Incidência da FCPA (Foreign Corrupt Practices Act) sobre as empresas brasileiras: análise dos acordos celebrados pelo Departamento de Justiça Norte-Americano

Abstract

The United States FCPA, anchored in the justification of post-Watergate morality, has historically been seen as an international landmark in the attempt to tackle economic infractions, in particular, the bribery acts of foreign public officials. However, despite the moralist impetus, justified by the ethical crisis, the first twenty years of the legislation's effectiveness did not achieve the practical result of enforcement, in response to corporate crime. Between the end of the 20th century and the beginning of the 21st century, a period marked by the rhetoric of corporate integrity, there was an increase in the use of consensual out of court agreements conducted by the DOJ (Department of Justice), thus changing a centennial binary model of criminal justice in the United States. The rhetoric of integrity, a symbol of good corporate citizenship, especially in the post-Enron world, is the result of the compliance game between regulators and regulators, whose result of deterrence and reduction of corporate crime needs verification and scientific deepening. In the last decade, Brazilian companies have become targets of the US government, appearing in the ranking of the largest fines paid in the history of FCPA, according to data from Stanford University. In this sense, the present research project seeks to critically analyze the current model of consensual justice for the transnational acts of bribery of foreign public officials attributed to companies, proving or refuting the hypothesis that the unequal distribution of responsibility for law enforcement and prevention of economic violations between the public and private sectors, feeds the compliance industry, can promote the violation of the rule of law, sediment ineffective sanction instruments and avoid scientific verification of corporate integrity programs. The research will adopt a dialectical methodology, using the technique of theoretical research and data collection. A critical study will be structured in relation to the current enforcement model, in light of the responsibility of legal entities and the signing of non-judicial resolution instruments with Brazilian companies. Finally, the research project intends to critically analyze the North American sanctioning model, assessing whether it would be able to offer changes in behavior in the corporate environment, capable of reducing economic infractions and promoting ethical business sustainability.