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Anticorruption in Brazil: From Transnational Legal Order to Disorder

  • Michelle R. Sanchez-Badin (a1) and Arthur Sanchez-Badin (a2)

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While the United States has had almost fifty years of experience with anticorruption law involving transnational enforcement, Brazilian anticorruption enforcement has not yet celebrated its first decade. In the notorious Car Wash case, however, Brazil is wrestling with the largest anticorruption investigation ever. The Car Wash case has resulted in numerous claims brought by a host of domestic agencies and foreign governments, many of which lack experience in anticorruption law. This essay argues that the Car Wash case reveals the weaknesses of the transnational anticorruption legal apparatus in Brazil. At both the national and transnational levels, the lack of coordination and the existence of competition among different levels of authority have undermined the main pillar of the regime: the collaboration agreements and the corresponding protection granted to whistleblowers. The Car Wash case illustrates how the current transnational anticorruption legal regime fails to promote order over disorder.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 The case started on March 17, 2014 with twenty-eight arrests, nineteen raids, and eighty-one searches and seizures. To date, 306 people have been arrested in the Car Wash operation, and the estimate of losses on Brazil associated with the underlying offenses are around US$15 billion. Detailed information about the Car Wash case is available in Portuguese at http://www.mpf.mp.br/grandes-casos.

2 Transnational Legal Ordering and State Change (Gregory C. Shaffer ed., 2013).

3 Michelle R. Sanchez-Badin & Fabio Morosini, Navigating Between Resistance and Conformity with the International Investment Regime: The Brazilian Agreements on Cooperation and Facilitation of Investments (ACFIs), in Reconceptualizing International Investment Law From the Global South 218 (Fabio Morosini & Michelle R. Sanchez-Badin eds., 2017).

5 Since June 2019, the media has published intercepted communications among the officials leading the Car Wash operations. The content of the communications shows that the authorities involved are inexperienced with the new system of collaboration. See Secret Brazil Archive, The Intercept (2019).

6 According to the Organisation of Economic Co-operation and Development, “whistleblowing procedures are presently hampered by concurrent competences and parallel systems for similar ofences, which make it difficult to protect whistleblowers effectively. Most OECD countries have dedicated whistle blower protection laws while Brazil does not.” See Org. for. Econ. Co-Operation & Dev., Economic Surveys Brazil (Feb. 2018).

7 By November 2019, the Brazilian Supreme Court is expected to rule on the binding effects towards other public entities of a collaboration agreement settled with the FPO. Repercussão Geral no REx 1.175.650 – PR, Justice Alexandre de Moraes.

8 Low et al., supra note 4, at 587.

Anticorruption in Brazil: From Transnational Legal Order to Disorder

  • Michelle R. Sanchez-Badin (a1) and Arthur Sanchez-Badin (a2)

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