Medina Osorio Advogados

TheLegal500 brings an exclusive interview with Brazilian jurist Fábio Medina Osório, founder of the International Institute for State Law Studies (IIEDE), in which he presents IIEDE's greatest achievements and discusses the Institute's plans for the future. Check it out!   1) 2023 marked the 20th anniversary of the International Institute for State Law Studies (IIEDE). What is your perspective when looking back on the IIEDE's history? A: The Institute was born from a joint idea that Prof. Humberto Ávila and I had in Porto Alegre, Rio Grande do Sul, in the early 2000s. Based on this idea, we brought together numerous professors and academics and Professor Eduardo García de Enterría from Spain, whose participation was decisive, so much so that a large part of the founding professors and lecturers came precisely from Spain and from the García de Enterría School of Lecturers. For the inauguration of the Institute, we conceived and held the seminar "The New State Law", on which occasion Prof. García de Enterría was awarded an honorary doctorate, the first honorary doctorate he received in Brazil. That seminar was attended by nearly 600 people, including speakers such as Prof. Luis Roberto Barroso and Justice Gilmar Mendes, among other illustrious speakers. Since then, the Institute has held numerous successful national and international seminars. The Institute's central feature is its dialog with civil society.   2) The Institute is dedicated to the study of State Law. What is the scope of this area of law? A: The International Institute for State Law Studies encompasses a wide range of very different legal disciplines. Most of the Institute's professors are constitutional, administrative and tax law experts. However, the State exercises its power through multiple legal disciplines. In this sense, the Institute is also open to the study of criminal law and other legal disciplines that have a bearing on matters related to state power. Capital market law, banking law, competition law and consumer law are all legal disciplines that have interfaces with administrative sanctions law. These matters, which relate to the State's power to impose sanctions, have been the subject of studies and seminars within the Institute. The perspective of state law must be considered as comprehensively as possible.   3) What are IIEDE's prospects for the next ten years? A: We intend to expand our dialog with the private sector and universities, along the lines of the agreements we already have with institutions like the CVM (Brazilian Securities and Exchange Commission). We also plan to create digital magazines to disseminate the intellectual work of IIEDE's collaborators. Another project is to deepen the research groups in order to collaborate with civil society and institutions, including assisting with draft legislation. IIEDE must increasingly become a knowledge production powerhouse for the improvement of institutions.  

Soon after the enactment of Law 12,846/2013, the so-called Anti-Corporate Corruption Law, you were interviewed by Veja magazine, in Brazil, to point out perspectives of this legislation in 2014. On that occasion, you warned about the risks of abuses and misuse of power by inspectors and about possible legal insecurity. What is your assessment on the evolution of the fight against corruption in Brazil? Brazil has strong and solid institutions, and a stable democracy. The anticorruption law represents an advancement in the current regulatory system, which now requires vigilance from companies in the private environment. However, in reality, the multiplicity of supervisory bodies that manage this law generates legal uncertainty. Likewise, there are many open concepts in the law that provide a certain degree of discretionality to interpreters, which also produces uncertainties. Abuses and deviations have occurred in the managing of this law. Companies cannot be made unviable by the acts of their leaders. In Brazil, the fight against corruption has improved greatly in recent years, but it has also sacrificed countless businesses. This must be reviewed. How important are administrative impropriety or corporate misconduct lawsuits against offending companies? These cases provide the environment for leniency agreements. These agreements, however, should not serve to lead companies to bankruptcy. In the lawsuits, the institutions are obliged to point out certain losses signaled in expert opinions or reports. But the agreements do not have to follow these numbers. They have other purposes, among which are the preservation of jobs and the company´s social function, in addition to identifying the responsible individuals. The supervisory bodies should look at more realistic parameters in the agreements, using an economic reading and analysis of the Law. Does a company, in order to operate in Brazil, need effective compliance? The Corporate Anticorruption Law adopted the concept of effective compliance, which is actual compliance as opposed to illusory or theoretical compliance. Companies need certified compliance or a certification-searching compliance. They need an independent compliance officer, with a contract that guarantees his/her autonomy. The investment in the implementation of effective compliance brings legal security and quality. The business environment in Brazil is competitive and regulated. Having compliance is a market differential. What are the risks for international investors who are ensnared by so-called "illusory or theoretical compliance"? "Theoretical compliance" is forbidden in Brazil and can generate liabilities for companies and their managers. It is an alleged "compliance" that exists only on paper and not in the company´s organizational reality, serving as a front to cover up illicit acts. This kind of tool constitutes a violation of the anticorruption corporate law. It is a fraud and an attempt to frequently hinder investigations. There is a very high risk in hiring law firms or companies that implement compliance, since it is necessary to verify the expertise of the professionals involved in this line of work. The culture of compliance is, in reality, a global culture that permeates international businesses. In this sense, Brazil is inserted in the international community and Brazilian legislation is aligned with the best international practices.