1. What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
There are numerous anti-corruption and bribery laws in the United Arab Emirates (UAE). Firstly, the UAE has ratified the United Nations Convention against Corruption (UNCAC) pursuant to Federal Decree Law No. 8 of 2006 (2006 Law). The UAE also signed the Arab Convention to Fight Corruption (the Arab Convention) on the 21 December 2010, which includes 21 Arab Countries, including the UAE.
The UAE has been fighting bribery and corruption since the 1980's with the enactment of Federal law 3/1987 otherwise known as the UAE Federal Penal Code (the Code) and specifically Articles 234-239 of the Code. Federal Decree Law 11/08 (also known as the Federal Human Resources Law also combats bribery.
In Dubai, the above laws are supplemented by the Penal Code of 1970 and Dubai Law 37/2009 on the Procedures for the Recovery of Illegally Obtained Public and Private Funds (Financial Fraud Law).
There are also other laws which have the secondary effect of combatting bribery and corruption and they are:
- Federal Law 4/2002 regarding the Criminalization of Money Laundering;
- The Regulations governing the declarations by travelers entering or leaving the UAE carrying cash or negotiable instruments;
- Federal Law 7/2014, Combating Terrorism Crimes;
- Federal Law 9/2014 amending certain provisions of Federal Law 4/2002 concerning the Combating of Money Laundering Crimes;
- Cabinet Resolution 38/2014, Executive Resolution of Federal Law 4/2002;
- Dubai Law 4/2016 on Financial Crimes.
2. Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?
There are numerous Authorities that have jurisdiction to combat bribery and corruption:
- The Anti-Corruption U nit (known as the Abu Dhabi Accountability Authority) was established in 2015 by Abu Dhabi Law no 14 of 2008 which applies to public sector bodies;
- The State Audit Institution (SAI) which is also for public sector bodies;
- The Central Bank of the UAE has the Anti-Money Laundering and Suspicious Cases Unit;
- The Police Forces of the UAE (jurisdiction restricted to each Emirates jurisdiction);
- The Abu Dhabi Accountability Authority;
- Finally, the only free zone to have their own specific Authority, (apart from the Abu Dhabi Global Market, which is still relatively new and we are not dealing with it here) is the Dubai International Financial Centre (DIFC) which has the Dubai Financial Services Authority;
- Dubai has also passed a law that will allow for the creation of the Dubai Economic Security Centre (DESC) which will focus on bribery and corruption.
3. How is bribery defined?
There is no "set in stone" definition for bribery in a specific law in the UAE, however when one looks the United Nations Convention Against Corruption (UNCAC) which was adopted as per the 2006 Law, specifically Chapter 3, the definition of bribery is defined as being a criminal offence when the following is committed intentionally:
"(a) The promise, offering or giving, to a public official either directly or indirectly, of an undue advantage, for the official himself or another person or entity. In order that the official act or refrain from acting in the exercise of his or her official duties;
(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties."
The Penal Code, supports the above definition.
4. Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is 'public official' defined? Are there different definitions for bribery of a public official and bribery of a private person?
Yes, it does distinguish between bribery of a public official and a public person. Furthermore, there isn't a different definition of bribery for a public official and a private person merely a difference in how bribery can apply to each.
Article 5 of the Penal Code defines a Public Official as follows:
"A public servant shall be defined in the present Law as any person in a federal or local position, whether legislative, executive, administrative or judicial, whether be appointed or elected such as:
- Persons entrusted with public authority and employees of ministries and government departments;
- Members of the military forces;
- Employees of security bodies;
- Members of the judiciary, chairmen and members of legislative, advisory and municipal boards;
- Any person assigned to a certain task by a public authority, to the extent of the delegated task;
- Chairmen and members of boards of directors, directors and other employees of public authorities and institutions, as well as companies owned, wholly or partially by the Federal Government or local governments;
- Chairmen and members of the boards of directors, directors and other employees of societies and associations of public welfare.
Public servants shall be deemed by the present law as any person who is not included within the categories set forth in preceding clauses. Any person engaged in the work of public service as assigned to him by a public servant in charge under laws or regulations with respect to the assigned task."
Article 236 bis (1) of the code deals with the offence of accepting a bribe as a public official as follows:
"Any person who administers an entity or establishment that pertains to the public sector, or is employed by either one of whatever capacity, who requests, accepts, either directly or indirectly, a gift, benefit or a grant that is not due, or is promised of the same, and, whether to the benefit of himself or another person, in order for such person to commit or omit an act that is included in his duties, even if he has intended not to fulfil or omit such act, or if the request, offer or promise is made after the fulfilment or omission of such act, shall be sentenced to imprisonment for no more than five years.
In the private sector, article 236 bis (2) deals with the offences of accepting a bribe in the private sector and states the following:
"Any person who promises another person managing an entity or establishment of the private sector, or who is employed by him in any capacity, with a gift, benefit or grant that is not due, or who offers or grants the same, either directly or indirectly, whether to the benefit of the person himself or for another person, in order for that person to perform or to omit an act that is included in his duties or constitutes a violation thereof, shall be sentenced to imprisonment for no more than five years."
5. What are the civil consequences of bribery in your jurisdiction?
The aggrieved party may sue the offenders for any losses sustained. This is the only civil consequence of bribery in this jurisdiction. An example of this would be if "A" was awarded a contract from "B" but "B" was later bribed by "C" to give the contract to him and cancel any arrangement with "A." In such cases, "A" could sue both "B" and "C" and the respective organisations they may represent for damages.
What is beneficial here is that there is no prescription for a claim against bribery. Article 239 bis 2 of the code states as follows:
"A criminal lawsuit shall not be terminated by lapse of time limitation in any of the crimes set forth in this Chapter, and the punishment imposed shall not be extinguished. Moreover, civil actions either arising or related thereto shall not be terminated by the lapse of time limitation." "A" could also file charges and request fines, however these fall under criminal sanctions.
6. What are the criminal consequences of bribery in your jurisdiction?
It varies depending on the offence and who committed the offence but can range from a fine that can be equal to the bribe or AED 5,000.00 if greater, to imprisonment of up to fifteen years. The code tends to treat the accepter of the bribe far more harshly than the person who orchestrated the bribe.
The above said, there are also fines and imprisonment for the person who orchestrated the bribe and the offender who offered the bribe.
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.