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The Use of Intermediaries in Corrupt Deals Lessons from the Petrobrás Case for Compliance Officers

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The Use of Intermediaries in Corrupt Deals Lessons from the Petrobrás Case for Compliance Officers The Use of Intermediaries in Corrupt Deals Lessons from the Petrobrás Case for Compliance Officers Diogo Moretti Research Fellow IACA IACA RESE ARCH P APER SER IES NO. 06 July 2018 IACA RESEARCH &SCIENCE INTERNATIONAL ANTI-CORRUPTION ACADEMY RESEARCH PAPER SERIES NO. 06 LEGAL NOTICE Copyright © Diogo Moretti/International Anti-Corruption Academy (IACA). All rights reserved. Private, non-commercial use is permitted with the scope of copyright law provided that this work remains unaltered, due credit is given to the author, and the source is clearly stated. The work has been produced by the author in the framework of IACA’s research activities and underwent editorial revisions in October 2018. The views expressed therein are the author’s views and do not necessarily reflect the views of IACA. PUBLISHER International Anti-Corruption Academy (IACA) Muenchendorfer Str. 2 2361 Laxenburg AUSTRIA +43 (0)2236 710 718 100 www.iaca.int [email protected] Laxenburg 2018 1 INTERNATIONAL ANTI-CORRUPTION ACADEMY RESEARCH PAPER SERIES NO. 06 1. Introduction concerned, Petrobrás commissioned numerous capital-intensive projects, such as the modernization of its refineries, oil platforms, oil vessels, and gas pipelines In the evening of 17 March 2014, agents of (Azevedo 2009). the Brazilian Federal Police arrest Alberto Youssef. He is in a hotel room in São Luís, the The type of scheme that the police were capital city of the State of Maranhão in investigating in Operation Car Wash is quite northern Brazil. Authorities already know common both in Brazil and abroad.2 It Youssef; he had been convicted for acting as involved the manipulation of the procurement an intermediary for corruption several years processes in mega-projects, as well as other before (Netto 2016, Prólogo). He is suspected related offenses, such as bribery (kickbacks) of committing the same crime, once again, and money-laundering. but no one can predict at that moment that his arrest will eventually lead to the largest The Petrobrás corruption scheme involved corruption investigation in the history of three main parties: (a) construction firms, (b) Brazil. high-ranking bureaucratic officials from Petrobrás, and (c) federal-level politicians. The so-called Operation Car Wash (“Operação They acted in concert to raid the coffers of Lava Jato”, in Portuguese) revealed a vast the oil company. In exchange for large scheme of systemic corruption1 that lasted kickbacks, a group of Petrobrás executives for about ten years, during the governments awarded large infrastructure projects to a of Presidents Luiz Inácio Lula da Silva (2003– group of construction firms. The firms were 2010) and Dilma Rousseff (2011–2016), both organized in a cartel to defraud the bidding representing the Workers’ Party. This ten-year processes through price fixing, market period coincided in large part with the sharing, bid rotation, and cover pricing, dramatic rise in oil prices that began in the without opposition from these executives, year 2000, and with consequent investment who eventually signed construction in infrastructure (Folha de S. Paulo 2014) by agreements with an overcharge of up to 3%. the state-owned “Brazilian Petroleum Portions of the overcharge were diverted to Corporation” (“Petróleo Brasileiro S.A.” or “Petrobrás”). 2 According to the Organization for Economic Cooperation and Development (OECD, 2014), bribes Petrobrás is a gigantic multinational firm in were promised, offered, or given to employees of the oil and gas industry. In 2014, at the public enterprises (state-owned or controlled beginning of Operation Car Wash, it had enterprises, SOEs), such as Petrobrás, in 27% of all 427 published revenues of about $140 billion bribery cases reported by the signatory countries of U.S., and was the world’s 28th largest the OECD Anti-Bribery Convention (1999–2014). The company (Fortune 2016). Over the period same report also informs the readers that in the majority of cases, bribes were paid to obtain public 1 procurement contracts (57%). Moreover, the Systemic corruption is based on the development of extractive sector (which includes oil and gas) and the coordination mechanisms, informal norms, and construction sector (also involved in the Petrobrás sanctions, the attribution of roles, and the distribution case) are commonly vulnerable to corruption: 19% and of benefits to key actors. It flourishes by building up 15% of all foreign bribery cases occur in these two protective barriers against the internal risks of sectors respectively (OECD). Therefore, the bribery defection and free riding, and the external threat of scheme to be explored herein is typical in many judicial action and political reform (Vannucci 2009, aspects. p.258). 2 INTERNATIONAL ANTI-CORRUPTION ACADEMY RESEARCH PAPER SERIES NO. 06 Petrobrás executives and also to the Intermediaries are widely employed in politicians from the governing coalition who corrupt transactions worldwide. At least 71% had appointed the executives involved in the of the 427 bribery cases reported by the award of the construction contracts. The signatory countries of the OECD Anti-Bribery three parties of the scheme often employed Convention between 1999 and 2014 involved intermediaries: especially the firms and the an intermediary (OECD 2014, p.29). More Petrobrás executives. than 90% of the 240 Foreign Corrupt Practices Act (FCPA) cases in the United The Petrobrás case has been considered one States from 1977 to mid-2017 also involved of the world’s largest corruption scandals an intermediary (Stanford Law School and (The Guardian 2017), involving more than $5 Sullivan & Cromwell LLP 2017). billion U.S. of illicit payments and involving much of Brazil’s political and business elite. The present case study investigates some of At the time of writing (October 2017) more the reasons why intermediaries were so than 80 sitting Brazilian politicians were widely employed in the Petrobrás scheme to under investigation and more than 250 help understand this common international Petrobrás officials, past and present phenomenon. Intuitively, one might assume politicians, and businesspeople had been that the payer and the receiver of bribes indicted. Moreover, the scandal spread to 16 would be better off simply transacting with countries in four different continents. one another directly. By avoiding the intermediary, fewer people would know their As an intermediary, Alberto Youssef used to secret, and they would also avoid paying fees assist those giving and receiving bribes to to an additional party. However, neither the make their exchanges, including money- international statistics in general nor the laundering services. According to the Petrobrás case in particular support this authorities, Youssef alone conducted as many intuition: corrupt parties often use as 3,500 international fund remittances, intermediaries to conduct their exchanges. between 2011 and the time of his arrest in March 2014 (Netto 2016, Velhos The frequent use of intermediaries is due to, Conhecidos), transactions that totalled $400 inter alia, the assistance they offer in million U.S. In fact, Youssef turned out to be reducing the costs of corrupt transactions. only one of at least 16 intermediaries This paper will discuss three selected reasons investigated by Operation Car Wash (Estadão for this, related to three specific transaction 2016). costs of corruption: (i) managing the risk of being detected by law enforcement The OECD has described an intermediary as authorities, (ii) solving the communication an individual or legal entity that is put in problems that directly affect the initiation contact with or in between two or more and set-up of illegal transactions, and (iii) trading parties (2009, p.5). In business operating complex money-laundering contexts generally, an intermediary is a schemes. In addition, the present paper is conduit for goods or services offered by a intended to provide insights for practitioners supplier to a customer. The intermediary can in different areas, primarily compliance take part in legitimate economic exchanges, officers operating in companies exposed to in illegitimate ones, or in a combination of the risk of engaging corrupt intermediaries in the two (OECD). public-works projects in particular. Thus, several red flags that help identify risks will be listed, due diligence references will be 3 INTERNATIONAL ANTI-CORRUPTION ACADEMY RESEARCH PAPER SERIES NO. 06 provided, and suggestions will be made The events researched in this paper occurred concerning contractual provisions and roughly between 2004 and 2014. As of performance monitoring measures. October 2017, investigations are still ongoing. While it appears unlikely, it is possible that, as the investigations and trials continue, new data may emerge that might 2. Methodology contradict, or prompt different interpretation of the facts presented here. Readers of this study should take this potentially fluid reality Case studies permit the examination of into account. factual phenomena to better comprehend Nevertheless, the short elapsed time between how economic agents manage their the disclosure of the facts in question and problems. The examination of real-life cases the undertaking of this study should not can uncover the rules agents decide to itself be seen as a source of bias. The follow, their strategies, how they coordinate assumption that facts that have gone through their activities, etc. Thus, the case study the filters of history are more precisely or methodology is most appropriate
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