Odebrecht’s trilateral agreement could be a benchmark for global foreign bribery settlements
6 de janeiro de 2017

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The record US$3.5 billion settlement between Odebrecht, its affiliate Braskem, and enforcement authorities across three continents could serve as a “model case” for future cross-border resolutions, Swiss counsel to the Brazilian construction companies told Latin Lawyer‘s sister publication GIR.

The agreement between the companies and enforcement authorities in Switzerland, Brazil and the US is thought to be the first coordinated settlement with a trilateral fine. Under the agreement, announced on 21 December, Odebrecht will pay at least US$3.5 billion to resolve allegations that its companies bribed foreign officials around the world. Switzerland is expected to receive more than 200 million Swiss francs (US$195 million).

Announcing the agreement, the US Department of Justice (DOJ) said it would carry out an analysis of the company’s ability to pay in March, but that the minimum amount Odebrecht would pay is US$2.6 billion, of which Brazil will receive 80 per cent and the US and Switzerland will split equally the remaining 20 per cent.

In Switzerland, the Office of the Attorney General (OAG) convicted Odebrecht and its subsidiary, Construtora Norberto Odebrecht (CNO), of violating the country’s corporate criminal laws, which were introduced in 2003. Under the summary penalty order, the OAG found the companies guilty of money laundering and failure to take all reasonable organisational measures to prevent the offences of bribing foreign public officials.

The Swiss OAG found that Odebrecht’s affiliate Braskem had also paid bribes using the same channels as Odebrecht and CNO, but declined to impose a criminal penalty on the petrochemical company as it is has been charged for the same crimes in the US. As part of the settlement, Braskem will pay a combined criminal penalty of US$632 million, of which US$94.8 million – or 15 per cent – is allocated to Switzerland. Brazil will receive 70 per cent of the company’s criminal fine, and the US will receive the remaining 15 per cent.

Peter Burckhardt, a partner at Schellenberg Wittmer in Zurich who represented Odebrecht, CNO and Braskem in the Swiss investigations, say he expects to see an increase in the number of criminal cases brought against companies in Switzerland.

Criminal verdicts against corporates are still relatively rare in Switzerland, but in recent times the OAG has repeatedly emphasised its determination to prosecute companies,” he notes. “In fact, I’m aware of investigations against several companies at the moment and we can expect to see more such cases in the future.”

Burckhardt says the fact enforcement agencies in three countries found a coordinated resolution for a complex matter relatively quickly could encourage cooperation from companies in the future.

He adds: “Certainly, the verdict may be seen as painful, but legal certainty and speed often count as much, if not more, when deciding whether to settle.”

Counsel for Odebrecht

In the Brazilian investigation

Quinn Emanuel Urquhart & Sullivan

Partners Bill Burck and Richard Smith in Washington, DC Dias & Carvalho Filho Advogados Partner Theo Dias in Sa?o Paulo Barros Pimentel Advogados

Partner Caio Rodriguez in Sa?o Paulo

In the US investigation

Quinn Emanuel Urquhart & Sullivan

Partners Bill Burck, Richard Smith and Eric Lyttle in Washington, DC

In the Swiss investigation

Schellenberg Wittmer

Partner Peter Burckhardt in Zurich

 

Counsel for Braskem

In-house counsel – Gustavo Valverde, Marcella Menezes, Valter Pedrosa, Cristiana Lapa, Lilian Porto Bruno, Ana Paula Bueno, Filipe Tavares and Amanda Alves da Silva

In the US investigation

Baker & McKenzie LLP Partners Joan Meyer, John Rowley III and Karyn Koiffman in Washington, DC Paul Hastings LLP Partners Robert Luskin and Jay Darden in Washington, DC In the Swiss investigation Schellenberg Wittmer

Partner Peter Burckhardt in Zurich

In the Brazilian investigation

Sampaio Ferraz Advogados Lui?s Wielewicki, Bruno Furiati, Rodrigo Maia, Beatriz Trovo and Arthur Teixeira

 

Counsel for CNO

In the Swiss investigation

Schellenberg Wittmer

Partner Peter Burckhardt in Zurich

 

Counsel to the Justice Department

FCPA unit chief Dan Kahn and trial attorneys Christopher Cestaro, Sarah Edwards, David Fuhr, Kevin Gingras, Lorinda Laryea and David Last of the criminal division’s fraud section

Assistant US attorneys Julia Nestor and Alixandra Smith of the Eastern District of New York

Counsel to the SEC

FCPA unit chief Kara Brockmeyer and Ernesto Palacios and Thierry Olivier Desmet, with assistance from David Johnson and Fernando Torres

This article was updated on 10 January to include additional counsel to Braskem in Brazil and the US.

FONTE: http://latinlawyer.com/news/article/50769/odebrechts-trilateral-agreement-benchmark-global-foreign-bribery-settlements/

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