BNDES - Brazilian Development Bank

Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

Since the 1990s, issues such as corruption and bribery of foreign public officials in international business transactions have drawn more attention from the international community. The matter was initially handled by the Working Group on Bribery in International Business Transactions of the Organization for Economic Cooperation and Development (OCDE) and, in 1994, resulted in the first multilateral agreement related to combating bribery of foreign servers.

In 1995, the OECD adopted a recommendation on Tax Bribes of Foreign Public Officials, and, finally, in 1997, the Member States of the OECD, including Brazil, Argentina, Bulgaria, Chile and the Slovak Republic, signed the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which came into effect in 1999. Essentially, it represents the commitment of the signatory States to adapting their legislation to the measures necessary to prevent and combat corruption of foreign public officials in international trade.

Main measures of the Convention

Among these measures, the Convention establishes that signatory States can charge any foreign public official with a crime for promising, offering or granting undue advantage, of a financial or any other nature, whether it is directly or indirectly, by means of actions or omission when performing their public duties, carrying out or obstructing transactions while conducting international business.

The Convention has also adopted tax and accounting standards to prohibit any transactions that facilitate the concealment of corruption of foreign public officials, such as non-existing expenditure records and instituting obligations with no appropriate explanation concerning the purpose, as well as the use of falsified documents by companies aimed at corrupting public officials. In this vein, the Convention states that each State Member must establish civil, criminal or administrative penalties for omissions and falsification in accounting ledgers and records, accounts and financial statements.

The Convention also establishes that signatory States must commit to including the accountability of companies in their legal systems.

To ensure the effective and full implementation of the issues listed above, the Convention establishes that each signatory State must install a systematic and periodic follow-up mechanism.

Brazil and the Convention

Brazil was ratified the Convention on June 15, 2000 and promulgated it by Decree Nº. 3,678, of November 30, 2000. The systematic and periodical follow-up in Brazil began in 2003, when it revealed that Brazilian legislation had been adjusted to meet the terms of the document. The monitoring result was positive as Brazil, at that time, had already adjusted a large part of its legislation to the Convention.

In 2002, with the advent of Law Nº. 10,467, the Brazilian Penal Code was changed to include classification of actions performed specifically against foreign public administration in international commercial transactions.

As a development of the commitments made by Brazil to the Convention, the Foreign Board of Trade issued Resolution Nº. 62 of August 17, 2010, which established that Brazils official support for exports is subject to the signing of the Exporter’s Declaration of Commitment, attached to the Resolution.

Finally, on August 1, 2013, Law Nº. 12,846 was promulgated, entering into effect 180 days after publication, which rules on the administrative and civil accountability of companies for practicing acts against national and foreign public administration.