Internal Investigations And Cooperation With Enforcement Authorities

• Published date: 11 November 2020
• Subject Matter: Corporate/Commercial Law, Criminal Law, Corporate and Company Law, Securities, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Tauil & Chequer
• Author: Mr Luís Adams and Michel Sancovski

In summary

Among the concepts related to anti-corruption enforcement, there is the cooperation of companies with enforcement authorities with the expectation to mitigate sanctions for potential violations. While the Brazilian Anti-Corruption Law provides cooperation as a mitigating factor, the criteria and parameters for its recognition are not clearly developed and companies trying to cooperate with Brazilian authorities face some challenges. A thorough internal investigation may assist companies to cooperate, but this mechanism is not regulated and expressly recognised in Brazil. In the United States, both the concept and criteria for cooperation and the importance of internal investigations are clearer and the benefits are noticeable in the results that US authorities achieve in resolutions with companies. In this chapter, we present a parallel between the Brazilian and the American enforcement systems to consider the possibilities for Brazil to improve its anti-corruption enforcement.

Discussion points

• US anti-corruption enforcement
• Brazilian anti-corruption enforcement
• Criteria for cooperation
• Internal investigations

Referenced in this article

• Brazilian Anti-Corruption Law (Law No. 12,846/2013)
• US Foreign Corrupt Practices Act
• Foreign Corrupt Practices Act Corporate Enforcement Policy
• US Department of Justice
• US Securities and Exchange Commission
• US Justice Manual

Introduction

Corruption has a big social and economic impact¹ considering that, in recent years, the fight against corruption has turned into a priority worldwide and many countries have enacted or amended legislation related to the matter.² This increased legislative activity came accompanied by a stricter enforcement of these new rules and it is clear there has been an increase in the number of criminal and civil prosecution of companies that have practiced some type of misconduct.³

In this context of a greater enforcement, legal entities must act and adopt compliance measures to ensure adherence to the legislation they are subject to. In case of allegations of potential wrongdoings, corporate internal investigations are a relevant mechanism for legal entities to analyse internally whether the facts and misconduct actually occurred and how to remediate and prevent new violations.

Along with internal investigations, the concept of cooperation with enforcement authorities has developed and become very relevant. Allegations of misconduct are often taken to regulators and authorities, who...