The future of Law nº 12,846/2013: three issues to be improved over the next 10 years

Abstract

During the first decade that Law nº 12.846/2013 has been in force, important results have been achieved at both the federal and sub-national levels. However, despite the improvements to the Brazilian anti-corruption system, future legislative reforms could still advance the design of the legal institutes brought in by the law. Without examining the entire system of incentives produced by the legislation, this paper aims to analyze three inconsistencies in the law, shedding light on: (i) the incongruity between the type of corruption identified in in­ternational research as the most typical in Brazil and some of the legislative options adopted by the law; (ii) the necessary association of effective instruments of consensus to the corporate liability system, considering the side effects that can arise from applying tough sanctions; (iii) the imperative improvement of settlements regimes, aiming to create adequate incentives for corporate cooperation, especially in less serious cases. This paper con­cludes that some of the legislator’s choices do not seem compatible with Brazil’s main anti-corruption challenge, which is grand corruption. In addition, it points out that consensual instruments still need to be refined to prevent punishing of offenders from leading to negative externalities that are detrimental to society. Finally, it advocates two measures to potentially increase incentives for corporate collaboration through leniency agreements, which are the involvement of the Public Prosecutor’s Office, as well as the increase of benefits in less severe cases, in the light of what has been happening in the United States with the expansion of the new Corporate Enforcement Policy to all cases in the criminal division. To achieve its objectives, this paper uses as its methodology the study of national and foreign literature, notably legal and political science literature, as well as conventional tools and reasoning from the economic analysis of law.