Bermuda: Bermuda Bribery Act: Waiting in the Wings – Implications for the Insurance Industry

Last Updated: 30 March 2017
Article by Nick Miles

The Bribery Act 2016 received Royal Assent on 6 December 2016. When it comes into operation, it will introduce a number of new offences into Bermuda law, including the corporate offence of failure to prevent bribery. Bermuda insurers, insurance managers and insurance agents and brokers will need to introduce policies and procedures necessary to ensure compliance. The Act will have an unusually extensive extra-territorial reach, making it an offence in Bermuda for certain persons to make or receive bribes anywhere in the world. It is modelled largely on the UK's Bribery Act 2010 and is introduced in readiness for the UK's extension to Bermuda of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention Against Corruption ('UNCAC'), a development that was originally presaged in an announcement by Governor George Fergusson in 2013. The commencement date of the Act is yet to be appointed.

The UK Act, on which the Act is modelled, created uncertainty in the UK regarding the legality of corporate hospitality events. Guidance published by the UK Ministry for justice clarified that it was not intended to prohibit reasonable and proportionate hospitality and promotional expenditure for the purposes of improving the image of a commercial organisation, presenting its products and services, and establishing cordial relations. The 2016 Act has the same potential to raise questions about the legality of some corporate hospitality. The Minister of Legal Affairs is currently consulting on proposed guidance, which must be published on the coming into force of the Act, and which will, it is expected, clarify the ambit of the Act.

Bribing another person and being bribed

Under the Act, a person commits the offence of bribing another person if they offer, promise or give a financial or other advantage to another person intending to induce the 'improper performance' of a public function, business activity, activity performed in the course of employment or activity performed by or on behalf of a body of persons, that a reasonable person in Bermuda would expect to be performed in good faith or impartially or (where the function or activity places the person performing it in a position of trust) in a particular manner or for particular reasons. The function or activity is 'improperly performed' if it is performed in breach of such expectations. 

'Being bribed', which involves a similar test, but adjusted to apply to the recipient, is also an offence.

Bribery of foreign public officials and other related offences

A person commits the offence of bribing a foreign public official if the person offers, promises or gives any financial or other advantage to a foreign public official intending to influence a public official and to gain a business advantage. No offence is committed if the foreign official is required or permitted by written law to take the advantage on offer.

There is no exception for 'facilitation payments', in contrast to the USA's Foreign Corrupt Practices Act.

The Act will also introduce a new offence committed by public officials who fail to report bribery.  These provisions derive from the Isle of Man's Bribery Act 2013.

Failure to prevent bribery

A major innovation of the Act is the new offence of failure of a commercial organisation to prevent bribery. It is committed by a 'relevant commercial organisation' if a person associated with it bribes another person with the intention of obtaining or retaining business for the commercial organisation or to obtain or retain an advantage in the conduct of business for the commercial organisation. A 'relevant commercial organisation' is

  • A body incorporated or formed, or a partnership formed, under the law of Bermuda which carries on business, whether in Bermuda or anywhere else in the world
  • Any other body corporate or partnership, wherever incorporated or formed, which carries on business in Bermuda

A person is associated with a commercial organisation if the person performs services for or on behalf of it, in whatever capacity. It may include an employee, agent  - such as a cover-holder or third party administrator - or a subsidiary company.

A Bermuda company or partnership carrying on business anywhere, or a company or partnership carrying on business in Bermuda, will therefore be guilty of an offence if anyone associated with it bribes a person with the intention of obtaining or retaining business for the company or partnership, or of obtaining or retaining an advantage in the conduct of business for it.

It is a defence for the commercial organisation to prove that it had in place adequate procedures designed to prevent persons associated with it from undertaking such conduct. As noted above, the Minister of Legal Affairs is required to publish guidance for relevant commercial organisations on procedures they can put in place to prevent persons associated with them from bribing. A court shall be required to consider whether the organisation followed any such relevant guidance in determining whether it committed the offence of failing to prevent bribery.  The Minister is currently consulting on the proposed guidance, which will no doubt be published in time for the coming into force of the provisions of the Act.  It would be premature to anticipate the content of the guidance, but it seems likely that it will require organisations to take a risk-based approach, to ensure that their procedures are proportionate to the bribery risks they face, having regard to the nature, scale and complexity of their business, that senior management are properly engaged in the establishment and implementation of procedures and are seen to endorse their objective.  Organisations will no doubt need to develop or continue on-boarding due diligence of existing and new service providers, and in many cases to introduce contractual terms in outsourcing agreements by which service providers warrant that they apply anti-corruption procedures internally that are substantially equivalent to those applied by the organisation.

All of which makes it critical that insurers, insurance managers, insurance agents and brokers begin developing policies and procedures as soon as guidance is published.

Senior officer connivance

The Act also introduces the offence of senior officer connivance, which is committed by a senior officer of a body corporate, or a person purporting to act in that capacity, who consents or connives in the commission of an offence under the Act (other than failure to prevent bribery) by the body corporate.

Territorial application

The territorial reach of the Act varies depending on whether any person whose acts or omissions form part of the offence has a 'close connection with Bermuda'. A person has a close connection with Bermuda, if at the time the relevant acts or omissions take place the person:

  • Had Bermudian status or was a permanent resident of Bermuda
  • Was an individual ordinarily resident in Bermuda
  • Was a body corporate or partnership incorporated, formed or registered under the law of Bermuda

Where a person whose acts or omissions form part of the offence has a close connection with Bermuda, an offence is committed even though none of the constitutive acts or omissions take place in Bermuda.

So, a Bermudian-exempted company which, acting through a director or officer overseas, offers a bribe outside Bermuda, commits offence. Potentially, although perhaps less clearly, an overseas company which, through a Bermudian director, offers a bribe outside Bermuda, commits an offence in Bermuda.

Where no person whose acts or omissions form part of the offence has a close connection with Bermuda, an offence is committed only if any of the constitutive acts or omissions takes place in Bermuda. So, an overseas company or a permit company, not acting through a person with a close connection to Bermuda, commits an offence under the Act only if an act or omission constitutive of the offence takes place in Bermuda.

Comparison with previous legal position in Bermuda

There were already offences under Bermuda law overlapping with offences created by the Act, such as official corruption under Section 111 of the Criminal Code Act, extortion by public officers under section 112 of the Act, corrupt practices (section 392) which applies to inducements or rewards of agents for acts in relation to the agent's principal's affairs, corrupting a holder of judicial office or law enforcement official, corrupting witnesses, corrupting jurors, non-judicial official corruption and judicial corruption.  These offences are superseded by the Act.

It is doubtful that any common law offence of bribery would be recognised in Bermuda (even though such a common law offence was recognised under English common law until the UK Bribery Act 2010 came into force on 1 July 2011), as the Privy Council has held that Bermuda's Criminal Code was intended to replace the common law.

National Anti-Corruption and Bribery Committee and other matters

The Act creates a new National Anti-Corruption and Bribery Committee comprising public officials charged with: advising the Minister generally on the detection and prevention of corruption and bribery; reviewing the operation of the Act; and periodically evaluating the existing legislative and administrative measures in place in Bermuda to combat corruption and bribery. The establishment of the Committee is in conformity with Article 6 of UNCAC.

Proceedings under the Act may only be brought with the consent of the Director for Public Prosecutions. Proceedings for summary offences must be brought within three  years of commission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.