the FCPA isn’t afraid to extend its authority into foreign jurisdictions. While Latin American executives might be more inclined to turn a blind eye to risky practices in the continent, where a compliance culture is not so institutionalised as in the US, Fridman said that doesn’t mean US authorities will take the same approach. “The DoJ isn’t going to give anyone a break because of cultural differences,” he warned, adding that high-profile or globe-spanning cases would help ingrain compliance practices across the world. “Brazil is where the US companies were 10 or 15 years ago before the level of enforcement today and cases like Petrobras and FIFA will probably start to change the mind-set.” Also commenting on the ongoing FIFA case – which saw seven officials arrested on 27 May for receiving bribes – Danielle Gomes de Almeida Valois of Trench, Rossi e Watanabe said the investigation was evidence the DoJ was increasingly relying on local authorities to successfully make prosecutions. “The CGU is becoming more and more sophisticated [and] the DoJ has Brazilians working in its team. It’s counting much more on local authorities for its investigations.”

Discussion of the investigation into Petrobras dominated the conference. The corruption scandal was blamed for exacerbating local content rules, since it has reduced the oil explorer’s capacity to carry out the exploration works it is mandated. Speaking at the conference, Oswaldo Pedrosa, the president of Brazilian pre-salt exploration company Pré-Sal Petróleo, added his name to those urging Petrobras to rethink its operating rights in the pre-salt layer.

The conference also saw delegates debate the current trends in financing and M&A transactions in Latin America’s oil and gas industry, and discuss the future role unconventionals will play in Latin America’s energy markets.

Danielle Gomes de Almeida Valois

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