The UAE Federal Penal Code (Federal Law No. 3 of 1987) (the Federal Penal Code)

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1 United Arab Emirates Summary of UAE's corruption laws within both the public and private sector. Laws are generally promulgated in Arabic in the UAE. We have relied upon English translations of these laws which, although generally accurate, sometimes contain mis-translations or omissions. There is very little information publicly available as to the application of the relevant provisions. Accordingly, it is not always clear how the UAE courts would interpret and apply Reviewed April 2015 PUBLIC OFFICIALS Is there an offence of bribing public officials? Foreign public officials Although the UAE has ratified the UN Convention against Corruption (through Federal Decree No. 8 of 2006), it has not yet enacted any legislation criminalising the bribery of foreign officials. Domestic public officials Bribing a domestic public official may constitute an offence under: The UAE Federal Penal Code (Federal Law No. 3 of 1987) (the Federal Penal Code) UAE Federal Decree No. 11 of 2008 regarding Human Resources in the Federal Government (the HR Law), and/or The Dubai Penal Code (Dubai Law No. 999 of 1970) (the Dubai Penal Code). Furthermore, although not considered in detail in this note, bribery of a domestic public official may be caught under the following legislation: The Federal Armed Forces Law (Federal Law No. 3 of 1971), The Dubai Human Resources Management Law (Dubai Law No. 27 of 2006), and

2 The Abu Dhabi Civil Service Law (Abu Dhabi Law No. 1 of 2006). The following points should be noted: Federal laws apply across all Emirates whereas any Emirate-specific laws apply only in that Emirate. There are separate laws in other Emirates eg Sharjah (which are not specifically considered in this note). A draft federal anti-corruption law was discussed in 2012/13 but no such law has yet been implemented. What is the relevant test for each offence? The Federal Penal Code The Federal Penal Code contains specific provisions in relation to bribing a domestic public official in Articles 234 to 239. The following specific offences should be noted: The soliciting or acceptance by a public officer (or other individual to whom a public service is assigned) for himself or for another person a donation, advantage of any kind or a promise in order to commit or omit an act, whether in the performance of his duties or otherwise (Articles 234, 235 and 236). There does not need to be an intention to commit such an offence (Article 235). The offer to a public officer (or other individual to whom a public service is assigned) a donation, advantage of any kind or a promise, in order that the public officer commits or omits an act in violation of his duties (Article 237). It is still an offence for the offeror of the bribe if the public officer declines the offer. Acting as a mediator between the briber and the receiver in the offering, soliciting, accepting, receiving or promising of a bribe (Article 237). Requesting or accepting, including on behalf of another, a donation, advantage or benefit of any kind in return for exercising influence over a public officer in order that the public officer commits or omits any act and/or breaches his duties (Article 237 bis.). The following points should be noted in relation to the above offences: Public officer is defined as: individuals working in ministries and governmental departments members of the armed forces

3 members of legislative, advisory and municipal councils, and directors, managers and all other employees working in public entities. The UAE Courts have interpreted public officer to include also employees of state-owned or state-controlled entities. The Dubai Penal Code The Dubai Penal Code contains specific provisions in relation to bribing a domestic public official in Articles 118 to 122. The following specific offences should be noted: The acceptance, agreement to accept, obtaining or attempting to obtain by a public servant (or other individual expecting to be appointed as a public servant) of money or other benefit of any kind for himself or for any other person as an incentive to perform any act or omission in the interests of any person (Article 118). Accepting, agreeing to, obtaining or attempting to obtain any money or other benefit of any kind, including on behalf of another person, as an incentive to exercise influence, through corrupt or unlawful means, over a public servant so that the public servant performs an act or omission (Article 119). Offering, giving, or agreeing to give, any money or other benefit of any kind in order to carry out the offences in Articles 118 and 119 (discussed above) (Article 120). Accepting, agreeing to, obtaining or attempting to obtain any money or other benefit of any kind by a public servant for himself or for any other person (without consideration or sufficient consideration) from: any person whom the public servant knows is, or may be, involved in any business concerning the public servant, his manager or colleague(s), or any person whom the public servant knows has an interest in the business, or is a relative, of the person described at i. above.(article 121) Offering, giving, or agreeing to give, any money or other benefit of any kind to a public servant involved with any business of the individual (without consideration or sufficient consideration) (Article 122). The following point should be noted in relation to the above offences: Although the English translation is not clear, public servant appears to be defined as: individuals working in governmental departments, committees or municipal councils, individuals appointed or nominated into jobs pursuant to the Dubai Penal Code, arbitrators (if approved by a court), other judicial members and members of investigative

4 bodies, and individuals acting in a religious capacity (eg those charged with administering marriage or other religious ceremonies). The HR Law The HR Law contains provisions relating to gifts and bribes in relation to public sector employees. The following specific offences should be noted: Acceptance by a public employee of any gift unless it is symbolic advertising or a promotional gift and bears the name and emblem of the entity presenting it (Article 70(1)). The giving of a gift by a public employee except when done in the name of the relevant ministry and with its approval (Article 70(2)). accelerating any work that he is required to undertake, failing to undertake any work that he is required to undertake, or encouraging other public employees to close out any transactions or otherwise undertake an unlawful act or omission. A public employee is defined as any employee who works in any of the jobs mentioned in the budget. Although not certain, the budget is likely to refer to each ministry and, potentially, to departments within each ministry. It is unlikely, however, to include employees of state-owned or state-controlled companies. Can corporates and individuals commit the offence? The Federal Penal Code Both individuals and corporate bodies (excluding government agencies, government departments and public organisations) can be guilty of the bribery offences under the Federal Penal Code (Article 65). A corporate body can be liable when the offence is committed by any of its representatives, directors or agents, acting in the name of the company. The Dubai Penal Code Both individuals and corporate bodies can be found guilty of the offences under the Dubai Penal Code (Article 23). A corporate body (defined as any company or association independent from its members) can be liable if an offence is committed in the name of the company or by an individual legally authorised to act in the name of the company. The HR Law The HR Law is likely to apply to individuals only.

5 Does the offence have extra-territorial effect? The Federal Penal Code Pursuant to Article 16, the Federal Penal Code will apply to an offence: committed in the UAE (including territorial waters and airspace), or committed elsewhere but where: one of the constituent parts of the offence was committed in the UAE the effects of the offence were in the UAE, or the effects were intended to be in the UAE. The Dubai Penal Code Pursuant to Article 8, the Dubai Penal Code will apply to an offence: committed in Dubai (including territorial waters) where only part of the offence was committed in Dubai (and where, if the entirety of the offence was committed in Dubai, it would be caught by the Dubai Penal Code), or committed outside of Dubai but which relates to the security of Dubai. The HR Law The HR Law does not contain any provisions relating to the geographical scope of its application. The situation is thus unclear as to its extra-territorial effect. Are there any exceptions or defences? The Federal Penal Code Under the Federal Penal Code, the briber or the mediator is exempted from punishment if they inform the judicial or administrative authorities of the crime without delay or confess before the case is communicated to the court. If a confession is made after the court becomes aware of the offence, this will be considered in relation to sentencing (Article 239). There are also other defences that will apply generally to any offences under the Federal Penal Code eg duress. In particular, a public officer will not be guilty of an offence if he was executing the order of his superior which he is obliged to do or where he believed in good faith that he was acting lawfully (Article 55). The Dubai Penal Code Aside from the defences applying generally to any offences under the Dubai Penal Code (e.g. duress), there are no defences specific to the bribery offences set out in the Dubai Penal Code. The HR Law There are no exceptions or defences set out in the HR Law.

6 What are the penalties? The Federal Penal Code The following penalties apply to the various offences under the Federal Penal Code: For individuals: Where a public officer accepts a bribe and where the resulting act or omission is in violation of his duties (under Article 234): up to ten years imprisonment a fine equivalent to the benefit received (minimum of AED 1,000), and confiscation of the benefit. Where a public officer accepts a bribe and where the resulting act or omission is not connected with his duties (under Article 236): up to five years imprisonment a fine equivalent to the benefit received (minimum of AED 1,000), and confiscation of the benefit. Where an individual offers to bribe a public officer (under Article 237): up to five years imprisonment a fine equivalent to the benefit offered (minimum of AED 1,000), and confiscation of the benefit. Where an individual acts as a mediator for a bribe (under Article 237): up to five years imprisonment a fine equivalent to the benefit offered (minimum of AED 1,000), and confiscation of the benefit. Where an individual requests or accepts a bribe to exercise influence over a public officer (under Article 237 bis.): up to one year imprisonment

7 a fine (maximum AED 10,000), and confiscation of the benefit. For all of these offences, the public officer s employment may be terminated if he is imprisoned for longer than three months. For corporate bodies: If a corporate body were guilty of any of the above offences, it would be liable to a fine (which would be capped at AED 50,000 if the corporate body is subject to any other punishment) (Article 65). Whilst this cap would appear to operate so as to avoid a corporate body becoming liable to duplicate financial penalties, where the same conduct is found to constitute more than one corporate offence, the legislation does not make the effect of these provisions explicit - as such, it is not clear how the UAE courts would interpret and apply this for the relevant offences. The Dubai Penal Code The following penalties apply to the various offences under the Dubai Penal Code: For individuals: Where a public servant accepts, agrees to, obtains or attempts to obtain a bribe (under Article 118): up to three years imprisonment, and/or a fine of up to AED 5,000. Where an individual accepts, agrees to, obtains or attempts to obtain a bribe in order to exercise influence over a public servant (under Article 119): up to three years imprisonment, and/or a fine of up to AED 5,000. Where an individual offers, gives, or agrees to give, any money or other benefit of any kind in order to carry out the offences in Articles 118 and 119 (under Article 120): up to two years imprisonment, and/or a fine of up to AED 3,000. Where a public servant who accepts, agrees to, obtains or attempts to obtain any bribe from an individual whom the public servant knows is involved in any business with which that public servant is involved (Article 121): up to one year imprisonment, and/or

8 a fine of up to AED 1,000. Where an individual who offers, gives, or agrees to give any money or other benefit of any kind to a public servant involved with any business of that individual: up to one year imprisonment, and/or a fine of up to AED 1,000. For corporate bodies: The Dubai Penal Code does not appear to provide for any specific penalties in the case of offences committed by corporate bodies. However, Article 23 indicates that they should be punished with a fine in lieu of imprisonment. The amount of any such fine is not specified in the Dubai Penal Code. The HR Law The penalties under the HR Law are administrative in nature and comprise the following (depending on the gravity of the offence): a written notice a written warning a reduction in salary of no more than ten days salary per offence and no more than 60 days salary per year, and/or termination of employment. The relevant criminal authority must be informed if the offence also constitutes a criminal offence. PRIVATE SECTOR Is there an offence for bribery within the private sector? A bribery offence can occur in the private sector under the Federal Penal Code. What is the relevant test? It is an offence for any director, manager or employee of any company, private establishment, cooperative society or public utility society to perform, stop performing, or violate any of his duties in return for a promise or donation (Article 236 bis.): the promise or donation can be before or after the commission of the act or omission

9 there is no definition of promise or donation and the wording is not as broad as for the offence of bribing a public official, and there does not need to be an intention to carry out the act or omission. Can corporates and individuals commit the offence? Both individuals and corporate bodies (excluding government agencies, government departments and public organisations) can be guilty of the bribery offence described above (Article 65). Corporate bodies will be liable when the offence is committed by any of its representatives, directors or agents, acting in the name of the company. Does the offence have extra territorial effect? The Federal Penal Code will apply to an offence: committed in the UAE (including territorial waters and airspace) or committed elsewhere but where: one of the constituent parts of the offence was committed in the UAE the effects of the offence were in the UAE, or the effects were intended to be in the UAE. Are there any exceptions or defences? Under the Federal Penal Code, the briber is exempted from punishment if they inform the judicial or administrative authorities of the crime without delay or confess before the case is communicated to the court. If a confession is made after the court becomes aware of the offence this will be considered in relation to sentencing (Article 239). What are the penalties? A maximum of five years imprisonment for any individual guilty of the private sector bribery offence, together with a fine equivalent to the benefit (min. AED 1,000) and confiscation of the actual benefit. If a corporate body is guilty of any of the above offences, it would be liable to a fine (which will be capped at AED 50,000 if the corporate body is subject to any other punishment) (Article 65). Whilst this cap would appear to operate so as to avoid a corporate body becoming liable to duplicate financial penalties, where the same conduct is found to constitute more than one corporate offence, the legislation does not make the effect of these provisions explicit - as such, it is not clear how the Qatari courts would interpret and apply this for the relevant offences.

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