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UK Bribery and the UAE
The UK Bribery Act 2010 and working in the UAE
The Bribery Act 2010 (the “Act”) came into force on1 July 2011and reformed the criminal law in this area to provide a new, modern and comprehensive scheme of bribery offences. It is designed to provide a more effective legal framework to combat bribery in the public and private sectors and help tackle the threat that bribery poses to economic progress and development around the world.
If you are heading to the UAE for a couple of years to live and work or if you are seconding an employee to do so, you may think that the Act won’t affect you or your business.
Beware, however, for the Act has a far-reaching scope and consequences.
Basic offences
The basic offences under the Act are:
- Offering, promising or giving a bribe;
- Requesting, agreeing to receive or accepting a bribe;
- Bribing a foreign public official to obtain or receive business; or
- For commercial organisations, failing to prevent bribery by a person associated with them, i.e. a person acting on their behalf in any capacity, including an agent or employee.
What is bribery?
Bribery means promising or giving a financial or other advantage to a person to induce a person to perform improperly a function of a public nature or an activity which is connected to business, performed in the course of employment or on behalf of a body of persons. That person must be expected to perform the activity in good faith, impartially or be in a position of trust by performing it.
International Scope
The Act has a number of aspects which could apply toUKbusinesses with operations in the UAE orUKworkers in a particular Emirate.
Firstly, the basic offences listed above will be committed regardless of where the act or omission takes place, provided that the culprit has a close connection with theUK. A “close connection” means that they are a British citizen or passport holder,UKresident,UKincorporated body or Scottish partnership.
Secondly, any function or activity which is to be improperly performed in return for a bribe does not need to be connected with or performed in theUK.
Thirdly, the offence of bribing a foreign public official is in itself an international offence.
Lastly, but by no means least, failure to prevent bribery by a commercial organisation is an offence regardless of where the bribery took place and irrespective of the connection with the UK of the person involved.
Bribery of foreign public officials
A person is guilty of such an offence if his intention is to influence an official in his/her capacity as a foreign public official with the intention of obtaining or retaining business or an advantage in the conduct of business. The offence does not cover accepting bribes, only offering, promising or giving bribes, whether directly or indirectly.
A foreign public official is widely defined and would include any person holding a legislative, judicial or administrative position, who exercises a public function, or who is the agent of an international organisation.
The additional requirements for such offences are: that the foreign public official is neither permitted nor required by the written law applicable in his/her country to be influenced in his/her capacity as a foreign public official by the offer, promise or gift; and that the person making the bribe intends to influence the official in the performance of his/her functions, including any failure to exercise those functions and any use of his position, even if he/she does not have authority to use the position in that way.
Organisational liability
An organisation’s failure to prevent bribery by those acting on its behalf is a strict liability offence, i.e. there is no need to prove negligence, guilt or involvement by the “directing mind and will” of the organisation. If an associated person bribes someone to obtain or retain business for the organisation (or an advantage in the conduct of its business), it will be guilty of the offence, unless it can show that has adequate procedures in place in prevent such conduct, on which the Ministry of Justice has published detailed guidance.
If a senior officer or person holding himself out as a senior officer of the organisation consents or connives to the bribery, they are personally liable too. That includes directors, managers, the secretary, and other similar officers.
In conclusion, if you are an organisation with operations in the UAE (or anywhere else), whilst you will need to adhere to local customs, you need to be aware of the importance of compliance with the Act (both legally and morally) and your obligations at home. You should put in place training, policies and procedures for your employees and representatives to avoid inadvertent liability.
Next steps
If you need any advice or further information in relation to the Bribery Act 2010, its applicability to your business and protecting yourself or your organisation from liability, or if you have employment law or other commercial queries please contact us by telephone 44(0)20 7440 2540 or by e-mail on enquiries@fortunelaw.com. or directly on our website www.fortunelaw.com
This briefing note was correct at the time of writing, however it should not be relied on and we disclaim all liability in respect of loss arising from such reliance. We recommend that you take our advice on specific points relating to the above as they arise.
Fortune Law
21 September 2011