Cláusulas anticorrupção em contratos privados e administrativos

Abstract

This paper studies the anti-corruption contract clause in private contracts and administrative contracts. The study begins by taking into account the historical context of the evolution of anti-corruption discourse and the foreign norms and international conventions that are considered responsible for its spreading in the world and internalization in Brazil. The Brazilian Anti-Corruption Law, as well as related municipal and state laws, are studied in order to deepen the impact that it has had on the market, notably inducing behavior in the private initiative that started to adopt integrity programs as part of its internal policies, despite the absence of obligation, as a rule. Compliance is addressed as regulated self-regulation of corporations. It then enters into the revision of anti-corruption compliance and its main features, although refuting the analysis of program effectiveness only by the check-in-the-box method. Then proceed to the deepening of the anti-corruption clause with its concept, precedents in comparative law, examples, legal nature and characteristics. Finally, study the use of the anti-corruption contract clause in private contracts and administrative contracts, to conclude that in private contracts it is in an advanced state of internalization and study, being an instrument of compliance and a collective action of commitment to act in the market in accordance with anti-corruption law and business ethics. In administrative contracts, on the other hand, it is concluded that the clause is yet another instrument of unilateral termination by the public administration, and that the legal provisions of its obligation in administrative contracts, although laudable, failed to properly draft the clause. Thus, it is concluded that especially in administrative contracts the study of the anti-corruption clause needs to advance in Brazil in order to allow its effective use.