BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá, Bermudes Advogados
• the National Mining Agency (ANM); • the National Agency of Electric Energy (ANEEL); and • the National Agency for Telecommunications (ANATEL). The adequacy of the measures taken by the company to respond to a crisis will also be closely watched by the relevant regulator – with- in its respective authority – as well as by the jus- tice institutions (public prosecutors and public defenders), particularly as pertains to measures to mitigate and repair collective and diffuse dam- ages, as well as damages caused to multiple third-party individuals. 2.5 Transparency Requirements From a regulatory perspective, companies faced with a crisis are expected to observe the usual transparency and market-reporting obligations, which vary depending on whether they are a public-traded company or not. A company faced with a crisis, however, will suf- fer significant pressure from the media and the public for adequate transparency of its efforts, including to maintain its reputation (which in turn affects the perspectives of potential consumers and prospects of business continuity, depending on the case and sensitivity regarding the crisis’s origin). The company will also receive multiple demands for information from public authori- ties and will be expected to meet challenging deadlines under the significant pressure of legal liability. 2.6 Sectorial Requirements Each regulated sector will have regulatory pro- visions establishing measures for adequately managing the risks associated with the activity, with the view towards mitigating and preventing the risk and properly addressing its consequenc-
es if it occurs. Usually, the respective regulation also provides for reporting obligations, to enable regulatory oversight. 2.7 Public-Private Co-Operation There are no pre-structured public-private co- operation frameworks for crisis prevention or response. Mapping the relevant governmental authorities and paths for their engagement dur- ing a time of crisis is one of the necessary steps when drafting an adequate crisis response plan for a company. 2.8 National Crisis Management Plan There is no national crisis management plan or policy in Brazil, and one of the most complex challenges a company will face during a crisis is dealing with different authorities that hold differ- ent – and sometimes conflicting – positions on the same matter. 2.9 Inter-Agency Co-Operation Organising the demands from governmental authorities and creating adequate circumstanc- es for their co-operation will depend mostly on the company’s efforts in this regard. There have been situations in the past where inter-agency or inter-institution protocols were created, but these are not a rule nor is there an obligation for these authorities to do so. Effective co-oper- ation, therefore, will arise from proper engage- ment of these authorities and creating an envi- ronment for them to work together. 3. Corporate Crisis Management 3.1 Crisis Management Plans Structuring an adequate crisis management plan needs to consider at least the following.
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