Brazilian lawyer Caio Farah Rodriguez, an associate of the law firm Escritério Barros Pimentel Advogados, who recently participated in Odebrecht`s global clemency negotiations, launched his interview with a controversial statement. “In clear Portuguese, the most important issues concerning leniency contracts in Brazil are false problems, it is more a question of power,” he said. Although not expressly enshrined in the Anti-Corruption Act, it is common – and even mandatory when it comes to agreements at the federal level – that the implementation or improvement of compliance programs is necessary to prevent, inhibit and repress the practice of offences. Dantas also stated that the TCU in Operation Car Wash only analyzes the legality and economic aspects of leniency agreements. “It does not act, conclude or authorize any agreement. The debate is about whether the TCU`s analysis should precede or follow the agreement. Both of these alternatives have advantages and disadvantages. Once the analysis is done in advance and the agreement is reached, it will guarantee greater legal certainty. On the other hand, the larger the number of parties involved, the more difficult it becomes to negotiate. For the court, I can say that there is no intention to create obstacles, but to guarantee security (of leniency agreements),” he said. While leniency agreements are a novelty in Brazil and are still a source of conflict between the various government agencies involved in the fight against corruption and other illegal crimes and activities, in the United States, consensual means of conflict resolution are the main means of resolving complaints and controversies, with broad freedom of action for the parties to the negotiations.
10) Where possible, negotiations with foreign authorities on cross-border corruption arrangements will take into account negotiations on cross-border corruption regimes, and this information should be specified in Brazil`s leniency agreement. If several jurisdictions consider the same behaviour, the MPF will avoid imposing double penalties for the same behaviour (guideline 13). To conclude a leniency communication, interested parties must recognize and terminate their participation in the cartel or any other anti-competitive practice by reporting it and participating in the entire investigation process and providing relevant information and documents. It is true that the federal lawyers involved in the Car Wash Operation have made extensive use of cooperation mechanisms and have been successful in concluding leniency agreements with companies. But these leniency agreements are based on somewhat shaky legal reasons and, to justify them, federal lawyers have developed an innovative interpretation that involves the combination of many different legal provisions. While the prosecutors` argument is plausible, there is no guarantee that the supreme courts will eventually accept this reasoning. It would be much better to reform the leniency provisions of the Clean Company Act to address the above deficiencies. While far-reaching reforms are a challenge, some steps brazil could take to encourage companies to come forward more often.
And what benefits can the company that cooperated get? The benefits of the Clean Company Act leniency program will not be extended to individuals participating in the self-reported program. Persons involved in illegal activities may enter into their own oral arguments (or “delao premiada”) with the Crown. In the second panel, North American lawyer William “Bill` Burck, managing partner of the law firm Quinn Emanuel Urquhart and Sullivan, explained in Washington D.C. a brief explanation of how clemency agreements work in his country. There is a lot of flexibility, there are not too many legal requirements that limit what can and cannot be done,” he said.