A corrupção transnacional e os desafios para a aplicação extraterritorial da Lei nº 12.846/2013

Abstract

Corruption practices that extend beyond a single country's borders have demonstrated that, in recent decades, corruption is no longer an internal issue but rather a transnational one. Recognizing corruption as a barrier to economic development, the U.S. launched a campaign against it, particularly in cases involving foreign state employees. The 1977 Foreign Corrupt Practices Act marked the beginning of efforts to address corruption on a global scale. Several conventions have been established since the 1990s, including the OECD Anti-Bribery Convention, which sets standards for criminalizing bribery of foreign state employees in international business; the OAS American Convention against Corruption; and the United Nations Anti-Corruption Convention. These regulatory frameworks have encouraged State Parties to enact internal legal reforms to incorporate treaty guidelines. The new regime is characterized by broader extraterritoriality in laws, increasing the likelihood of multiple States having jurisdiction over a trial. In Brazil, Law No. 12.846/2013 addresses the liability of legal entities for acts of corruption against domestic or foreign Public Administration, showcasing this peculiarity. Whereas this law aims to combat cross-national corruption effectively, it also raises questions about its scope due to the nature of liability and the interpretation of specific terms, such as "foreign public assets". Thus, it is essential to clarify the extent of article 28, which outlines liability for acts of corruption acts committed abroad by Brazilian legal entities. Additionally, it is crucial to study the conventions in force in Brazil and examine solutions for cases in which more than one country has the authority to investigate and prosecute unlawful acts. It is hypothesized that rules permitting the extraterritorial application of the Anti-Corruption Law should be interpreted to safeguard the effectiveness of combating transnational corruption while preserving the sovereignty and unique characteristics of the involved States. To achieve a balance between foreign and national entities, mutual assistance and institutional complementarity should be promoted. Thus, the criteria established by Law No. 12.846/2013 must be applied in conjunction with those outlined for in international treaties in force in Brazil,and subsidiary to the provisions of the Code of Civil Procedure. These criteria should also be applied to address conflicts arising from concurrent jurisdiction between States. To this end, prioritizing international comity and legal cooperation mechanisms is recommended for coordinated efforts among supervisory bodies and the fight against corruption in participating countries. This study is legal, descriptive, and comparative, employing an interdisciplinary approach that involves various branches of law, such as administrative, procedural, international, and criminal.