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Contributing Editors: Jonathan Pickworth & Jo DimmockPublished by Global Legal Group

Bribery & Corruption

Third Edition

CONTENTS

Preface Jonathan Pickworth & Jo Dimmock, White & Case LLP

Albania Adi Brovina & Dritan Jahaj, Haxhia & Hajdari Attorneys at Law 1Australia Greg Williams & Tobin Meagher, Clayton Utz 8Austria Norbert Wess, Bernhard Kispert & Dietmar Bachmann, wkk law attorneys at law 22Brazil Alberto Zacharias Toron, Edson Junji Torihara & Luisa Moraes Abreu Ferreira, Toron, Torihara & Szafir Advogados 30Canada Riyaz Dattu, Osler, Hoskin & Harcourt LLP 40Cayman Islands Martin Livingston & Adam Huckle, Maples and Calder 47China Catherine E. Palmer, Tina Wang & Chi Ho Kwan, Latham & Watkins 56Cyprus CostasStamatiou&AndreasChristofides,Andreas Neocleous & Co LLC 69France Emmanuel Marsigny, EMMANUEL MARSIGNY AVOCATS 78Germany Hans-Peter Huber, Knierim | Huber 89Ghana Esi Tawia Addo-Ashong, Ashong Benjamin & Associates 97Hong Kong Kareena Teh & Fabian Roday, Dechert 108Indonesia R. Suharsanto Raharjo & Pamela Kiesselbach, Hiswara Bunjamin Tandjung in association with Herbert Smith Freehills 123Ireland Jamie Olden, Brendan Hayes & Caitríona Harte, Ronan Daly Jermyn 128Italy Roberto Pisano, Studio Legale Pisano 142Japan Daiske Yoshida & Junyeon Park, Latham & Watkins 153Mexico Luis F. Ortiz, OCA Law Firm 164New Zealand Ben Upton, Simpson Grierson 173Portugal Paulo de Sá e Cunha, Marta Saramago de Almeida & Carolina Mouraz, Cuatrecasas, Gonçalves Pereira 182Romania Mihai Mares, Mares / Danilescu / Mares 188Serbia Vladimir Hrle, Hrle Attorneys 203Spain Fermín Morales Prats & Thea Morales Espinosa, Gabinete Jurídico Fermín Morales 209Sri Lanka Sudath Perera, Deshan Hewavithana & Zahrah Cader, Sudath Perera Associates 219Switzerland Marcel Meinhardt & Fadri Lenggenhager, Lenz & Staehelin 232Turkey Gönenç Gürkaynak & Ç. Olgu Kama, ELIG, Attorneys-at-Law 240Ukraine Svitlana Kheda, Sayenko Kharenko 246UAE Khalid AlHamrani, Ibtissem Lassoued & Andrew Hudson, Al Tamimi & Company 258United Kingdom Jonathan Pickworth & Jo Dimmock, White & Case LLP 263USA Jeremy B. Zucker & Darshak Dholakia, Dechert LLP 277

GLI - Bribery & Corruption Third Edition 258 www.globallegalinsights.com

United Arab EmiratesKhalid AlHamrani, Ibtissem Lassoued & Andrew Hudson

Al Tamimi & Company

Brief overview of the law and enforcement regime

Legal systemThe UAE is a civil law jurisdiction, comprising seven Emirates (Abu Dhabi, Ajman, Dubai, Fujairah, Ras Al-Khaimah, Sharjah and Umm Al-Quwain). Each Emirate has its own court system, which applies local and federal laws at Court of First Instance and Court of Appeal levels. Beyond that, Dubai and Ras Al-Khaimah have their own Courts of Cassation, whereas appeals from the Courts of Appeal of the other five Emirates are heard by the Federal Supreme Court in Abu Dhabi.Dubai also has a common law court in the Dubai International Financial Centre (“DIFC”), a financial free zone in Dubai. The DIFC Courts are considered part of the Dubai Courts in the sense that judgments of the DIFC Courts do not need to be ratified before they can be enforced in the Dubai Courts, but they operate under a separate, common law, English-language legal system and do not have jurisdiction over criminal matters.Legislation and offencesThe main legislation in the UAE governing bribery and corruption is Federal Law No. 3 of 1987, as amended (“Federal Penal Code”). Provisions combatting corruption in the public sector are also found in the following laws:• Federal Law No. 11 of 2008 (“Federal Government HR Law”).• Dubai Law No. 27 of 2006 (“Dubai Government HR Law”).• Federal Law No. 3 of 1971 (“Armed Forces Law”).• Various Laws relating to governmental contracts and procurement.The Federal Penal Code expressly criminalises active and passive bribery in the public sector, and passive bribery in the private sector.In the public sector, bribery in all its forms includes soliciting or accepting, directly or indirectly, a donation or advantage of any kind, or a promise of anything of the like. These acts may be done either before or after the commission or omission of an act in violation of the public officer’s duty. A bribe for the commission or omission of an act that is a legitimate duty of the public officer’s function (facilitation payment) is also criminalised.The provision relating to the private sector prohibits the direct or indirect demand or acceptance of a donation, or a promise thereof, in order to commit or omit any of the duties of one’s job or to breach such duties. Although active bribery in the private sector is not specifically criminalised by the law, prosecution is possible by using the ‘accomplice’ provisions of the Federal Penal Code.In all cases, it is the bribe that is criminalised, rather than the subsequent commission or omission of an act. As such, the offence shall be considered complete even if the recipient intends not to commit or omit such an act or if the offer of a bribe is declined.


Al Tamimi & Company United Arab Emirates

A mediator to a bribe will be liable to the same penalty as the paying/promising and receiving/demanding parties. The bribe payer or mediator may be exempted from prosecution if he informs the authorities of the crime before it is discovered.There is no separate offence under UAE law relating to bribery of foreign public officials.Investigating and prosecuting authoritiesThe relevant Emirate’s Public Prosecution oversees and directs the Police in the conduct of investigations into bribery and corruption. There is currently no special agency dedicated to anti-bribery and corruption investigations, although the establishment of an Anti-Corruption Unit has been announced.PenaltiesThe maximum penalties for bribery offences are as follows:• 15 years’ imprisonment for passive bribery committed by a public officer in order to act

in violation of his duties (10 years for facilitation payments).• 10 years’ imprisonment for passive bribery committed by a public officer after an act in

violation of his duties (three years for facilitation payments).• Five years’ imprisonment for passive bribery committed by a public officer in order to

commit an improper act which is not related to his function.• Five years’ imprisonment for bribery committed by a person in the private sector,

whether before or after the improper act or omission.• Five years’ imprisonment for active bribery of a public officer. The same penalty

applies to a mediator in the bribery.• Three years’ imprisonment for a person who requests payment to intervene or exert

influence to get a public officer to act improperly.In all cases, the offender shall also be punished with a fine equivalent to the amount of the bribe, provided that it is a minimum of Arab Emirates Dirhams (AED) 1,000. Further, any bribe accepted by the public officer shall be confiscated.Other legal consequencesBribery by a contractor or supplier in a government contract may lead to the revocation of the contract by the contracting government entity, seizure of the performance bond and the execution of the contract at the cost of the contractor or supplier.

Overview of enforcement activity and policy during the past two years

In 2012, the Federal Supreme Court convicted an individual of offering a bribe to a public official. The bribe was offered to a Customs Officer in Ajman Port and Customs, with the intention that he would allow the entry of certain goods without inspection. Offering a bribe to a public official for the exclusion of duties assigned to him is a violation of the Federal Penal Code. The Court of First Instance imposed a sentence of six months in prison and a fine of AED3,000 and confiscated the amount of the bribe. The sentence was reduced to three months on appeal.

Law and policy relating to issues such as facilitation payments and hospitality

Facilitation paymentsFacilitation payments are not permitted under UAE law. The bribery articles of the Federal Penal Code prohibit bribery in return for the commission or omission of an act that is a legitimate duty of a public officer’s function.



In addition, Article 70 of the Federal Government HR Law specifically prohibits any government employee from accepting, taking or offering any amount of money, service or anything of material or moral value to spoil the course of action by taking any act that would:• Accelerate any work that the employee is required – by his job – to do.• Lead to the employee’s failure to do an assigned task.• Lead one employee to influence another to finish an application or take any procedure

in violation of the existing laws.HospitalityHospitality of government officials is governed by the Federal Government HR Law, with mirror provisions in the Dubai Government HR Law.Article 70 of the Federal Government HR Law prohibits the acceptance of gifts by government employees, unless the gift is a promotional product and bears the name and emblem of the presenting entity. Gifts may not be distributed unless in the name of the Ministry, so a personal gift may not be given by a government employee.

Key issues relating to investigation, decision-making and enforcement procedures

Self-reportingArticle 239 of the Federal Penal Code provides that the bribe payer or middle-man will be exempt from prosecution for the offence if the crime is self-reported to the authorities before it is discovered.ReconciliationArticle 20bis of Federal Law No. 35 of 1992 as amended (“Penal Procedures Law”) provides that the victim of certain offences, including Breach of Trust (embezzlement is one method of committing this offence), is entitled to request the Public Prosecution to confirm reconciliation between the offender and the victim, which may result in the termination of the criminal proceedings.

Overview of cross-border issues

The UAE is signatory to several regional and international bilateral and multilateral treaties, such as the Riyadh Arab Convention on Judicial Co-operation (ratified by Federal Decree No. 53 of 1999), the United Nations Convention Against Transnational Organised Crime (“UNCTOC”) (ratified by Federal Decree No. 35 of 2007) and the United Nations Convention against Corruption (“UNCAC”) (ratified by Federal Decree No. 8 of 2006). The UAE is also a member of the Middle East & North Africa Financial Action Task Force (“MENA-FATF”) and the Egmont Group of Financial Intelligence Units. The UAE is ranked by Transparency International as 25th out of 175 in the Corruption Perceptions Index, making it the highest-ranking country in the Middle East.Mutual legal assistanceThe underlying law that governs matters of mutual legal assistance is Federal Law No. 39 of 2006 concerning International Judicial Assistance in Criminal Matters (“International Assistance Law”). This law contains comprehensive provisions on incoming and outgoing requests for judicial assistance in criminal matters and extradition.In the absence of a treaty, the UAE authorities may extend co-operation on the basis of reciprocal treatment, as prescribed by Article 2 of the International Assistance Law. In practice, diplomatic channels are used to request judicial assistance. The request and all



supporting documents must be translated into Arabic and submitted to the relevant authority via diplomatic channels. Article 45 provides that the competent judicial authority may act provisionally in urgent situations, upon requests that have not yet satisfied the procedural requirements of the law, for instance to secure evidence that may otherwise be dispersed or damaged.Article 43 of the International Assistance Law lists the type of judicial assistance available under the law, such as providing assistance to Foreign Judicial Authorities in identifying or locating a suspect, conducting search operations, seizing property and obtaining information and evidence.In line with international principles of law, and similarly to most other jurisdictions, the UAE includes the concepts of ‘dual criminality’ and ‘specialty’ in the International Assistance Law. Grounds for refusal of mutual legal assistance or extradition include the presence of substantial grounds for believing that the request is based on discrimination in terms of race, religion, nationality or political opinion. The UAE does not extradite its nationals.

Corporate liability for bribery and corruption offences

Article 65 of the Federal Penal Code imposes corporate liability on legal persons (with the exception of governmental agencies and public organisations) for criminal acts committed in the name, or for the benefit, of the entity. This is a general provision of the Federal Penal Code and is not limited to bribery and corruption offences. The maximum fine that can be imposed on a corporation is currently AED50,000. In addition to corporate liability, the individual(s) who committed the crime may also be prosecuted.

Proposed reforms / The year ahead

In May 2015, the Abu Dhabi Executive Council (the local Executive Authority for the Emirate of Abu Dhabi) issued a directive to the Abu Dhabi Accountability Authority instructing the establishment of an Anti-Corruption Unit. The date for establishment of the unit has not been announced at the time of writing. The unit’s responsibilities will be twofold: (i) investigation into corruption and financial violations; and (ii) addressing deficiencies within the legislative framework so as to strengthen the defence mechanism and eventually lead to a reduction in the number of corruption-related crimes.


Khalid AlHamraniTel: +971 4 364 1641 / Email: [email protected] AlHamrani is an Emirati lawyer and the Regional Head of Al Tamimi & Company’s Financial Crime Practice. He has extensive experience representing government-owned corporations, financial institutions and high-profile clients in corporate commercial fraud, bribery and money laundering cases including multiple jurisdictions. Khalid has also dealt with compliance and regulatory matters involving government authorities in the UAE along with forgery and embezzlement-related matters.

Ibtissem LassouedTel: +971 4 364 1641 / Email: [email protected] Lassoued is a Partner in the Regional Financial Crime Practice at Al Tamimi & Company. She has extensive experience advising a variety of clientele on a spectrum of white-collar crime matters which have spanned the globe. These include complex corporate fraud, tracing, freezing and recovery of assets, anti-money laundering, anti-terrorism, extradition (acting both for States submitting extradition requests and individuals who are subject to a request) and mutual judicial cooperation, including issues relating to foreign judgments and Interpol notices.Furthermore, she advises clients on international economic sanctions, boycott regulations, embezzlement, fraud and corruption, including advising multinational companies, global banks and international firms, and assisting with multijurisdictional investigations where the applicability of foreign regulations needs to be considered (e.g. the anti-corruption laws such as the US FCPA and the UK Bribery Act).

Al Tamimi & CompanyFloor 6, Building 4 East, Dubai International Financial Centre, PO Box 9275, Dubai, UAE

Tel: +971 4 364 1641 / Fax: +971 4 364 1777 / URL: http://www.tamimi.com


Andrew HudsonTel: +971 4 364 1641 / Email: [email protected] Hudson is an English-qualified Barrister and a Senior Associate in Al Tamimi & Company’s Financial Crime Practice. He was previously a Prosecutor for the Crown Prosecution Service in England.Andrew acts for individual and corporate clients in issues relating to white-collar crime including fraud and embezzlement, bribery and corruption. He also advises clients in respect of economic sanctions and other boycott regulations and has experience of dealing with cases involving mutual legal assistance and extradition.

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