friday, 27 march of 2015

BNDES requires the implementation of compliance programs as a condition to finance exporters

Luis Gustavo Miranda de Oliveira and Paulo Teixeira Fernandes

BNDES has recently adopted measures to intensify the fighting against corruption of foreign public officials by (i) demanding that exporters sign the Declaration of Commitment, in accordance with Resolution CAMEX nº 81/2014, and (ii) including in the BNDES financing contracts anticorruption clauses.

(i) Exporters Declaration of Commitment – Compliance Program

The items IX, X and XI of the Exporters Declaration of Commitment deals specifically with the demands concerning the adoption of the compliance program, as the BNDES requires that the exporter:

"(ix) implement an internal control system with clear and accurate accounting policies aiming to identify potential Illegal transactions;

(x) create an Code of Ethics establishing complaint mechanisms crimes against the foreign public administration; and

(xi) implement practices and systems of internal control, including standards for business conduct in order to prevent crimes of corruption and influence peddling in international commercial transactions."

Furthermore, through the Declaration of Commitment, the exporters must (i) declare that they are aware that Brazil signed the OECD Convention and complies with all norms and regulations to curb crimes against foreign public administration, and (ii) commit themselves to bring to the authorities attention any act related with the aforementioned crimes.

(ii) Specific anti-corruption clauses in the BNDES' contracts

In addition to the aforementioned declarations, in the BNDES' financing contracts for export credit, there is a clause that conditions the disbursement of each installment of credit to the absence of any obstruction against official Brazilian support, due to the commitments undertaken by Brazil under the OECD Convention.

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