BRAZIL Trends and Developments Contributed by: Maria Augusta Rost, Ricardo Barretto and Cleso Fonseca, Fenelon Barretto Rost
Alternative Dispute Resolution Methods Brazil is recognised in the international com - munity as one of the countries with the most advanced regulations regarding the use of alternative dispute resolution methods by pub - lic administration. Law 13,129/2015 estab - lished regulations for arbitration involving public administration, while Law 13,140/2015 created the legal framework for mediation. These mechanisms have proven particularly rel - evant for: • resolving disputes related to infrastructure concession contracts; • disputes involving state-owned enterprises; and • conflicts concerning complex and high-value administrative contracts. The Federal Court of Accounts (TCU) has played a key role in fostering consensual solutions in disputes with the federal administration, includ - ing major cases in the infrastructure sector. Conclusion and Outlook Brazilian public and administrative law has evolved significantly in recent decades, striving to balance transparency, oversight and efficien - cy. For investors and companies interested in operating in Brazil, it is essential to: • understand the complexity of the administra - tive system and its multiple oversight bodies; • properly plan interactions with different governmental agencies and levels, ensuring compliance with relevant legal procedures; • implement robust compliance programmes; • seek professional legal counsel, which is cru - cial in judicial disputes; and • consider the use of alternative dispute resolu - tion methods when appropriate.
Law 8,987/1995 governs public service and public works concessions, as well as public service permissions. Law 11,079/2004 estab - lishes general rules for public-private partner - ship (PPP) bidding and contracting within public administration. Both are national laws, meaning they apply to the federal government, states, the federal district and municipalities. Public service and infrastructure concessions are particularly relevant and increasingly common. These are long-term contracts for the operation of activities in sectors such as energy, transpor - tation, ports, airports and sanitation. Such con - tracts must comply with the Concessions Law, sector-specific regulations, the bidding notices (which govern the competitive process, usually through auctions) and contractual clauses. Compliance and Integrity in the Public Sector The strengthening of compliance mechanisms represents a significant evolution in Brazilian administrative law. The Anti-Corruption Law (Law 12,846/2013) introduced the following. • Objective administrative and civil liability of legal entities for harmful acts against the pub - lic administration, both domestic and foreign. • Incentives for the adoption of internal compli - ance programmes. • The possibility of leniency agreements. • Severe administrative and civil sanctions for corruption cases. Companies seeking to operate in Brazil must be prepared to implement compliance programmes that meet the requirements of Brazilian legisla - tion. These programmes should aim to prevent, detect and remediate acts covered by the Anti- Corruption Law, such as bribery and fraud in public procurement processes.
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