Finocchio & Ustra Sociedade de Advogados | View firm profile
To optimize your time, the answer to the above question will be given in the first sentence of this article: it seems so. At least this is the feeling we get when we read news about situations that, in the recent past, would not be on the agenda.
The most recent and significant example is the episode involving the replacement of the president of Petrobras S/A, the largest Brazilian company and one of the largest companies in the world in the oil & gas industry.
That is because, at a certain time, the largest and main shareholder considered the appointment of an executive to the position of chairman of the company’s board, a position that would lead him to the presidency of the company.
It did not take more than 48 hours for potential conflicts of interest to be raised, since such a professional had among his own ventures investments in oil and gas companies.
In addition, this was brought up not only by market analysis, experts, or the press but by the company’s internal committee, which constituted and structured for the application of corporate compliance best practices.
And the fact that this happened in a company that was involved in one of the biggest cases of corruption and mismanagement a few years ago, is a sign of maturity. It is also a strong indication that mistakes have been recognized, and processes and analyses have been improved.
As a result, the appointment was canceled.
And this is not the only emblematic case involving conflicts of interest that have made the news in Brazil in the past weeks.
We can mention the ongoing investigation which was submitted by the former director of the Department of Informatics of the Unified Health System (“DataSUS”), who has just taken over the position of strategic business development manager in one of the leading global technology players.
The former director was responsible for the negotiations with the said company, on behalf of the Government, to hire cloud services to store all data from DataSUS for the estimated amount of BRL 245 million.
It is worth clarifying that conflict of interests in the corporate environment occurs whenever the employee/director (the executive, in this case) is in a situation that can lead him to make decisions influenced by interests that are not the most beneficial to the company, such as interests related to his own business.
Or when the employee/director uses his influence or any strategic and confidential information he has due to the function he performs and acts to benefit personal interests and third parties that go against the interests of the company or may cause damage or financial losses to it.
However, it is prudent to point out that the conflict of interest, as a rule, is always a possibility, that is, it is not certain that the conflicted professional will act for his own or third party’s benefit and to the detriment of the company, but the mere possibility of this happening must be mapped and evaluated.
Hence the recommendation that any conflict of interest, whether real or potential, personal or not, should be reported for evaluation by a compliance committee.
Despite surveys such as the Corruption Perception index, coordinated by Transparency International, showing a slight worsening in the overall perception framework for Brazil between 2020/and 2021, small victories, such as the cases mentioned above, cannot be ignored.
In fact, according to data from the yearbook Análise Executivos Jurídicos e Financeiros 2021, 87% of the largest companies in the country have an internal compliance area, as opposed to 68% in 2015 and 79% in 2018.
In an interview with the yearbook, only 6% of the 103 Compliance Heads heard showed difficulties acting independently in companies, and 49% indicated that they report directly to the CEO or the Board of Directors of the companies where they operate, which evidences the autonomy necessary for the exercise of their duties.
In addition, it is worth highlighting law No. 14,133/2021, which regulates the conduct of bids and contracts by the Government in Brazil, and determines that companies that have compliance programs earn points in bidding procedures, besides the mandatory existence of compliance programs in the winning companies that supply or carry out works or services of an estimated value of more than BRL 200,000,000.00.
It is important to reiterate that 20 or 15 years ago, the theme “corporate compliance” was residual in Brazil, not to say nonexistent. Even if the lesson has been hard to learn, now people and markets have some important corporate compliance institutes and react when something does not seem appropriate.
Evidence of this maturity process is that consumers, the market, and society, in general, require companies to disclose their codes of conduct, and their ethics and compliance hotline. Companies must also have diversity committees, perform due diligence in the supply chain, and have personal data governance, not to mention social and environmental responsibility. All of this is now considered essential.
The journey in corporate compliance is challenging, long, and dynamic, but “A Journey of a Thousand Miles Begins with a Single Step.”