Brazil is a country with tremendous business promise, but considerable corruption risk. On the upside, Brazil is the world’s sixth largest economy; will host the upcoming 2014 World Cup and the 2016 Summer Olympics
; has a largely internally focused economy (and thus does not rely on exports to the same extent as China, for example); was relatively unscathed by the 2008-2009 financial crisis; is making a concerted push to upgrade its infrastructure (ports, roads, utilities, sporting venues, etc.); has a wealth of natural resources (including oil) and a growing ability to commercialize them; and more. The Brazilian government recently estimated that its economy will grow 4.5 percent in 2013. On the downside, however, corruption has been a drag on Brazil’s economy for as long as anyone can remember, and adversely affects other aspects of life in Brazil (notably, the uneven and sporadic administration of justice). Brazil’s regulatory regime is infamously – many would say, unnecessarily – complicated, in particular with respect to tax. (Avon’s internal FCPA investigation
reportedly has uncovered, among other things, millions of dollars of payments made by Avon to tax consultants in Brazil.) Accordingly, doing business effectively in Brazil requires navigating a highly complex regulatory regime. In turn, navigating that regime often requires on the ground expertise, color and connections. In short, it requires hiring local, third-party consultants, or despachantes
, as they are called in Brazil. A big business opportunity, a complex regulatory regime and third-party agents that are ubiquitous and virtually inevitable – anti-corruption professionals will recognize the current landscape in Brazil as a classic recipe for FCPA violations. The key business question is how to avoid such violations while taking advantage of the considerable business opportunities that Brazil offers. This article seeks to answer that question. In particular, this article discusses: relevant precedent regarding third-party consultants in Brazil, including completed enforcement actions and ongoing investigations; industries in Brazil in which corruption risk is salient; specific corruption risks in Brazil; the rationale for the use of third-party consultants in Brazil; three “red flags” to be aware of when evaluating third-party consultants in Brazil; seven steps to take when retaining third-party consultants in Brazil (steps that were originally distilled by Navigant Consulting for Tyco International Ltd.); and suggestions for monitoring third-party consultants once they are hired.