ANTI-CORRUPTION
REGULATIONS
THE MIDDLE EAST
LEGAL GUIDE
FIRST EDITION
MAY 2018
Contents
page
02 Preface
03 Introduction
04 The Kingdom of Bahrain
08 Arab Republic of Egypt
12 Iraq
16 Hashemite Kingdom of Jordan
23 Kuwait
29 Lebanon
33 Oman
41 The State of Qatar
46 The Kingdom of Saudi Arabia
52 United Arab Emirates
59 Contacts
The contents of this publication, current as at May 2018 set out above, are for reference purposes only. They do not constitute legal
advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought
separately before taking any action based on this publication.
© Herbert Smith Freehills LLP 2018
02
HERBERT SMITH FREEHILLS
Preface
Welcome to the first edition of our
Anti-Corruption Regulation Legal Guide
for the Middle East.
We are delighted to launch this publication, which presents the
legislative framework regulating bribery and corruption across a
range of Middle East jurisdictions, drawing upon the combined
knowledge and experience of our lawyers, as well as qualified
and experienced counsel in each of the jurisdictions covered.
We understand this guide to be unique in terms of scope and
content.
As Middle East countries continue to introduce new laws,
regulations and initiatives to help in the fight against bribery and
corruption, we hope you find this guide both timely and useful.
We extend our warmest thanks to all of our contributors as well
as our own lawyers for their extensive work on this guide.
Contact details can be found at the end of each chapter.
We look forward to answering any questions you may have.
Preface
Kyle Wombolt
Partner, Global Head of Corporate Crime
and Investigations
T +852 2101 4005
Stuart Paterson
Partner
T +971 4 428 6308
Benjamin Hopps
Senior Associate
T +971 4 428 6369
Introduction
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
03
Introduction
The Middle East region presents various
anti-corruption challenges for businesses.
These include the difficulty in identifying
politically exposed persons, the prevalence
of intermediaries in the conduct of business
relationships and the widespread difficulty
in accessing company ownership and
financial records.
and businessmen stretching back decades. It is reported that
many of those concerned have paid many billions of US dollars
by way of compensation or to retain their freedom.
All the jurisdictions in this guide have in place laws regulating
bribery and corruption activities which often carry with them
severe financial and penal punishments.
It is therefore essential for companies and individuals currently
operating (or those who would like to operate) in the Middle
East to have knowledge of anti-bribery and corruption (ABC)
offences.
Combined with this, the enforcement environment is tightening,
with legislation such as the US Foreign Corrupt Practices Act
and the UK Bribery Act representing key tools for punishing
corrupt activity.
Each chapter in this guide focuses on a different Middle East
jurisdiction and explains how the legislative framework
regulating bribery and corruption activities operates, including
the powers of local law enforcement and regulators to
investigate and prosecute offenders, the sanctions that can be
imposed, and a summary of what is on the anti-bribery and
corruption horizon.
What many companies doing business in the Middle East may
not appreciate is the extent of domestic anti-corruption
legislation and how those laws are applied in practice.
Enforcement activity is on the increase.
For example, the Saudi Arabian authorities are, at the time of
writing, implementing a substantial investigation into alleged
corruption by a large number of prominent Saudi public officials
ITA
L
Y
04
HERBERT SMITH FREEHILLS
The Kingdom of Bahrain
SPAIN
TURKEY
TUNISIA
LEBANON
SYRIA
The Kingdom
of Bahrain
C
CO
O
ISRAEL
IRAQ
R
O
IRAN
M
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
QATAR
THE KINGDOM
OF BAHRAIN
SAUDI
ARABIA
UAE
OMAN
MALI
NIGER
YEMEN
SUDAN
CHAD
ERITREA
THE LAW
1. What is the source of:
DJIBOUTI
BURKINA
FASO
REPUBLIC OF
SOMALILAND
ABC legislation and regulations?
after having completed doing the act, or omitting to do such
act, in violation of the duties of their office, or in relation to
corporations, in a manner detrimental to the interests of the
employer or private corporate entity.
NIGERIA
•• Articles 186-193 of the Bahrain Penal Code, promulgated by
Decree Law No.15/1976, as amended by Law No.1/2013 (the
“Penal Code” or the “Law”), cover the offence of bribery in
relation to civil servants. Articles 417-427 of the Amendment to
the Penal Code (Law No.1/2013) cover the offence of bribery in
the private sector.
•• In early 2014, eight Bahraini officials were suspended in
connection with 25 major corruption cases under investigation
following National Audit Office report revelations. These
include 13 violations at the Municipalities and Urban Planning
Affairs Ministry, seven at Alba and one each at the Bahrain
Flour Mills Company, the Bahrain Chamber for Dispute
Resolution (BCDR-AAA), Bapco, the Works Ministry and the
Housing Ministry.
N
UGA
•• Bahrain has also signed and ratified the United Nations
Convention against Corruption in Law (“UNCAC”), which has
been implemented under Law No.7/2010. As UNCAC is mainly
directive in nature, the anti-bribery provisions of the Penal Code
are the main points of reference in investigations and
prosecutions relating to bribery and corruption.
•• As of 21 January 2015, the Public Prosecution Office had received
36 corruption-related cases: 10 of these cases were referred to
the Criminal Court for criminal prosecution, 12 were reserved for
no further action and 14 cases are still pending investigation.
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
•• Local law/regulations do not provide guidance in respect of
specific categories of bribes, rather the law provides provisions
broadly prohibiting any bribes made in the form of substantial
gifts or privileges of any kind whatsoever or a promise to be given the
same.
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
ZAMBIA
ZIMBABWE
2. What constitutes an ABC offence in Bahrain?
•• The Penal Code provides for one mitigating factor, which is
where a partner reports the offence to the judicial authorities or
admits it before reference of the case to the court, the judge may
exempt him from punishment, if such course of action
is justified.
•• The Penal Code criminalises bribery of civil servants entrusted
with a public service as well as workers in private corporations.
It is an offence to receive or offer gifts or privileges to a civil
servant, company employee, board member or corporate
trustee of a private corporate entity, as consideration for doing
an act or omitting to do an act involved in his duties. It is also an
offence to promise to give a gift or privilege of any kind in
consideration of performing certain work or abstaining from
•• Although the law does not entail monetary thresholds in respect
of bribes, but criminalises bribery per se, the considerations
which will be taken into account are the connection between the
bribe, in whatever form offered or requested, and the action or
performing the same, in breach of ones duties or in a manner
detrimental to the interests of the employer or private
corporate entity.
omission expected or offered in return. In respect of events, the
relation between the subject matter of the event and the
person’s specialisation, whether in public office or a private
company, and whether such are related or not, will
be considered.
•• It is immaterial whether the official, employee, board member
or corporate trustee actually intends to perform or abstain from
performing the act in question, and whether the act or omission
does not constitute part of his duties. This is the case even if
he/she has alleged or wrongly believed it to be part of their
duties, and whether the bribe has been demanded or offered
D
A
TOGO
ETHIOPIA
R
E
P
U
B
LIC OF
SOUTH
SUDAN
GHANA
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
A
EQUATORIAL GUINEA
RWANDA
SEYCHELLES
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMOROS
M
O
Z
A
M
MADAG
A
S
C
A
R
MAURITIUS
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
05
The Kingdom of Bahrain
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
•• The law does not specifically provide a limit on gifts offered or
accepted. A gift of “modest value” may be permitted. For
example, seasonal inexpensive gifts such as calendars and
diaries can be given without concern. Further, gifts of modest
value such as pen sets, company plaques, etc, particularly if they
bear the donor’s name or logo, are customary and acceptable.
However, other gifts which are offered individually may give rise
to the appearance of impropriety and thus contravene the
anti-bribery provisions.
•• There are no specific provisions under Bahrain law that
prohibit making charitable donations. So long as such
donations are not “facilitation payments” and that nothing is
being received in return for the donation, then this may be
permissible. In the event of such donation being asked for,
accepted or offered in exchange of some favour, it may be
considered a bribe under the Penal Code, and thus constitute
an offence thereunder.
•• Travel and reasonable related expenses which are related to the
invitees' specialisation may be permitted, so long as no favour is
being received or expected to be received in return. Also, it is
customary that meals and hospitality may be provided when, for
example, an official is visiting the donor’s facility.
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• The Penal Code does not provide a definition of “gift”, and the
•• Yes. The offence of bribery has recently been extended by the
Penal Code to cover the private sector, meaning the persons
subject to anti-bribery laws shall include: (a) workers who are
defined as every natural person employed for a wage of any kind
and under the employer’s management and supervision; (b)
every person who does or works or provides a service in any
capacity without being under the management and supervision
of the person for whom he performs the work or service; (c)
private corporate persons; and (d) board of directors, board of
trustees, chairmen, deputy chairmen and all members of the
board irrespective of designation or formation.
term is regarded rather generally. Moreover, the offence of
bribery is covered by offering or accepting gifts and privileges,
which allows for a wide interpretation of the term. Thus, gifts
and lavish lunches and entertainment should be avoided as such
may give rise to suspicion of intention to influence a favourable
decision, in which case it may be considered to fall within the
context of the bribery provisions of the Penal Code.
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
•• There are no specific provisions in the law prohibiting
“facilitation payments” as such; however, they may fall within
the general definition of bribery.
•• The Penal Code provides a definition for civil servants only,
who are entrusted with a public service, as: (a) persons in a
position of authority, staff or government ministries,
departments and local administrative units; (b) the armed
forces personnel and servicemen; (c) members of councils
and public representative units (whether elected or
nominated); (d) every person authorised by a public authority
to perform a particular task to the extent of the duties
entrusted; (e) chairman or members of board of directors,
managers and all staff of public institutions and organisations;
and (f) chairmen and members of boards of directors,
managers and staff of units belonging to public institutions
and organisations. Term and nature of the relevant
employment as well as remuneration do not have any bearing
on the offence of bribery.
•• Article 32 of Decree Law No.36/2002, in respect of Tenders and
Government Procurement, requires that a tender be refused in
the event of the tendering party offering a bribe or inducement of
any kind to an employee of the procuring entity or any other
governmental authority, even if the tender application has
satisfied all the necessary prerequisites and requirements. In this
context, there may be Penal Code implications in respect of both
the party offering the bribe and the party asking for or accepting
it, in both the public and private sectors.
11. Would members of the Bahraini royal family
be considered public officials by virtue of the
fact that they are members of the royal family?
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
•• No.
12. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• Yes. The offence of bribery covers offering gifts or privileges or
promises of the same in consideration of an act or omission
involved in the duties of the officer or employee whether such
bribe is accepted by himself or another person acting on his behalf.
•• Such regulations are issued internally in the context of execution
of the provisions of the law.
06
HERBERT SMITH FREEHILLS
The Kingdom of Bahrain
13. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
any suspicious activities in this respect, and report the same to the
Public Prosecution Office. The NAO has the authority to oblige the
relevant authorities/companies to cooperate.
•• In addition to this, please see our response to question 16.
•• No; however, it may be viewed that it is considered as part of the
civil servant or employee’s job to report such incidents to his
supervisor or the relevant authorities.
19. What are the powers of arrest and detention
of the relevant authorities?
•• Powers of arrest and detention are exercised through the Public
Prosecution Office.
14. Do the domestic ABC regulations have
extra-territorial effect? (Is bribery of foreign
public officials prohibited?)
20. What is the jurisdictional reach of these
powers?
•• Domestic ABC regulations will not apply outside the jurisdiction
of Bahrain. There are no discrete provisions relating to the
bribery of a foreign public official.
•• Jurisdiction is limited to the Kingdom of Bahrain.
•• If, however, a Bahraini citizen commits an offence under the
Penal Code whilst abroad, he/she may be prosecuted on
return to Bahrain even if he/she is punishable under the law of
the country in which they have committed the offence and
even if he/she lost or acquired Bahraini nationality after
committing the offence.
REGULATION OF ACTIVITIES
15. What are the main bodies responsible for
investigating and combating bribery and
corruption, in Bahrain?
•• The Public Prosecution Office
•• The National Audit Office (the NAO)
21. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
•• The Anti-Corruption Directorate of the General Directorate of
Anti-corruption and Economic and Electronic Security
16. What does each of these authorities
investigate?
•• Yes. The general legal principle is that the Executive Authority
shall obey the Judiciary, and as the Public Prosecution Office is a
part of the Judiciary, the Executive’s cooperation shall be
extended to it. Further, it is usual that governmental authorities
are extended a certain degree of cooperation.
•• The Public Prosecution Office prosecutes all criminal cases. The
National Audit Office (the NAO) is a non-governmental
organisation which independently investigates suspicious
activities and reports its findings to the Public Prosecution
Office for prosecution. A report is submitted annually to the
King of Bahrain and the latest report was submitted on
30 December 2014. The National Audit Office is very active and
investigates all ministries, government agencies and companies
owned by the Bahraini Government. It prepares an annual
report, which is presented to the King of Bahrain. The last report
was submitted on 3 December 2017 for the year 2016-17.
22. How do the relevant regulatory authorities
interact with overseas regulators?
•• Bahrain is strict in applying ABC laws and is cooperative with
overseas regulators.
23. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
•• The Anti-Corruption Directorate of the General Directorate of
Anti-corruption and Economic and Electronic Security
(“Anti-Corruption Directorate”) is responsible for investigation
and prosecution of offences related to corruption.
•• The Penal Code requires confidentiality of investigations,
especially in the context of not obstructing the course of justice;
however, making the subject of a complaint or case public will
not suffice to trigger confidentiality implications. Furthermore,
the Bahrain courts are open to the public and as such any
individual may attend any court hearing and thus be privy to
such information if so presented in the court.
17. Do the authorities described above have the
same powers of investigation?
•• No. Refer to our response to question 16.
24. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
18. What actions may these bodies take in
exercising their functions?
•• Yes. Information discovered in a criminal investigation may be
used in a court of law to prosecute the offender, and may also be
•• Criminal Investigations and the Anti-Corruption Directorate will
mainly be done through the Public Prosecution Office, which has
used in related civil proceedings (excluding negligence).
the power to prosecute, investigate and collect and confiscate
relevant evidence in crimes which have been detected, as well as
question relevant individuals (suspects, witnesses, etc), request
experts to report on certain issues, and detain suspects.
•• The NAO has authority over all ministries and governmental
authorities and organisations as well as the Cabinet and Parliament
and Bahraini companies (among others), and it has authority under
Decree Law No.16/2002 to audit, investigate, inspect and review
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
07
The Kingdom of Bahrain
25. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
28. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• No, this is very unlikely, as Bahrain strictly applies ABC laws.
29. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
•• Yes. Under Article 20 of the Constitution of the Kingdom of
Bahrain, an accused person is innocent until proven guilty in a
legal trial and has the right to defence at all stages of the
investigation and trial. This includes, amongst other things, the
accused’s right to a lawyer to defend him with his consent and
his right against self-incrimination. Article 29 of the Legal
Practice Act covers legal professional privilege and prohibits a
lawyer, who acquires in the course of his practice, knowledge of
any incident or information, from disclosing it even after the
expiry of his appointment as attorney, unless divulging such
information is intended to prevent a crime or misdemeanour or
report the occurrence thereof. Article 29 further stipulates that
a lawyer may not be asked to testify in respect of any dispute for
which he has been appointed as attorney or asked to give advice
•• The law does not provide guidance in this respect; however, any
gift or privilege offered or accepted in exchange for a favour,
regardless of it being reported to the supervisor or not, may
trigger the provisions of the Penal Code in respect of bribes.
with regard thereto without the client’s prior written consent.
30. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state, which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
SANCTIONS FOR WRONGDOING
26. What disciplinary sanctions/sentences may
these authorities impose?
•• The law does not provide guidance in this respect. Please refer
to our response to question 29.
•• A civil servant, employee, board member or corporate trustee
who asks for or accepts for himself or others a bribe for acting or
omitting to act in relation to his duties shall be liable for a term of
imprisonment not exceeding 10 years. In respect of civil
servants, this is reduced to a maximum of five years’
imprisonment in the event the civil servant demanding or
accepting the bribe has promised to do an act, or omit to do an
act, not constituting part of his duties, but had wrongly alleged
or believed it to be so. Moreover, offering a bribe to an
employee, board member or corporate trustee is also punishable
by imprisonment not exceeding a term of 10 years. However,
offering the same to an official in the public sector is punishable
by imprisonment limited to a maximum term of three years.
31. Are there provisions for defendants to appeal
against any enforcement action/prosecution
taken against them?
•• Appeals in this regard may be done through the ordinary course
of the criminal courts, ie by making applications to the Public
Prosecution Office or Court requesting release for bail or
appealing decisions rendered by the Court. Please refer to our
response to question 3.
REFORMS
32. Are there likely to be any significant reforms
in Bahrain in the near future?
•• Further, apart from confiscation of the bribe, fines shall also
apply to offenders, equivalent to the amount of the bribe
requested, accepted, promised or offered, subject to a minimum
fine of BD 100 in the public sector and a minimum of BD500
capped at BD10,000 in the private sector.
•• We are unaware of any reforms underway in respect of ABC laws.
Authors
27. Do the relevant authorities have powers to
freeze properties which may be proceeds of an
ABC offence pending conclusion of their
investigation?
Zu’bi & Partners Attorneys & Legal Consultants
Qays H. Zu’bi
•• Yes, apart from the penalties described in question 26 above,
the Penal Code provides for the confiscation of assets obtained
by bribery.
Noor Al Taraif
GBCorp Tower, 16th floor, Building 1411
Road 4626, Block 346, Bahrain Financial Harbour District
PO Box 2397, Manama
Kingdom of Bahrain
T +973 17 538 600
F +973 17 532 342
www.zubipartners.com
08
HERBERT SMITH FREEHILLS
ITA
L
Y
Arab Republic of Egypt
SPAIN
TURKEY
Arab Republic
of Egypt
TUNISIA
LEBANON
SYRIA
C
CO
O
ISRAEL
IRAQ
R
O
M
ALGERIA
JORDAN
WESTERN
SAHARA
KUWA
LIBYA
EGYPT
The Arab Republic of Egypt does not have
specific ABC legislation. The sources of law
relating to anti-bribery and corruption are
contained in a number of laws, primarily in the
Egyptian Penal Code.
SAUD
ARAB
MAURITANIA
MALI
NIGER
Y
SUDAN
CHAD
SENEGAL
ERITREA
GAMBIA
THE LAW
1. What is the source of:
BURKINA
FASO
GUINEA
ABC legislation and regulations?
•• Article 14(2) of Law No.106/2013 allows a maximum gift
value of LE300 (equivalent to c. USD38) to be paid to
government ministers.
NIGERIA
•• The Egyptian Penal Code (the “EPC”)
•• The Illicit Revenue Law
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
•• Any gift/entertainment/advantage which is not deliberately
meant to incite the recipient to act against their duties as an
employee/official should be acceptable. However, the burden of
proof is on the offeror to establish this.
N
UGA
•• Articles 103-111 of the EPC
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• Article 77 of the State’s Civil Servant Law
•• Article 44 of the Public Sector Employees Law
•• The Civil Servant Law No.81/2016 (the “Civil Servant Law”)
•• Any gift/entertainment/advantage which is deliberately meant
to incite the recipient to act against his duties as an employee/
official will be unacceptable.
2. What constitutes an ABC offence in the Arab
Republic of Egypt?
•• Under the EPC, any promise or gratuity is considered a bribe.
Due to this very broad definition, any gifts or hospitality are
typically seen as bribes and expose their giver, receiver, any
intermediary and offeror to sanctions.
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
ZAMBIA
•• Gifts or hospitality given for purposes other than to incite
the recipient to act against his/her duties shall not be
considered bribes.
ZIMBABWE
•• So long as such payments are not given to deliberately make the
recipient act against his/her duties, they will not be considered
bribes. However, the burden of proof is on the offeror, and there is a
presumption of bribery as a result of the shift in the burden
of proof.
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
•• Although strictly speaking, gifts or hospitality given for purposes
other than to incite the recipient to act against his/her duties will
not be considered bribes, the broadness of the bribery
legislation dictates that any gift or hospitality provided,
especially to government officials or public servants, will de facto
be considered as bribery, and the burden of proof will be on the
parties involved to prove the contrary.
•• Yes. Any gift/entertainment/advantage given to deliberately
incite an employee/official to act against his/her duties will be
considered a bribe, regardless of who it is given to.
D
A
TOGO
SIERRA
LEONE
CÔTE
D'IVOIRE
ETHIOPIA
R
E
P
U
B
LIC OF
SOUTH
SUDAN
GHANA
LIBERIA
CENTRAL AFRICAN
REPUBLIC
CAMEROON
EQUATORIAL GUINEA
SÃO TOMÉ AND PRÍNCIPE
S
RWANDA
TANZANIA
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
SWAZILAND
SOUTH
AFRICA
M
A
LAWI
M
O
Z
A
M
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
09
Arab Republic of Egypt
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)–connected
local charities?
there is a general obligation in Article 26 of the Code of Criminal
Procedure that all public employees who witness a crime in the
course of their employment must report it directly to the Public
Prosecution Office or the nearest police officer.
•• There are no specific provisions.
13. Do the domestic anti-corruption regulations
have extra-territorial effect? (Is bribery of
foreign public officials prohibited?)
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• Bribery of foreign public officials is not specifically regulated
under Egyptian law.
•• Under Article 103 of the EPC, bribery laws apply to all public
individuals as well as the board members of joint stock companies
and managers and employees of foundations, companies,
associations, organisations and establishments if an administrative
authority contributes to its capital in any manner. The EPC is silent
on whether bribery laws apply to the private sector.
•• Offences committed on Egyptian territory are punishable under
the EPC, irrespective of nationality. Individuals can also be
prosecuted for crimes if they commit an action abroad that
makes them a perpetrator or an accomplice to a crime that took
place in Egypt.
•• An Egyptian citizen who commits an offence under the EPC and
the law of the country in which the crime was committed will be
subject to the sanctions found in the EPC upon his return to Egypt.
10. What is the definition of a public body?
Would it include persons working in state–
owned/ controlled companies? Who is a public/
civil servant?
REGULATION OF ACTIVITIES
14. What are the main bodies responsible for
investigating and combating ABC in Egypt?
•• Public bodies are mentioned as a category of juridical persons
under the Egyptian Civil Code (“ECC”). The ECC provides that the
state, governorates, cities and communities are considered
juridical persons, as provided for by law. Further, public
establishments (including public bodies and authorities) are also
considered juridical persons as provided for by law (or case law in
some instances). Therefore, a public body is considered as such on
a case-by-case and by operation of law. State-owned and/or
state-controlled companies and banks may also be considered as
public bodies, in accordance with the laws of their establishment.
•• There is no specific agency responsible for investigating and
prosecuting bribery and corruption. The Public Prosecution
Office has general jurisdiction over all crimes; however, the
following authorities play a role in discovering and investigating
corruption crimes:
•• As a matter of scope of application, the following persons have
the status of a public employee (and would be covered by the
bribery laws):
persons working for any authority affiliated with the
Government or under its supervision;
The Central Audit Authority;
the Illicit Revenue Body;
the Administrative Control Agency;
the Administrative Prosecution; and
the Work group for the Coordination between National and
foreign entities for recovering smuggled Egyptian assets
abroad (the “WCON Group”).
members of local or general government councils, whether
appointed or elected;
15. What does each of these authorities
investigate?
judiciary, Ministry of Justice experts, public prosecutors,
liquidators and receivers;
•• The Central Audit Authority supervises public spending and mainly
conducts audits and inspections of the affairs of public authorities.
all persons entrusted with a public service; and
members of boards of directors, managers and employees of
any associations, companies, organisations and entities of
which the Government is a shareholder or for which the
Government provides funding.
•• The Illicit Revenue Body is responsible for the inspection and
investigation of the financial affairs of public officers.
•• The Administrative Control Agency detects administrative and
financial violations and crimes which are committed by public
employees in the course of, or as a result of, the performance of
their duties.
11. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• The Administrative Prosecution undertakes the required
supervision and controls to detect financial and administrative
violations of public employees.
•• We are not aware of any codes of conduct, guidance or internal
regulations being issued or promulgated by ministries and/or
governmental departments.
•• The WCON Group has the power to, amongst other things:
set and monitor the execution of plans for recovering
smuggled assets abroad;
12. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
identify and try to remove any legal obstacles hindering the
requests submitted to foreign governments for retrieving the
smuggled assets; and
•• There are no direct obligations imposed on individuals to
disclose suspected corruption within an organisation. However,
10
HERBERT SMITH FREEHILLS
Arab Republic of Egypt
eliminate any internal obstacles facing investigation and
auditing entities in respect of the smuggled assets.
21. How do the relevant regulatory authorities
interact with overseas regulators?
The WCON Group has not yet produced any tangible results.
16. Do the authorities described above have the
same powers of investigation?
•• Through arrangements provided for under bilateral or
multilateral treaties, or through diplomatic measures. An
example of such a treaty is the Treaty on Legal and Judicial
Cooperation between the State of the United Arab Emirates and
the Arab Republic of Egypt – Federal Decree No.83/2000.
•• The Central Audit Authority: This authority is an information
gathering body, rather than an investigatory authority. It
provides comprehensive reports in respect of the entity in which
a contravention occurred. As such, it may obtain copies of any
documents that would assist in preparing its reports.
•• There are certain articles from the United Nations Convention
against Corruption (“UNCAC”) that have been incorporated into
Egyptian law. For instance, Article 11 in the UNCAC Code is found
in Article 72 of the Egyptian Judicial Authority Law No. 46/1972.
•• The Illicit Revenue Body: This body receives complaints
and gathers information. It may request entities to provide
the required information for assisting in reviewing
the complaints.
22. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
•• The Administrative Control Agency: This agency provides
reports to the Public Prosecution Office and it may request
the Public Prosecution Office issues an order allowing the
authority to perform recordings/surveillance and trace the
•• The EPC provides that all investigations should be carried out
confidentially for the interest of the investigation process itself
until the whole case is referred to the relevant court for the
crime in progress.
purpose of hearing the matter. Documents referred to the court
remain confidential save as to the legal representatives of the
relevant parties.
•• The Administrative Prosecution: This body concludes
administrative investigations and imposes administrative sanctions.
17. What actions may these bodies take in
exercising their functions?
23. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
•• They may obtain documents from the entities in which the crime
was committed;
•• Yes.
•• they may carry out investigations about the relevant crime; and
•• they may request the Public Prosecution Office to allow them to
carry out procedures for the purpose of acquiring relevant
evidence (for example, recordings, inspection, phone tapping
and surveillance).
24. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
18. What are the powers of arrest and detention
of the relevant authorities?
•• There is a right to legal representation at interviews.
•• Only the Administrative Control Agency and the Illicit Revenue
Body has the right to temporarily detain the accused in the manner
prescribed under the EPC for the purposes of interrogation.
•• A witness may also refrain from testifying against an accused
relative up to his/her second degree of kinship. This includes
spouses and ex-spouses.
19. What is the jurisdictional reach of these
powers?
•• There is a general right for the accused to remain silent whilst
responding to allegations against them.
•• The principles of territoriality and state sovereignty do not allow
for the application of any of the above-mentioned powers
overseas. However, the EPC sets out specific circumstances in
which international jurisdiction could be attributed to the
relevant authorities and would be executed upon the return of
the accused to Egypt.
SANCTIONS FOR WRONGDOING
25. What disciplinary sanctions/sentences may
these authorities impose?
•• The Civil Servants Law No.47/1978 and the Public Sector
Employees Law No.48/1978 provide for disciplinary sanctions,
such as warnings, deduction from salaries and dismissal, to be
imposed in the event of a breach of Article 77 of the Civil
Servants Law.
20. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
•• Theoretically, the police/local authorities should assist the
relevant regulatory entity in their investigation and any attempts
to gather relevant information. In practice, however, the police or
local authorities do not usually get involved.
26. Do the relevant authorities have powers to
freeze properties which may be proceeds of an
ABC offence pending conclusion of their
investigation?
•• Yes, but only insofar as is necessary to protect the investigation.
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
11
Arab Republic of Egypt
27. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
RECENT DEVELOPMENTS
33. Have there been any recent high-profile
bribery/corruption scandals, allegations or
prosecutions in Egypt?
•• The Civil Servant Law provides for disciplinary sanctions
including warnings, deductions from salaries and dismissal in
the event of a breach of Articles 57 and 58.
28. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
•• The circumstances would still have to pass the test provided
by law.
•• In June 2011, there was a bribery case which became known as
the “Mercedes case”. It involved a chairman of a company and
his wife who were accused of accepting and receiving bribes.
The company was a subsidiary of the Arab Organization for
Industrialization, a state-run company affiliated with the
Egyptian Armed Forces. The purpose of the bribes was to
facilitate the company’s business dealings in Egypt. The
defendants were referred to the Supreme Military Court in
Egypt, where the chairman was sentenced to two years in prison
and his wife was given a suspended prison sentence of one year
along with a fine of LE2.72 million.
29. In practice, is it possible to obtain a written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
•• Nothing bars the above actions or the public entity’s ability to
provide acknowledgement. However, practically, this would not
occur. Any statement of a supervisor’s awareness would not
waive liability for bribery but may be used to prove the
accused’s innocence.
30. Are there provisions for defendants to
appeal against any enforcement action/
prosecution taken against them?
•• Under Egyptian law, the right to appeal a lower body’s decision
is guaranteed.
REFORMS
31. Are there likely to be any significant reforms
in the Arab Republic of Egypt in the near future?
•• There are likely to be significant reforms in the near future in
ABC laws. General suspicion of bribery and corruption by public
officials was one of the social and administrative problems
which contributed to the January 25 Revolution in Egypt. Major
legal reform is expected in many sectors of Egyptian legislation.
For example, Law No.106/2013 was introduced to address the
issue of avoiding conflicts of interest and bribery.
Authors
•• Furthermore, significant constitutional reform is also expected.
Shalakany
PUBLIC PROCUREMENT
32. Are there any procurement laws/rules in
Egypt that refer to bribery/corruption?
Dr. Khaled El Shalakany
•• There is a Procurement Law (No.89/1998) which was inspired
Adam Khaled El Shalakany
by the UNCITRAL Model Law on Procurement of Goods,
Construction and Services. This Law forces procurement to go
through the process of bids, and as such bidders have the right
to challenge procurement decisions in court.
12 El Marashly St., Zamalek,
Cairo 11211, Egypt
T +202 2 728 8888
F +202 2 737 0661
www.shalakany.com
GERMANY
12
HERBERT SMITH FREEHILLS
Iraq
FRANCE
ITA
L
Y
Iraq
SPAIN
TURKEY
TUNISIA
LEBANON
SYRIA
C
CO
R
O
Iraq does not have specific anti-bribery
legislation. The sources of law relating to
anti-bribery and corruption are contained in a
number of laws, primarily in the Iraqi Penal Code
and the Disciplinary Law.
IRAQ
O
ISRAEL
IRAQ
IRAN
M
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
QATAR
SAUDI
ARABIA
UAE
OMAN
THE LAW
1. What is the source of:
MALI
2. What constitutes an ABC offence in Iraq?
NIGER
ABC legislation and regulations?
YEMEN
•• There are three principal offences under the Penal Code
SUDAN
CHAD
ERITREA
•• The Iraqi Penal Code Law No.111/1969 (the “Penal Code”)
governs corruption and bribery in Iraq.
•• The Civil Servants Disciplinary Law No.14/1991 (the
“Disciplinary Law”) very broadly defines a civil servant (for the
purposes of that legislation) as: “Every individual assigned/
entrusted with a post/job within the ministry's staff or a body that is
not connected to a ministry.”
(Article 307):
The seeking or acceptance of a gift, benefit or promise by a
public official in return for carrying out, refraining from, or
breaching an employment duty;
the giving, offering or promising of a gift, benefit or promise to
a public official in return for carrying out, refraining from, or
breaching an employment duty; and
acting as an intermediary between a public official and a
person offering a gift, benefit or promise to that public official
in return for carrying out, refraining from, or breaching an
employment duty.
DJIBOUTI
BURKINA
FASO
REPUBLIC
SOMALILA
NIGERIA
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
N
UGA
•• There is no such guidance in Iraqi law. This is most probably due
to the fact that corporate entertaining for business purposes has
not yet developed to the same extent as in other parts of the
Middle East.
•• Article 5 of the Disciplinary Law states that:
“The employee is prohibited from doing the following: …Borrowing
or accepting a gift or present or benefit from the clients or
contractors or entrepreneur related to his/her work or from anyone
that may have a relationship with the employee because of his job.”
•• Neither the Disciplinary Law nor the Penal Code contain a value
description (ie an amount for a threshold payment) in relation
to hospitality or entertainment. The Penal Code does not
specify a value when considering what constitutes a bribe. A
bribe could be anything (even of nominal value) that is sought
or accepted by a public official. Instead, the Penal Code
criminalises the “intent” associated with the transmittance of
the item or amount.
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
ZAMBIA
•• Therefore, it is advisable that any gift to a public official be part
of the broad and indiscriminate promotion of a business. For
example, pens, stationery sets and bags are all acceptable gifts
if given without the intent to bribe and given indiscriminately
among potential government clients.
ZIMBABWE
•• In terms of travel and sponsored events for government
employees, there is also no standard regulation or rule. In
•• There is no de minimis exception in Iraq. Instead, the intent to
procure the benefit through a bribe is what is criminalised. It is
difficult to predict what considerations may be taken into account
in the decision to prosecute. There may very well be factors which
touch on the political and partisan party issues which affect the
practice, the amount of hotel and per diem expenses can be
decisions to instigate an investigation and/or to prosecute.
agreed with a ministry ahead of a scheduled visit. Private
companies should ensure that government employees only
attend training outside of Iraq where there is a requirement for
them to do so and it is relevant to their role.
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
•• Any indiscriminate and broad promotional give-away will be
considered acceptable. Even though there is no relevant
value threshold, the transferring of low-value items to a
broad range of members of the public and private
D
A
TOGO
CÔTE
D'IVOIRE
ETHIOPIA
R
E
P
U
B
LIC OF
SOUTH
SUDAN
GHANA
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
A
EQUATORIAL GUINEA
SÃO TOMÉ AND PRÍNCIPE
RWANDA
SEYCHELL
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMOROS
M
O
Z
A
M
MADAG
A
S
C
A
R
MAURITI
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
13
Iraq
community (such as stationery sets, bags, calendars, etc)
will carry no adverse consequences.
11. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• Neither the Government of Iraq, nor any specific ministries,
issue internal regulations concerning bribery. Instead, the matter
is governed by the Penal Code as set out at paragraph 1 above.
•• Any large direct gift or action taken specific to a public employee
who can exercise discretion in conferring a benefit will likely
create a suspicion of bribery and corruption.
12. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
•• There are no “whistleblower” protections or obligations in Iraq.
The law is silent on the issue.
13. Do the domestic anti-corruption regulations
have extra-territorial effect? (Is bribery of
foreign public officials prohibited?)
•• There are no such exceptions.
•• The law is silent on this matter. Neither the Penal Code nor the
Disciplinary Law contains language which criminalises the
7. Does the law cover gifts/entertainment/
attempted or actual bribery of a foreign government official.
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
REGULATION OF ACTIVITIES
14. What are the main bodies responsible for
investigating and combating fraud and
corruption in Iraq?
•• There is an indirect application of the Disciplinary Law which
outlaws gifts to spouses/relatives.
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
•• The Ministry of Justice acts as the prosecutor and investigator
of corruption offences. Larger cases and more policy-driven
issues are handled by the National Integrity Commission, which
is an office of the Prime Minister. The National Integrity
Commission can investigate any action it chooses, but any civil
or criminal action must be taken by and through the Ministry of
Justice prosecutors.
•• There are no rules discussing PEPs or other charitable giving.
Instead, the Penal Code regulates and criminalises the intent of
the bribe. Therefore, if the intent of the gift was to procure some
type of benefit, it will rise above the threshold of an allowable
gift and therefore be considered illegal.
15. What does each of these authorities
investigate?
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• There is no clear jurisdictional divide between the two
entities; they operate with concomitant jurisdiction over the
same issue. The Ministry of Justice has a broader scope of
jurisdiction, and as such it may have budgetary constraints
which may dictate the type and scope of activities the
Ministry of Justice may entertain.
•• The anti-corruption laws only apply to the public sector. There is
no law regulating bribery of a private employee.
16. Do the authorities described above have the
same powers of investigation?
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
•• The definition of a “public body” is any entity chartered by the
Iraqi Government, any ministry or any subsidiary organisation
thereof. Therefore, state-run and state-owned companies can
be public bodies.
•• There are no authorities which govern insider dealing and
market abuse. For issues specific to dealing with the Iraqi Stock
Exchange (“ISX”), the ISX maintains its own Code of Conduct.
However, this is not a codified law, nor does its violation
mandate the Iraqi Ministry of Justice prosecutors or National
Integrity Commission to become involved. In theory, the ISX
could impose a punishment consistent with its role, such as
banishment from the exchange, or restitution. However, we note
•• The Disciplinary Law very broadly defines a civil servant (for the
purposes of that legislation) as: “Every individual assigned/
entrusted with a post/job within the ministry’s staff or a body that is
not connected to a ministry.”
that at the time of writing this is a remote possibility.
17. What actions may these bodies take in
exercising their functions?
•• The bodies may take such action which their constitutional
mandate allows.
14
HERBERT SMITH FREEHILLS
Iraq
18. What are the powers of arrest and detention
of the relevant authorities?
23. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
•• There are several authorities in Iraq which have the power of
arrest and detention. In regards to bribery and corruption
allegations, the relevant authorities include:
•• Yes. Information obtained during the course of the investigation
may be freely disseminated and communicated to different
government ministries and/or organs of the state. This
information may be utilised for any purposes which the
Government may deem necessary.
The Metropolitan Police (ie city police of each jurisdiction);
the Iraqi National Guard;
the Iraqi Army; and
the Iraqi Civil Defence Force.
•• The powers of arrest and detention have not been codified or
distinguished between the relevant authorities, and there exists
no one statute or law which codifies the rights of the accused in
terms of a definition of detention and arrest.
24. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
19. What is the jurisdictional reach of these
powers?
•• No. There are no inherent rights which attach to the accused
during the investigation phase. If and when the matter is referred
to the Ministry of Justice prosecutors, there is a right to a fair
•• The bribery offences apply to any act of bribery which takes
place in Iraq, and includes acts where one or more of the parties
and speedy trial as well as the right to counsel. However, during
was outside Iraq, if the act has consequences which are realised,
or intended to be realised, in Iraq. The person committing the
bribery offence need not be present in Iraq at the time of the
incident to fall within the jurisdiction of Iraqi criminal law. The
parties to the offence also need not be Iraqi nationals.
the investigation stage, the accused enjoys no procedural due
process rights.
SANCTIONS FOR WRONGDOING
25. What disciplinary sanctions/sentences may
these authorities impose?
•• Iraq is not a member of many international conventions and
treaties which allow for the sharing of intelligence through police
and military connections. Therefore, the reach of the Iraqi
Government outside its borders will more than likely be limited
by practical, rather than legal, means.
•• The Penal Code authorises the following sanctions:
Sentence: Maximum of 10 years' prison sentence for a private
citizen; and seven years' for a government employee.
Fine: May be imposed at the discretion of the court, which
should not be less than the amount of the bribe.
20. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
•• If the bribery or corruption is defined as a crime against the
state, or carries with it any implication of any act of treason, the
sanctions and sentences may be much harsher.
•• The police assist the Ministry of Justice prosecutors and/or the
National Integrity Commission in their investigations.
•• In Iraq there is no distinction between civilian and military law
enforcement. Each of these entities may assist the Ministry of
Justice and/or the National Integrity Commission.
26. Do the relevant authorities have powers to
freeze assets which may be the proceeds of an
ABC offence pending conclusion of their
investigation?
21. How do the relevant regulatory authorities
interact with overseas regulators?
•• The Iraqi Ministry of Justice, together with the Tanfeez Office
(Enforcement Office) does have the ability to freeze any, and all,
assets it may deem appropriate during the course of the
investigation and/or as compensation pending any final judgment.
•• As Iraq is not a signatory to certain international treaties
concerning law enforcement and fugitives, there is little
interaction between Iraqi and international regulators.
27. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
22. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
•• No. The Iraqi criminal procedure laws and regulations contain no
protections on the information gathered in the course of an
•• It is possible to enter into settlement negotiations with the
Ministry of Justice prosecutors. However, settlement actions
may only begin after an individual has been formally charged
with an action in bribery or corruption. Such plea agreement or
settlement will be by, and between, the Ministry of Justice
prosecutors and the defendant. The judge assigned to the case
would need to approve the settlement before it is final.
investigation. In practice, the decision to investigate a particular
instance of bribery or corruption will typically be linked to a
political motive and/or some form of partisan politics. There is no
implicit or explicit confidentiality in respect of the investigation.
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
15
Iraq
28. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation? (If so, what form should
the disclosure take and what details should be
included?)
•• There are no prescribed methods of disclosure or self-reporting
in Iraq.
29. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
•• It is not possible in practice to obtain a written or signed
acknowledgment from the relevant authorities that any
particular act should not be considered a bribe or an illicit gift.
30. Are there provisions for defendants to
appeal against any enforcement action/
prosecution taken against them?
•• In Iraq, there is an appeal as of right. The Court of First Instance
will be the primary court in which an individual will face charges,
and where the first trial will be held. However, the defendant has
the right to appeal interlocutory orders on issues of fact or law to
the next higher court. In terms of appeal of judgments, the
defendant has the right to appeal these decisions twice: once to
the intermediary court and once to the final Supreme Court. The
judgment will not be seen as “final” until all appeals have been
exhausted and completed. However, an appeal against a
judgment ordering a prison sentence must be conducted while
incarcerated; the sentence is not suspended pending the appeal.
REFORMS
31. Are there likely to be any significant reforms
in Iraq in the near future?
•• We are not aware of any reforms currently being considered by
Parliament or the National Integrity Commission.
Author
Iraq Law Alliance, PLLC
Baghdad, Basra & Erbil, Kurdistan Region, Iraq
Thomas W. Donovan
T +964 (0)77 1358 6705
www.iqilaw.com
FRANCE
16
HERBERT SMITH FREEHILLS
Hashemite Kingdom of Jordan
ITA
L
Y
SPAIN
TURKEY
Hashemite
Kingdom of Jordan
TUNISIA
LEBANON
SYRIA
C
CO
O
ISRAEL
IRAQ
R
O
IR
M
ALGERIA
JORDAN
BAH
KUWAIT
LIBYA
Jordan has a specific anti-corruption law. There
are also provisions relating to anti-bribery and
corruption in a number of other laws, primarily in
the Jordanian Penal Code.
EGYPT
QATAR
SAUDI
ARABIA
UAE
O
MAURITANIA
MALI
NIGER
THE LAW
1. What is the source of:
YEMEN
SUDAN
crimes violating public trust under the Penal Code;
economic crimes subject to the Economic Crimes Law;
CHAD
ERITREA
BURKINA
REP
ABC legislation and regulations?
FASO
DJIBOUTI
any act or omission that results in causing damage to
SOM
GUINEA
•• The primary sources of regulation are:
The Civil Service Regulation No.82/2013 (the “Regulations”);
the bribery-related provisions of the Jordanian Penal Code
No.16/1960 (the “Penal Code”);
the Economic Crimes Law No.11/1993 (the “Economic
Crimes Law”);
the Anti-corruption Commission Law No.62/2006 (the
“Anti-corruption Law”); and
the Higher Procurement Commission Regulation No.50/1994
(the “Higher Procurement Commission Regulation”).
public property;
abuse of authority contrary to the law;
accepting nepotism or favouritism that preclude rights, or
grant illegitimate interests;
all acts subject to anti-corruption international conventions to
which Jordan is a party;
money laundering;
unjust enrichment; and
failure to disclose investments, assets or benefits that may
lead to a conflict of interest if the laws and regulations require
such disclosure and if such investments, assets or benefits
may cause the person who has failed to disclose them to
realise a personal direct or indirect benefit.
NIGERIA
N
UGA
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
•• For the avoidance of doubt, the Anti-corruption Law does not
contain a separate definition of ‘bribery’.
•• Gift giving to public servants is only dealt with in very general
terms within the Regulations. Some guidance in this regard is also
provided by the Code of Conduct for Public Office (the “Code of
Conduct”); however, this provides only a general statement of
ethical standards and lacks means for implementation or
sanctions (see paragraph 12 below for more detail).
ABC under the procurement law:
2. What constitutes an ABC offence in Jordan?
•• The Higher Procurement Commission Regulation further
prohibits all parties to a procurement-related transaction from
directly or indirectly soliciting, requesting, offering, granting or
providing any benefit to, for the interest of or in response to an
order by any public servant in return for carrying out an act or
refraining therefrom.
ZAMBIA
ZIMBABWE
Bribery:
•• The Higher Procurement Commission Regulation defines the
parties to a procurement transaction as including: governments;
public departments, corporations and agencies; national,
regional and international agencies that operate in the field of
financing, lending and aid-granting; manufacturing, producing
and supplying companies; commercial agents and
intermediaries; consultants and other individuals and entities
•• In accordance with Articles 170-173 of the Penal Code, bribery
can be defined as requesting or accepting (whether directly or
for a third party) any gift, promise or other benefit in return for
any legitimate or illegitimate act done by virtue of the
employee’s position or in return for refraining from any act that
the employee should have done by virtue of his/her position.
The offeror of a bribe is also deemed to commit an offence and
may be subject to the same punishments as the receiver of the
bribe (as set out in paragraph 26 below).
that provide services or funds in relation to any
commercial transactions.
Corruption:
•• The Regulation requires all such parties to take all necessary
measures to ensure that no illegitimate benefit (of any kind or
amount) is delivered to any person or public servant (whether in
•• Under Article 5 of the Anti-corruption Law, “corruption” is
person, through a medium or to any of the relatives or partners
widely defined to comprise:
crimes pertaining to public office under the Penal Code;
of such person). It also prohibits the use of subcontracts or
purchase orders as a means for transferring funds or other
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ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
17
Hashemite Kingdom of Jordan
benefits to any person (or to any relative or partner of such a
person), public servant or authorities which have any
decision-taking powers.
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
•• The provisions pertaining to bribery in the Penal Code consider a
gift or benefit to be a bribe if a public servant accepts a benefit in
exchange for an act or omission related to the office, whether
such gift or benefit is for the public servant him/herself or for a
third party. This provision would apply if the gift/benefit is given
or promised to spouses, relatives or companies in which the
public servant is a director or shareholder.
•• As set out in more detail in paragraph 28 below, the only party
who benefits from available defences in cases of bribery is the
provider of the bribe. If the bribe is provided in return for an
illegitimate service or for refraining from performance of any act
that falls within the duties of a public servant, and the offer or
promise of the gift or benefit is not accepted, the person offering
the bribe would suffer a lesser penalty if successfully prosecuted
than if the gift or benefit was accepted.
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
•• Though there is no clear legal provision regarding donations
made to the Government and/or PEP-related charities, such acts
would be covered by the bribery-related provisions of the Penal
•• Further, the provider of a bribe and any person who intervenes in
this act by acting as an accessory (ie, by providing help or
support to the provider of the bribe) is exempted from penalty if
they report or admit the bribe to the authorities prior to the
matter being referred to the court.
Code, as they would constitute benefits given to third parties in
exchange for an act or omission by a public servant.
9. Do the anti-corruption laws/regulations apply
to the private sector or do they relate to the
bribery of public individuals and/or bodies only?
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
•• Legal rules pertaining to anti-corruption exist in several laws and
regulations that mainly address the public sector, but their reach
extends to members of the private sector in certain
circumstances. For example, Articles 172 and 173 of the Penal
Code make no distinction between providers of the bribe in the
public and the private sectors. Irrespective of the relevant sector,
the provider of a bribe may be subject to imprisonment and a
monetary fine.
•• There are no specific provisions in the applicable laws or in the
Code of Conduct as to any monetary or other threshold for gifts
that are considered ‘acceptable’. The only indication provided in
this regard is contained in Article 68 of the Regulations, which
provides that gifts should comply with what is ‘commonly
accepted as a token of appreciation and respect’. In practice, in
order for a gift to be deemed ‘acceptable’, it should be symbolic
and of a nominal value.
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• In addition, the definition of ‘public property’ in the Economic
Crimes Law includes all property that is owned or subject to the
control of banks, public shareholding companies and specialised
lending agencies. Accordingly, the chairmen and members of
the boards of directors of such entities may be subject to
these provisions.
•• Since there are no clear indications as to what constitutes
‘acceptable’ gifts, any benefit provided to a public servant would
be subject to the discretion of the court in determining whether
it is a legitimate benefit, unless it is clearly in violation of the law
for being in exchange for an act or omission related to the office
of the public servant.
•• Further, the definition of ‘corruption’ in the Anti-corruption Law
does not turn on the identity of the actor, but, more generally,
includes acts or omissions that result in damage to public property.
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
•• Jordanian law does not define a “public body” as such, but the
Special Bureau for the Interpretation of Laws has issued a
decision that considers a “public establishment” as one that is
distinguished by:
being part of the public administration that uses public
authority to achieve its objectives;
•• The Penal Code distinguishes between payments provided in
return for (i) an illegitimate service or for refraining from any act
that falls within the duties of a public servant and (ii) a legitimate
service that falls within the duties of the official. In the latter
case, both the public servant and the provider of the bribe would
suffer a lesser penalty than in the former case.
providing public services;
having public funds;
employing staff who are considered as public servants and
whose decisions are deemed as administrative decisions; and
18
HERBERT SMITH FREEHILLS
Hashemite Kingdom of Jordan
being entitled to conclude contracts and enjoy various
financial advantages.
his immediate superior, who must in turn advise the employee in
writing of whether the gifts, hospitality or other benefits must be
refused, retained by the department, donated to a charity,
disposed of or retained by the employee in question.
•• For the purpose of bribery, the Penal Code provides that its
provisions apply to:
•• The Code of Conduct also provides that public departments
shall open a gift registry where a record shall be made of all the
gifts given to the department and of the manner in which they
were dealt with, ie whether they are retained by the department
or employee or disposed of through donation or otherwise.
public servants in the administrative or judicial domain;
officers or personnel of the civil or military authorities;
employees of the State or any public administrative body;
persons entrusted with a public service, whether by election
or appointment;
persons entrusted with an official assignment such as an
arbitrator, expert or receiver;
providers of the bribe to any of the above persons; and
lawyers accepting or requesting bribes to perform an
illegitimate act or to refrain from an act that falls within
their duties.
•• It must be noted, however, that the Code of Conduct is
essentially a general statement of ethical standards that lacks
means for implementation or sanctions for violating its
provisions. Furthermore, the Code of Conduct lacks a specific
definition of gifts that are considered as acceptable/
unacceptable, including their value. Also, as far as we are aware,
the gift registry provided for in the Code has so far not been
established in any public department.
•• State-owned companies are not recognised distinctly as such
under Jordanian law. According to Article 8 of the Companies
Law, companies that are wholly owned by the Government must
13. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
be registered under the Companies Law either as limited liability,
private shareholding or public shareholding companies. Persons
working for such companies are not considered public servants.
•• Yes. The Jordanian Criminal Procedure Law No.9/1961 (the
“Criminal Procedure Law”) imposes an obligation on any public
servant or any other person who becomes aware of the
committal of any offence or felony to immediately report such
incident to the relevant public prosecutor.
•• According to the Regulations, a public servant is a person
appointed in a post listed on the schedule of public posts issued
under the General Budget Law or within the budget of a
public entity.
14. Do the domestic anti-corruption regulations
have extra-territorial effect? (Is bribery of
foreign public officials prohibited?)
11. Would members of the Jordanian royal family
be considered public officials by virtue of the
fact that they are members of the royal family?
•• No.
•• Yes. The Penal Code applies to any Jordanian citizen who
commits an offence or felony that is penalised under Jordanian
law, whether inside or outside of Jordan.
12. Does the Government issue internal
regulations or codes applicable to public
officers/civil servants?
REGULATION OF ACTIVITIES
15. What are the main bodies responsible for
investigating and combating fraud and
corruption, in Jordan?
•• Most of the laws that govern public entities, or the regulations or
directives issued thereunder, include a standard provision that
prohibits their employees from accepting gifts from any persons
who may have an interest in their entities. Such acts are also
penalised with various disciplinary measures according to the
said laws or regulations, but the main legal instrument that
governs acts of bribery in relation to public entities remains the
Penal Code.
•• In 2006, the Government issued the Code of Conduct, but it
was only announced and circulated to public administrative
bodies in late 2010.
•• According to the Criminal Procedure Law, the main entity
entrusted with investigating and combating crime in general,
including bribery and corruption, is the “Justice Control”
establishment, which is represented by public prosecutors, or, in
jurisdictions that do not have a public prosecutor, by judges of
small claims courts, assisted by a number of other officials such
as administrative governors, policemen, the Director of the
Public Security Department and mayors. Justice Control also
includes members of the police force, officials assigned with
criminal investigations, and captains of ships and aircrafts.
•• Article 8 of the Code of Conduct prevents public employees
from accepting or requesting any gifts, hospitality or other
benefits of any kind, whether directly or through a third party,
where such benefits may have a direct or indirect influence on
•• In addition to the above, the Anti-corruption Law gives criminal
investigation powers to the Anti-corruption Commission.
•• The Securities No.76/2002 (the “Securities Law”) gives similar
the performance of their duties or may compel them to make
powers to the Securities Commission.
certain commitments in return for accepting the benefits.
•• Where the employee, however, is in a position where he cannot
refuse gifts, hospitality or other benefits that do not have such
an impact, or when he believes that accepting certain kinds of
hospitality will be to the benefit of his department, the Code of
•• Some overlap exists between the investigative powers of the
various authorities. For example, both the Anti-corruption
Commission and the Securities Commission may carry out their
own investigations or refer the matter to the public prosecutor
from the outset.
Conduct directs the employee to report the same in writing to
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
19
Hashemite Kingdom of Jordan
16. What does each of these authorities
investigate?
19. What are the powers of arrest and detention
of the relevant authorities?
•• Justice Control officers are generally responsible for investigating
all acts that constitute crimes under the Penal Code.
•• The Anti-corruption Commission has powers to investigate
financial and administrative corruption.
•• If a person is detained for more than 24 hours without being
questioned by the public prosecutor, such detention is
considered to be arbitrary and the official(s) that detained such
person is (are) potentially liable under the Penal Code for the
crime of restriction of personal freedom.
•• The Securities Commission is entrusted with investigating all
violations of the Securities Law.
17. Do the authorities described above have the
same powers of investigation?
•• The Prime Minister has the discretion, under the Economic
Crimes Law, to refer crimes that fall under the law to the State
Security Court. In such a case, the State Security Law
No.17/1959 allows for an individual to be kept in detention for up
to one week prior to referring him to the public prosecutor.
•• No. Each authority has different powers of investigation.
18. What actions may these bodies take in
exercising their functions?
•• After a defendant is questioned, the public prosecutor has the
right to detain him for up to two months if the crime falls under
the Economic Crimes Law and the Prime Minister decides to
refer it to the State Security Court.
•• Justice Control officers have the power to investigate, collect
evidence, arrest suspects and refer them to competent courts.
For this purpose, public prosecutors are entitled to detect
•• In all other instances, the general rules contained in the Criminal
Procedure Law shall apply, namely:
crimes, track suspects, request the assistance of armed forces
the public prosecutor may detain an individual for a period not
exceeding seven days if the alleged criminal offence is
punishable with imprisonment for a period of more than two
years; and
and experts, seize any materials pertaining to the crime under
investigation, monitor telephone calls, summon and interrogate
suspects and witnesses and detain suspects.
•• The Anti-corruption Commission has powers to prosecute
persons who violate the provisions of the Anti-corruption Law,
seize their movable and immovable property, prevent them from
travel, suspend them from their posts and suspend their salaries
and other financial entitlements if necessary.
the public prosecutor may detain an individual for a period not
exceeding 15 days if the alleged criminal offence is punishable
by the death penalty, imprisonment with hard labour,
imprisonment for life or for a period ranging between 3 to
15 years.
•• The Anti-corruption Commission is further entitled to demand
any information or documents that it deems necessary from any
entity whatsoever. It also has the authority to conduct financial,
technical and administrative audit of the records of any entity
that falls within its jurisdiction.
•• The period of detention may be extended in certain
circumstances:
up to a maximum of one month in the case of offences
punishable with imprisonment for a period of one week to
three years or with a monetary fine;
•• In order to undertake investigations, the Securities Commission
may: (i) inspect any of the entities that fall within the jurisdiction
of the Commission, audit its records and registers, and acquire
any information or documents relevant to the investigation; (ii)
obtain primary statements, as well as relevant information,
documents or records, from any person; (iii) request any
documents or papers relevant to the investigation; and (iv)
summon witnesses and hear their testimony under oath.
up to a maximum of three months in the case of felonies
punishable with hard labour or imprisonment for a period
ranging between 3 to 15 years; or
up to a maximum of six months in cases of other felonies.
•• Where the period of detention is not extended, the defendant
must be released.
•• Under the Economic Crimes Law, the Attorney General is
entitled to impose provisional attachment on the assets of the
persons implicated in the crime, in addition to the assets of their
spouses, ascendants and descendants, pending the conclusion
of the investigation.
•• If, prior to the end of the above-mentioned extensions, the public
prosecutor finds that the investigation requires the need to keep
an individual in detention, the public prosecutor must refer the
matter to the competent court which can, at each time that it is
requested to do so, extend the detention. The total time of
detention is subject to a maximum, the length of which depends
on whether the alleged crime is an offence or a felony. The court
may also decide to release the defendant with or without bail in
any of the said cases.
•• For the purposes of the Economic Crimes Law, assets owned or
administered by any of the entities listed below are considered
public property:
Ministries and public official departments and institutions;
the Senate and House of Deputies;
municipalities, local councils and joint services councils;
syndicates, unions, associations and clubs;
banks, public companies and specialised credit institutions;
political parties;
•• Furthermore, the public prosecutor may, in the case of felonies
and offences punishable with temporary penalties, decide to
withdraw the warrant for detention if the defendant has a fixed
place of residence in Jordan.
any authority with a budget mainly supported through the
state's budget; and
any authority stated by the law administering public funds.
20
HERBERT SMITH FREEHILLS
Hashemite Kingdom of Jordan
20. What is the jurisdictional reach of these
powers?
responsible for referring the cases that they investigate to the
competent courts. The information that is collected by these
entities in the course of their investigation is used by the public
prosecutor to justify its decisions to prosecute.
•• Although the Penal Code applies to all Jordanians and residents
of Jordan who commit crimes punishable under Jordanian law
outside of Jordan, the powers of investigation of Jordanian
authorities do not extend overseas.
21. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
25. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
•• Yes. The Criminal Procedure Law expressly provides that Justice
Control officers (as defined in paragraph 16 above) may request
the assistance of the armed forces for the discharge of their
duties. The Law also provides that the assistance of such forces
must be requested in cases where a person summoned for
questioning does not respond to such order or in cases where a
warrant for detention is issued by the competent authorities.
•• According to the Criminal Procedures Law, when an individual
attends before the prosecutor, the prosecutor must inform the
individual of the criminal offence with which he is accused and
warn him that he has the right not to respond to any questions
except in the presence of a lawyer. The individual is also entitled to
contact his lawyer at any time and without any monitoring.
Furthermore, by virtue of the Lawyers’ Association Law No.11/1972
lawyers are prohibited from disclosing any confidential information
pertaining to their clients and from testifying against their clients in
22. How do the relevant regulatory authorities
interact with overseas regulators?
cases in which they represent them.
•• Under the Anti-corruption Law, the Anti-corruption Commission
has the authority to investigate all acts subject to international
anti-corruption conventions to which Jordan is a party.
SANCTIONS FOR WRONGDOING
26. What disciplinary sanctions/sentences may
these authorities impose?
•• Jordan has acceded to both UNCAC and the Arab
Anti-corruption Convention (“AACC”). In accordance with the
Jordanian Constitution, UNCAC and AACC became effective as
national legislation upon ratification. Both conventions provide
for cooperation between state parties in various aspects of the
combat against corruption, including prevention and
investigation of corruption, prosecution of offenders, collection
and transfer of evidence, and extradition of offenders. We are
not aware of any instances in which the Court of Cassation has
referred to the implementation of UNCAC or AACC in any of
its decisions.
The Penal Code:
•• The Penal Code distinguishes between payments provided in
return for (i) an illegitimate service or for refraining from any act
that falls within the duties of a public servant and (ii) a legitimate
service that falls within the duties of the official:
If the payment for an illegitimate service is accepted, the
punishment may be imprisonment with hard labour for a
period of 3 to 20 years.
In the event that the bribe for an illegitimate service is not
accepted, the person offering the bribe may be penalised with
a lesser sentence of imprisonment ranging from three months
to three years, in addition to a fine equivalent to approximately
USD15 to USD280.
23. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
•• The Penal Code prohibits the publication of any documents or
information relating to a criminal investigation prior to
announcing such information in a public hearing. The Code of
Criminal Procedure also expressly provides that documents that
are inspected can only be viewed by the public prosecutor or
judicial control officer prior to being seized.
If the payment for a legitimate service is accepted, both the
public servant and the provider of the bribe may be subject to
imprisonment for a period of two to three years in addition to a
fine equal to the benefit accepted or requested.
The Civil Service Regulation:
•• All information or documents to which the Anti-corruption
Commission has access are deemed to be confidential and may
only be disclosed subject to the provisions of the law.
•• In addition, under the Civil Service Regulation No.82/2013, a
person dismissed from public service for bribery or any other
offence or felony that involves honour or public morals shall be
deprived of his/her financial dues.
•• Any information to which the Securities Commission has access
is deemed confidential, and may only be disclosed by the Board
of Commissioners if such disclosure is deemed to be necessary
for the protection of investors.
The Securities Law:
•• The Law of Securities No.76/2002 (the “Securities Law”)
further provides that the Board of Commissioners of the
24. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
Securities Commission may publicise any violation of the
provisions of the Securities Law and its related regulations,
instructions and decisions in order to forewarn investors to avoid
any resulting consequences of such violation. The Securities Law
also grants the Board the power to impose monetary fines of up
•• Justice Control officers, as well as the Anti-corruption
Commission and the Securities Commission, which are
considered part of the Justice Control establishment, are
to the equivalent to approximately USD70,621 on any
person who:
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
21
Hashemite Kingdom of Jordan
Violates the provisions of the Securities Law and its related
regulations, instructions and decisions;
wilfully aids, abets, counsels or commands any other person to
commit the violation; or
committee that consists of the Chief Attorney General (as
Chairman), in addition to a judge nominated by the President of
the Judicial Council and the State Attorney. Such settlements
may not be concluded with public servants including staff of the
administrative, judicial or municipal establishments and officers
and personnel of security or military establishments.
states, or causes to be stated, in any application or report filed
with the Securities Commission any information which is false
or misleading with respect to any material fact, or fails to state
in any such application or report any material fact that should
have been stated.
•• In accordance with the Anti-corruption Law, a perpetrator of a
corruption crime, or an accomplice, accessory or instigator, will
be exempted from prosecution if the subject of the crime is
reported prior to detection of the crime by the authorities and
the reported information leads to recovery of the property.
•• The Board will, however, take the following into consideration
when ordering the fine and deciding its amount:
Whether the violation involved fraud, deceit, manipulation or
deliberate disregard or gross negligence of the requirements
stipulated in the Securities Law;
29. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
whether the violation resulted, directly or indirectly, in harm to
any person; and
whether the violation has resulted in unjust enrichment, taking
into account any restitution made to persons injured by such
•• In cases of gifts that do not constitute bribes under the Penal
Code, the Code of Conduct directs the public servant to report
the same in writing to his immediate superior, who must in turn
a violation.
advise the employee in writing of whether the gifts, hospitality
•• To the extent that the violations can be classed as such under
both the Securities Law and the Penal Code, penalties under the
Securities Law may be imposed in addition to the sanctions
under the Penal Code.
or other benefits must be refused, retained by the department,
donated to a charity, disposed of or retained by the employee
in question.
•• Though the Code of Conduct does not address the status of the
provider of the gift, we believe that such disclosure, whether
made by the public servant himself as provided for under the
Code of Conduct or by the provider of the gift, should serve to
avoid creating an appearance of impropriety.
27. Do the relevant authorities have powers to
freeze properties which may be proceeds of an
ABC offence pending conclusion of their
investigation?
•• As mentioned at paragraph 12 above, to the best of our
knowledge, the gift registry, as provided for in the Code of
Conduct, has not yet been established.
•• Bribery is considered to be an “Economic Crime” under the
Economic Crimes Law where it “prejudices the economic
position of the state or the public trust in national economy,
national currency, stocks, bonds or securities or if the subject of
such crime is the public monies” (Article 3(C)(A) of the
Economic Crimes Law). In such a case, the Attorney General is
entitled to impose provisional attachment on the assets of the
persons implicated in the crime, in addition to the assets of their
spouses, ascendants and descendants, pending the conclusion
of the investigation.
30. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
28. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• Neither the law nor the Code of Conduct contains any guidance
in this regard.
31. Are there provisions for defendants to appeal
against any enforcement action/prosecution
taken against them?
•• According to the Penal Code, the provider of a bribe and any
person who intervenes in this act by providing any form of help
or support to the briber (an accessory) is exempted from penalty
if they report or admit the bribe to the authorities prior to
referring the matter to the court.
•• In the case of an offence (defined in the Penal Code as a
misdemeanour punishable with imprisonment of one week to
three years and/or a monetary fine equivalent to approximately
USD15 to USD280), an application for release from detention
with bail may be made to the public prosecutor. In the case of a
felony (defined in the Penal Code as a crime punishable with the
•• Under the Economic Crimes Law, if an economic crime is
reported to the authorities by one of the perpetrators (other
than an instigator) before the crime is detected, such person
should be exempted from penalty provided that the subject of
the crime is considered as public property and the reported
information leads to the recovery of such property.
death penalty), imprisonment (with or without hard labour) for
•• Under the same law, the Attorney General is entitled to cease
the prosecution of a person who has committed an economic
crime and to conclude a settlement with such person if he
life or for a period ranging between three and fifteen years, an
application for release should be made to the court before which
the individual will be tried, provided that the court finds that
such release will not affect the investigation or disturb public
security. The individual may appeal the decision regarding
returns all the funds that he has acquired as a result of the crime.
release within three days of the date on which he is served with
Such a decision by the Attorney General would only become
enforceable, however, after it is approved by a judicial
the decision. Decisions of the public prosecutor or Small Claims
Court in this regard are appealed to the Court of First Instance,
22
HERBERT SMITH FREEHILLS
Hashemite Kingdom of Jordan
while decisions issued by the Court of First Instance are
appealed before the Court of Appeal.
•• If a decision is issued for releasing a defendant with bail, the said
bail must be provided by the defendant in the amount
determined by the competent entity, which may also instruct the
defendant to provide a cash deposit instead of the bail.
•• Where assets are attached under the Economic Crimes Law,
persons – other than the defendant – whose assets are subject
to attachment have the right to file an objection in this regard
before the State Property Maintenance Court.
32. Recent high-profile allegations and
prosecutions
•• Most bribery and corruption cases are heard in private. However,
there have been some recent media reports regarding corruption.
Most notably, the trial of Walid Al Kurdi, CEO of the Jordan
Phosphate Mines Company, who was accused of exploiting his
office and violating the Economic Crimes Law. The Criminal
Court sentenced Al Kurdi in 2013 to 15 years of hard labour in
addition to a fine amounting to approximately USD400 million.
REFORMS
33. Are there likely to be any significant reforms
in Jordan in the near future?
•• There are no imminent reforms that we are aware of.
Authors
Obeidat Freihat
Sanaa A. Obeidat
196 Zahran Street
Emmar Towers, 1st Floor
PO Box 926544
Amman 11190, Jordan
T +962 6 577 7600
F +962 6 5 77 7606
www.obeidatfreihat.com/partners
FRANCE
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
ITA
L
Y
23
Kuwait
SPAIN
TURKEY
Kuwait
TUNISIA
LEBANON
SYRIA
C
CO
O
ISRAEL
IRAQ
R
O
IRAN
M
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
Kuwait has specific laws dealing with bribery in
the public sector.
QATAR
SAUDI
ARABIA
UAE
OMAN
MALI
NIGER
YEMEN
SUDAN
CHAD
THE LAW
1. What is the source of:
ERITREA
documents relating to it, and shall have the right to refer the
same to the competent judicial authorities.
DJIBOUTI
BURKINA
FASO
REPUBLIC OF
SOMALILAND
ABC legislation and regulations?
•• The law that regulates the conduct of persons connected to
government or public services is the Kuwait Penal Law
No.31/1970 (the “Penal Law”), as amended by Law No.31/1970,
“Prohibitions against the Payment and Receipt of Bribes” (“Law
No.31/1970”).
•• Law No.25/1996, “Concerning the Disclosure of Commissions
Paid on Contracts with the State of Kuwait” (the “Commissions
Disclosure Law”) requires disclosure of commissions or similar
payments in connection with any supply, purchase or public
works contracts executed with government bodies.
•• Law No.116/2013, “Promoting Direct Foreign Investment in the
State of Kuwait” (the “Foreign Investment Law”), replaced an
earlier foreign investment law passed in 2001. Under Article 7 of
this new Foreign Investment Law, it is prohibited for any of the
members of the Board of Directors and the staff of the General
Authority for Foreign Investments (“Authority”) to have a personal
interest, whether directly or indirectly, in any project or the services
provided by the Authority. They are required to disclose their
interests and refrain from participating in the discussion or take
any decision regarding a project in which any of them has an
interest or his spouse or his next of kin of the first degree. If the
director or staff violates this provision, any resolution passed by
the Authority in connection with any project shall be void.
NIGERIA
N
UGA
•• On 16 February 2000, Kuwait ratified the “United Nations
Convention against Corruption”. Following this and in answer to
calls to tighten up laws on corruption, Decree No.24/2012
“Regarding the Establishment of the General Organization for
Combating Corruption and Rules on Disclosure of Financial
Liability” (“Decree No.24/2012”) was passed in 2012. Among
its objectives was to establish a body to combat corruption (the
“Anti-corruption Board”) and to establish rules on disclosure of
assets and liabilities of persons in public service and rules
regarding informers.
•• In 2016, Law No.2/2016, “On the Establishment of the General
Anti-corruption Commission and the Provisions Pertaining to
Financial Disclosures”, a new anti-corruption law was passed
(“Anti-corruption Commission Law”). Its purpose was to
replace Decree No.24/2012, which had originally established
the Anti-corruption Board but which was subsequently declared
unconstitutional by Kuwait’s Constitutional Court. The new Law
strengthens and clarifies the powers of the Anti-corruption
Board previously created in 2012. The new Law sets forth similar
rules on disclosure of assets and liabilities of persons in public
service as well as more detailed procedures to be followed in
receiving reports and evidence of bribery, corruption and
protecting informers. Under the new Law, an informer enjoys the
protection of government authorities from the time he or she
submits information notifying the authorities of the crime. Such
protection extends to his or her spouse and family. The new Law
also encourages community participation, directing citizens to
report bribery and corruption crimes to the Anti-corruption
Board within the scope of its investigative powers.
ZAMBIA
•• Under Decree No.24/2012, the following crimes were
considered to be within the jurisdiction of the Anti-corruption
Board: crimes of abuse of public funds stipulated in Law
No.1/1993, including crimes related to public tenders, auctions
and practices; bribery and use of influence, as stipulated in the
Penal Law; money laundering; forgery or fraud; crimes relating to
the conduct of justice; crimes relating to illicit gains; crimes
relating to evasion of customs laws in Law No.10/2003; tax
evasion; obstructing the work of the Board or exercising pressure
to hinder the execution of its duties or to interfere in its
competencies or to abstain from providing it with the requested
information; crimes relating to the protection of competition; and
ZIMBABWE
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
any other crimes which relate to corruption of public officers.
sponsored training/conferences and other similar
hospitality events?
•• When the Anti-corruption Board has knowledge of or suspects
that corruption has occurred, it shall collect information and
evidence regarding the same. The Board has the right to address
and call any person who may have knowledge or information
•• Under Article 38 of the Penal Law, any benefit, gift, hospitality or
entertainment given to a public official or employee (or to a third
person on their behalf) would be considered a bribe under the
regarding the corruption. The Board has the right to view all
Penal Law if given and accepted in consideration of the public
records, documents and deeds relating to the alleged corruption;
it also has the right to require any information or data or
official or employee performing or abstaining from a particular
act related to their duty.
D
A
TOGO
ETHIOPIA
R
E
P
U
B
LIC OF
SOUTH
SUDAN
GHANA
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
A
EQUATORIAL GUINEA
ÃO TOMÉ AND PRÍNCIPE
RWANDA
SEYCHELLES
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMOROS
M
O
Z
A
M
MADAG
A
S
C
A
R
MAURITIUS
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
24
HERBERT SMITH FREEHILLS
Kuwait
2. What constitutes an ABC offence in Kuwait?
each of the 35 applications) was crucial in determining the
existence of bribery, these cases demonstrate that even small
payments may be considered bribery for the purposes of the
Penal Law.
•• Article 35 of Law No.31/1970 provides that a public official may
commit an offence if he/she solicits a bribe for him/herself or
another party in exchange for performing or not performing a
public duty. The bribe may be any benefit, gift, hospitality
or entertainment.
•• Articles 2 and 3 of the Commissions Disclosure Law only apply
where contracts with entities of the State of Kuwait exceed KD
100,000 in value. Such entities include governmental
authorities, ministries, public departments, the Kuwait
Municipality, public authorities and institutions as well as
companies which are fully owned by the state or in which the
state or a public juristic person owns 50% or more of the
company’s share capital.
•• In addition, Article 37 provides that a public official may not
request for himself or others a benefit, gift, hospitality or
entertainment as a bribe with the intent of retaining the same or
part thereof for himself, or for exerting actual or apparent
influence to attempt to acquire from any public authority any
work, order, ruling, resolution, medal, commitment, licence,
supply agreement, contracting post, service or any other
advantage whatsoever.
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
•• Article 41 of the Penal Law sets out the penalties for bribing
public officials or seeking to do so.
•• Article 2 of the Commissions Disclosure Law states that in
contracts entered into by public authorities having a value of not
less than KD100,000, there should be included an express
•• Gifts or entertainment of a nominal value customarily given on
religious or special occasions (eg Eid celebration) or in
commemoration of an event, which are not in consideration of
performing or abstaining from doing an official act would
arguably fall outside the scope of what would be considered as
statement whether the contracting party paid or shall pay, cash,
bribery. Examples of such gifts include: reasonably priced pens,
commission or benefit to an intermediary.
coffee table books, key chains, desk sets, appointment books
and simple or inexpensive office décor.
•• Article 3 of the Commissions Disclosure Law provides an
obligation on any person who pays or receives a gift or commission
in return for any type of service, and any party who promises or
receives a promise of such on the occasion of concluding a
contract to provide the other contracting party with a detailed
declaration of the gift or commission. The contracting party should
forward a copy of the declaration to the State Audit Bureau.
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• The law does not define this but applies broadly. Examples of
unacceptable gifts include expensive jewellery and
free vacations.
•• Failure to comply with Articles 2 and 3 of the Commissions
Disclosure Law regarding the disclosure of commissions in a
relevant agreement and ongoing requirement to file declarations
in this regard can result in significant criminal sanctions
including monetary penalties and imprisonment.
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
•• There are no such exemptions provided under Kuwaiti law.
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
•• The Penal Code provisions on bribery do not state an amount
that would be considered a bribe; therefore, the provisions can
be interpreted as covering even relatively small amounts.
•• The provisions on bribery in the Criminal Law do not specify gifts,
entertainment or advantages which are given to spouses or
relatives of public officers/civil servants, and/or companies in
which the public officers/civil servants are directors/shareholders.
•• By way of example, in a case filed against a government
employee in Kuwait’s Public Institution for Civil Information, it
was shown that said employee received approximately USD100
to process the renewal of 35 ID cards which were about to
expire. To process 35 separate applications, the same employee
also received approximately USD100 to process each
•• However, Article 38 of the Criminal Law does cover persons
accepting a bribe as well as the person appointed for this
purpose. Accordingly, a grant or gift received by such persons
application. This case was reviewed by the Court of Cassation
(the highest court in Kuwait) and ruled that such payments
constituted bribery under the provisions of the Penal Law.
and entities would be considered a bribe where the party for
whom the bribe was intended appoints such person/entity to
receive the bribe in his/her stead.
•• In another case, the Court of Cassation ruled that the payment
of approximately USD200 for the renewal of a foreign worker’s
residency was a bribe within the scope of the Penal Law.
•• Although these decisions did not state whether the larger
amount involved in the first case (ie payment of USD100 for
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
25
Kuwait
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
disclose their interests and refrain from participating in the
discussion or take any decision regarding a project in which any
of them (or an immediate relative) has an interest. If a director or
staff member violates this provision, any resolution passed by
the Authority in connection with any project shall be void.
•• There is no specific provision in the Penal Law, but the
above-mentioned provisions may nonetheless apply.
13. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• Articles 37 to 41 of the Penal Law apply to bribes in relation to
public officials. There are no equivalent anti-bribery rules that
apply to private sector employees.
•• Article 14 of Law No.17/1960, (the “Penal Proceedings and
Trials Law”), requires any person who has witnessed a crime or
any person who has knowledge of the same to immediately
report it. Refraining from doing so would subject the party to a
penalty. This rule does not apply in respect of spouses of any
person involved in the crime or to his or her ascendants or
descendants.
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
•• Article 20 of the Anti-corruption Commission Law requires
individuals aware of corruption to report it to the Commission or
another competent body, subject to privacy and dignity.
•• Article 43 of the Penal Law provides a definition of public officer
as follows:
14. Do the domestic anti-corruption regulations
have extra-territorial effect? (Is bribery of
foreign public officials prohibited?)
•• The term “public officer” shall apply to the following:
A. Officers, servants and workers at government authorities or
those subject to the government’s supervision or control;
B. members of public parliaments or local councils, either
elected or appointed;
C. arbitrators, experts, deputy prosecutors, liquidators
and receivers;
D. each person that is assigned to a public service;
E. Board members, managers and officers of institutions,
companies, organisations, associations and foundations if the
state or any of its public authorities owns shares in the capital
of such entities in any capacity whatsoever.
•• There are no specific provisions under Kuwaiti law which relate
to the bribing of a foreign public official.
REGULATION OF ACTIVITIES
15. What are the main bodies responsible for
investigating and combating bribery and
corruption in Kuwait?
a) Office of the Public Prosecutor (“OPP”);
b) Kuwait Police Department;
c) State Audit Bureau (“SAB”); and
d) the Anti-corruption Board (“ACB”).
11. Would members of the Kuwaiti royal family
be considered public officials by virtue of the
fact that they are members of the royal family?
•• No, but they may be considered as intermediaries.
16. What does each of these authorities
investigate?
12. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• Generally, the heads of each ministry or department have the
authority to formulate rules of conduct of its employees.
•• The OPP investigates all potential violations of public laws
including any violations of the Penal Law. The OPP undertakes
the investigation, handling and prosecuting of criminal cases. It
may also refer the investigation of any criminal case to the Police
Department for investigation. The Chiefs of the Police
Department and Public Security Department may also
commission the OPP to investigate and handle misdemeanour
cases when necessary. Bribery is not considered a
misdemeanour. Accordingly, the OPP will lead in the
investigation.
•• Article 10 of Council of Ministers Resolution No.106/2009
(“Executive Regulations of Law No.10/2007 Regarding
Protecting Competition”) does address conflict of interest
situations. It states that no Competition Board member may
participate in deliberations about an issue raised to the Board, or
vote on such issue if he/she has an interest therein or if such
member is a relative of any of the concerned parties or in case
•• The Police Department investigates and prosecutes
misdemeanour cases which are assigned to police investigators
appointed for this. The Police Department also investigates the
commission of crimes as may be referred by the OPP.
he/she has represented or is representing one of the concerned
parties.
•• The SAB has the authority to inspect, audit, monitor and
investigate the collection and disbursement of all public funds.
•• Also, as noted above, under Article 7 of this new Foreign
Investment Law, it is prohibited for any of the members of the
Board of Directors and the staff of the Authority to have a
•• The ACB has the power to receive reports and information
regarding corruption. It must then conduct an investigation, and
personal interest, whether directly or indirectly, in any project or
the services provided by the Authority. They are required to
may thereafter refer the same to the competent investigation
body, (Article 24, Anti-corruption Commission Law).
26
HERBERT SMITH FREEHILLS
Kuwait
17. Do the authorities described above have the
same powers of investigation?
investigator, while conducting his investigation, should hear the
statements of the reporting persons. He may call witnesses,
hear their testimonies and record it in his investigation report.
•• The OPP, Police Department and SAB all have investigative
powers although the extent and scope of such powers vary for
each agency.
•• Investigation reports written by police investigators are
submitted to the OPP. The police investigator, under certain
circumstances, also has the authority to order the arrest of
suspects, order the surrender of potential evidence and to seize
the same.
•• The OPP has the power to investigate all potential violations of
the Penal Law and other special laws and may appoint officers to
conduct investigations and undertake inquiries to determine
whether there has been a violation of such laws. The OPP works
closely with the Police Department and its police investigators in
said investigations. The OPP may also refer any criminal cases to
officers in the Police Department for investigation.
•• The Police Department has the authority to investigate, handle
and prosecute all misdemeanour cases.
•• The SAB has the authority to examine and review all financial
documents relating to the collection, use and disbursement of
public funds. The SAB has the authority to investigate incidents
of embezzlement, negligence and financial contravention in
order to suggest corrective measures. The SAB may institute
disciplinary proceedings against persons who commit any
financial deviation before a SAB disciplinary tribunal.
•• The SAB has financial supervision of the following departments
of government:
•• The ACB has the power to review records, papers and
documents related to any matter referred to it where it suspects
a corruption offence to have taken place. The ACB also has the
power to summon individuals for questioning.
a) All the ministries, departments and public organisations
which constitute the bureaucracy of the state;
b) the Kuwait municipalities and all other bodies which have a
public legal entity;
19. What are the powers of arrest and detention
of the relevant authorities?
c) public commissions, bodies, establishments and attachments
of the state;
•• The OPP and the investigators of the Police Department have
the power to order the arrest and detention of a party suspected
of a crime. The SAB does not have the power of arrest
and detention.
d) other local bodies, which are a public legal entity; and
e) companies or establishments in which the state or any other
public legal entity holds a share of not less than 50% of their
capital or guarantees them a minimum profit.
20. What is the jurisdictional reach of these
powers?
•• The SAB has the power to monitor, examine and audit all
financial dealings of such bodies and to review the use and
disbursement of public funds.
•• The SAB may investigate on its own or refer the matter to the
Police Department or OPP. It will refer its findings to the OPP if
there are grounds to prosecute.
•• The laws granting the OPP, Police Department and SAB their
powers do not appear to grant powers with extra-territorial
reach; their jurisdictions appear to be limited to activities
committed in Kuwait or whose consequences are manifest in
Kuwait. In the case of the SAB, its jurisdiction includes Kuwait
government bodies outside of Kuwait; it may refer such matters
to the OPP for prosecution or further investigation.
•• The ACB must conduct an investigation if it receives a report or
information which gives rise to a suspicion of a corruption crime.
However, the OPP will investigate and prosecute any such
crimes, (Article 27, Anti-corruption Commission Law).
•• For residents who commit crimes in jurisdictions other than
Kuwait, their acts are generally governed by criminal and penal
laws in the foreign jurisdiction and not under Kuwaiti law.
18. What actions may these bodies take in
exercising their functions?
21. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
•• The OPP has the authority to receive reports and complaints
against violators of public laws; it may undertake hearings in aid
of its investigations and bring penal action against all violators of
public laws.
•• The SAB may call on the OPP and the Police Department where
they suspect that there has been a violation of any law relating
to the use or disposition of public funds.
•• A police investigator may also subpoena any person to appear
before them if deemed necessary in the course of the
investigation. The subpoena is issued in two original copies
signed by the head of the court or the investigator, and is served
by a court officer, a police officer or any other public servant duly
authorised by the chief judge for this purpose.
•• Similarly, the ACB may refer its investigations to the OPP.
22. How do the relevant regulatory authorities
interact with overseas regulators?
•• Government regulatory agencies in Kuwait are generally
•• The OPP also has the authority to order the arrest of suspects,
encouraged to coordinate with their overseas counterparts for
the surrender of potential evidence and to seize the same.
purposes of coordination, cooperation and sharing of
information for the apprehension of suspects especially among
regulators in the GCC region.
•• The Police Department has the authority to conduct
investigations, inspections, inquiries and collect relevant and
necessary evidence as the administrative body commissioned to
keep order and prevent crimes. The Police Department is
responsible for receiving reports on all kinds of crimes,
examining these reports, collecting all relevant information and
recording them in the investigation report. The police
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
27
Kuwait
23. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
applicable even if the public employee intends not to perform
such an act or abstain from such non-performance.
•• Under Article 37, a penalty as stipulated under Article 35 is
applicable to any person who may request for himself or others
a pledge or a grant allegedly as a bribe for an employee being
intent on retaining the same or part thereof for himself, or for
exerting actual or apparent influence to attempt to acquire any
advantage.
•• There are no specific provisions requiring investigation or
information disclosed to be confidential. However, it is standard
procedure to keep matters surrounding an ongoing investigation
to be kept confidential until the investigation is completed and
the findings are final; after this, the results can then be made
public.
•• Under Article 36, any public official accepting a gift in exchange
for performing, or abstaining from performing, any of his duties
shall be imprisoned for a period not exceeding five years and/or
fined a maximum of KD500 if the public official carries out such
performance or non-performance.
•• Under the Anti-corruption Commission Law, the ACB may
request information relating to an investigation confidentially,
but it is not obliged to do so.
•• Under Article 39, the briber and the intermediary are punished
with the same penalty determined for the person accepting
the bribe.
24. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
•• If the performance or renunciation of the act is rightful, the
briber or the intermediary are punished with imprisonment for a
period not exceeding five years and/or a fine not exceeding
•• Yes. This information is usually submitted to the OPP to
determine whether a complaint may be filed against the
KD1,000.
would-be violators before the relevant courts.
•• Under Article 41, any person who offers a public officer a gift for
performance or renunciation of a certain act in default of his
duties is punished with imprisonment for a period not exceeding
five years and/or a fine not exceeding KD1,000. If the
performance or renunciation of the act is ‘rightful’, the penalty is
imprisonment for a period not exceeding three years and/or a
fine not exceeding KD225.
25. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
•• What would be considered “rightful” would be determined by
the Kuwait courts.
•• In any investigation before the OPP or the Police Department,
every person detained by the police or held in custody has the
right to be informed in writing of the reasons for his detention.
An individual accused before any judicial or quasi-judicial
tribunal has the right to counsel.
•• Under Article 42, in all cases, the amounts paid by the briber or
the intermediary as a bribe are confiscated. If the briber is
released from the penalty, any amounts confiscated from him
are refunded to him.
•• Kuwait authorities recognise the concept of lawyer-client privilege.
•• Article 35 of the Law 42 of 1964 on the Organization of the Legal
Profession before the Courts expressly recognises that lawyers
must protect clients’ secrets.
27. Do the relevant authorities have powers to
freeze properties which may be proceeds of an
ABC offence pending conclusion of their
investigation?
SANCTIONS FOR WRONGDOING
26. What disciplinary sanctions/sentences may
these authorities impose?
•• Yes. The OPP has the authority to order the freezing of cash or
assets which they consider to be evidence or proceeds of a
crime. Interested parties would have to file a case in the Kuwait
courts to lift or set said order.
•• The SAB may constitute a Disciplinary Tribunal to receive and
assess evidence of financial deviation, render a decision in
respect of the guilt of the accused and impose penalties.
28. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• The OPP and Police Department may arrest and hold suspects
in custody during the investigation but they do not have the
authority to punish or impose penalties; this power rests with
Kuwaiti courts.
•• No.
•• Under Article 35 of the Penal Law, a term of imprisonment not
exceeding 10 years and a fine equal to twice the value given or
pledged, but not less than USD200, shall be imposed on any
public employee who may request or accept for himself or
others a pledge or grant to perform or to abstain from
performing his work.
29. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation? (If so, what form should
the disclosure take and what details should be
included?)
•• The provisions of this Article are applicable even if the act
•• No. The disclosure to the employer/public body concerning the
referred to is not included within the duties of the public
details of the gift or event or entertainment offered would not
employee’s post should he challenge or purport the same
erroneously. Likewise, the provisions of this Article shall be
negate potential liability under the relevant legislation. The
parties who accept the gift or event or entertainment offered in
28
HERBERT SMITH FREEHILLS
Kuwait
consideration of doing or refraining from an act related to the
employee’s public duties would still be liable under the relevant
provisions of the Penal Law.
•• According to the authorities, in general, the person offering the
bribe would not be penalised in cases where he/she disclosed
the bribe to the authorities voluntarily even after the bribe was
already paid. However, the governmental employee (person
receiving the bribe) would be penalised.
30. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through? (How long would that take? Can it
be done retrospectively?)
•• No. There is no such procedure or practice to obtain written/
signed acknowledgement from the relevant supervisory level of
the public body/state that shows that they are aware of the
advantage offered to an employee or any such official approval.
31. Are there provisions for defendants to appeal
against any enforcement action/prosecution
taken against them?
•• Yes. If a judgment or arrest order is issued in absentia, an
objection may be filed by the defendant before the same court
which issued the judgment/order. If the objection is rejected, the
defendant may file an appeal before the higher court. If the
judgment or order was issued under ordinary circumstances (ie
not in absentia), the defendant has the right to file an appeal
directly with the higher court, which may review the facts and
application of the law for the purpose of overturning the
judgment/order of the lower court.
REFORMS
32. Are there likely to be any significant reforms
in Kuwait in the near future?
•• We are not aware of any significant reforms planned for the
near future.
Authors
ASAR - Al Ruwayeh & Partners
Sam Habbas and Edlyn Verzola
Salhiya Complex, Gate 1, 3rd Floor
Mohammad Thunayan Al-Ghanim Street, Kuwait City
PO Box 447, Safat 13005, Kuwait
T +965 2 292 2700
F +965 2 2 45 3597
www.asarlegal.com
GERMANY
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
29
Lebanon
FRANCE
ITA
L
Y
Lebanon
SPAIN
TURKEY
TUNISIA
LEBANON
SYRIA
C
CO
O
ISRAEL
IRAQ
O
LEBANON
R
M
Lebanon has specific laws dealing with bribery in
the public sector, as well as general anti-corruption
provisions in the Lebanese Criminal Code.
ALGERIA
JORDAN
WESTERN
SAHARA
KUWAIT
LIBYA
EGYPT
SAUDI
ARABIA
MAURITANIA
MALI
THE LAW
1. What is the source of:
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
NIGER
ABC legislation and regulations?
YEMEN
SUDAN
CHAD
SENEGAL
ERITREA
The main sources of anti-corruption legislation and regulations are:
Decree Law No.112 dated 12 June 1956 governing the Organization
of Public Servants (the “Decree Law”);
•• None, by virtue of Article 15.7 of the Decree Law.
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
DJIBO
BURKINA
FASO
GUINEA
•• the Lebanese Criminal Code (the “Criminal Code”). Articles 351
et seq. apply to public servants who commit fraud or corruption;
NIGERIA
•• Any gifts, benefits or incentives of whatever nature.
•• Law No.154 dated 27/12/1999 relating to unlawful
enrichment; and
•• the United Nations Convention against Corruption (“UNCAC”),
in force since 14 December 2005 and ratified by Lebanon on 22
April 2009.
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
N
UGA
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
•• There are no exemptions in the legislation.
•• Article 15.7 of the Decree Law prohibits public servants “from
requesting or receiving, directly or through the intermediary of
another person, by reason of the function they hold, gifts,
gratifications or incentives of whatever nature.”
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
•• Public administrations may issue internal regulations or circulars
in this regard.
2. What constitutes an ABC offence in Lebanon?
•• The prohibition provided for in Article 15 of the Decree Law is
broadly worded and applies to any person through which the
public servant is acting. As such, it includes spouses and
relatives of public servants and may include companies in which
the public servant is a director and/or shareholder.
ZAMBIA
•• The acts constituting bribery or corruption are those whereby a
public servant requests or accepts for his personal benefit or for
the benefit of third parties, a gift, a promise or any other
advantage in order to perform a lawful or unlawful act.
ZIMBABWE
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
•• Gifts made to the government are governed by terms specified
in the relevant laws and their acceptance is subject to decrees
issued by the government.
•• There are no such statutory defences in the legislation.
•• As regards politicians, a distinction should be drawn between:
i. those holding a public office (such as members of Parliament)
to which Article 15 of the Decree Law applies; and
ii. those who do not hold a public office to which Article 15 does
not apply.
D
A
TOGO
SIERRA
LEONE
ETHIOPIA
CÔTE
D'IVOIRE
R
E
P
U
B
LIC OF
SOUTH
SUDAN
GHANA
CENTRAL AFRICAN
REPUBLIC
LIBERIA
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
EQUATORIAL GUINEA
SÃO TOMÉ AND PRÍNCIPE
RWANDA
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMO
M
O
Z
A
M
MADAG
A
S
C
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
30
HERBERT SMITH FREEHILLS
Lebanon
•• Associations of any nature may receive gifts and donations but
they remain subject to the control of the Ministry of Interior.
REGULATION OF ACTIVITIES
14. What are the main bodies responsible for
investigating and combating bribery and
corruption in Lebanon?
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• There are many bodies in Lebanon responsible for investigating
and combating bribery and corruption committed by public
servants.
•• In addition to the Decree Law, which prohibits corruption by
public servants, Article 354 of the Criminal Code imposes
sanctions for employees in the private sector. Under Article 354
of the Criminal Code, both the offeror and the offeree may be
subject to a fine ranging between LL100,000 to LL200,000
(approximately USD67 to USD144) and/or imprisonment of
between two months and two years.
•• The main bodies responsible for investigating and combating
bribery and corruption are the Public Accounts Overseeing
Court (“PAOC”), the Central Inspection Body, the Judicial
Inspection Body and the Public Prosecution Office.
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
•• The Decree Law also provides for a Disciplinary Council, with
authority to impose disciplinary sanctions on public servants
who have intentionally or by negligence breached their
obligations, in particular the obligations provided in Articles 14
and 15 of the Decree Law. Disciplinary actions do not prevent
the commencement of legal proceedings against public servants
before civil or criminal courts.
•• There is no definition per se of public bodies. A public body is
either a public person (such as the Lebanese Republic or the
municipalities) or a public administration, as opposed to private
persons.
•• The legal regime of state-owned/controlled companies is
determined on a case-by-case basis having regard, among other
things, to specific regulations applying to them.
•• In addition to the above-mentioned bodies, there are other
bodies relating to the army commandment, the General
Directorate for the Public Security and the General Directorate
for the Internal Security Forces, which are responsible for
investigating bribery and corruption committed by persons
under their authority.
•• Article 350 of the Criminal Code defines public servants as
follows: “any servant in public administrations and institutions, in
municipalities, in the army, in the judicial authorities and any worker
or employee of the Republic of Lebanon and any person appointed or
elected to perform a public service with or without compensation.”
15. What does each of these authorities
investigate?
•• The PAOC is responsible for investigating cases involving public
assets and assets deposited in the state’s treasury.
11. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• The Central Inspection Body is responsible for investigating acts
committed by servants of the public sector where such acts
would be punished by administrative and disciplinary sanctions.
•• The laws and regulations in force define the obligations to be
complied with by public servants, including in the field of
corruption. Public administrations may issue internal regulations
or circulars in this regard; however, these regulations and
circulars are not made public.
•• The Judicial Inspection Body is responsible for controlling acts of
judges, court clerks and any person serving within the Ministry
of Justice.
•• The Public Prosecution Office (including the public prosecutor
responsible for financial matters) handles all cases transferred
to him by the above-mentioned bodies and is vested with the
power to prosecute any case involving corruption or fraud.
12. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
•• A Special Investigation Commission (“SIC”) to conduct
money laundering was established by Law No.308 dated
20 April 2001.
•• A public servant has a duty to inform the relevant authorities if
he becomes aware of any suspected corruption. Article 399 of
the Criminal Code provides that: “Every public servant who has
failed to inform, or postponed informing, the competent authorities
about a felony or a misdemeanour he becomes aware of during the
performance of his duties shall be sanctioned by a fine”.
16. Do the authorities described above have the
same powers of investigation?
•• The bodies described above enjoy similar powers of
investigation by Article 16 of the Central Inspection Law dated
12/6/1959 (the “Central Inspection Law”), Article 68 of the law
governing the Organization of the Public Accounts Overseeing
Court and Article 111 of the Judicial Courts Law.
13. Do the domestic ABC regulations have
extra-territorial effect? (Is bribery of foreign
public officials prohibited?)
•• They are entitled to review all documents, files and information
in the departments subject to their investigation, to examine
public servants and require any person to testify.
•• Lebanon is party to UNCAC, having ratified the Convention on
22 April 2009. UNCAC provides that the signatories must adopt
such legislative and other measures as to prevent bribery of
foreign public officials. To our knowledge, the Lebanese
•• The Special Investigation Committee, which is an independent
body with judicial status established at the Central Bank of
authorities do not expressly refer to UNCAC when dealing with
Lebanon in charge of investigating money laundering (without
bribery and corruption.
being under the authority of the Central Bank) was, by Law No.
32 dated 16/10/2008, specifically granted the right to lift
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
31
Lebanon
banking secrecy and freeze bank accounts for the purpose of
applying the laws and treaties relating to the fight against
corruption, in particular UNCAC.
president of the civil service council, the president of the Public
Accounts Overseeing Court and the public prosecutor attached to
the Public Accounts Overseeing Court if the case involves
financial matter.”
17. What actions may these bodies take in
exercising their functions?
•• In addition, Article 59 of the Decree Law provides that the
meetings of the Disciplinary Council shall remain confidential.
•• These bodies may impose administrative and disciplinary
sanctions on the public servant, as well as transfer the case to
the public prosecutor for prosecution of the public servant in the
criminal courts.
•• Articles 87 and 113 of the Judicial Courts Law require each of the
members of the Disciplinary Council and the members of the
Judicial Inspection Body to keep the investigation process
confidential.
18. What are the powers of arrest and detention
of the relevant authorities?
23. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
•• The public prosecutor may arrest the public servant depending
on the type of punishment sanctioning the crime. The other
bodies do not have powers of arrest and detention.
•• Nothing prevents the use of the information obtained by these
regulatory bodies in the course of their investigations.
19. What is the jurisdictional reach of these
powers?
•• Lebanese authorities do not have the power to conduct
investigations overseas. If an act sanctioned by the Criminal
Code is committed overseas, Lebanese courts may have
jurisdiction if certain conditions are met.
24. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
•• The Lebanese Criminal Court may have jurisdiction over, and
apply Lebanese law in respect of, a misdemeanour or felony that
is committed by Lebanese nationals outside the Lebanese
territory provided that: (i) any such crimes are punishable under
Lebanese law; (ii) the crime is punishable by more than three
years under Lebanese law; and (iii) the law of the country where
the criminal act is committed does not punish the act.
•• During the investigation, a public servant may be assisted by his
lawyer or by a public servant having the same grade (Article 62
of the law governing the Organization of the Public Accounts
Overseeing Court, Article 59 of the law governing the
Organization of Public Servants and Article 87 of the Judicial
Courts Law). Communications between the public servant and
his lawyer are covered by professional secrecy.
•• Further, the Lebanese Criminal Court may have jurisdiction over,
and apply Lebanese law in respect of crimes committed by
Lebanese public servants outside the Lebanese territory if the
crime was committed while exercising their functions or in the
framework of the exercise of their functions.
SANCTIONS FOR WRONGDOING
25. What disciplinary sanctions/sentences may
these authorities impose?
20. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
•• The above-mentioned authorities may impose fines,
admonitions, a reduction in salary, delay promotion, suspend
without compensation, demote, dismiss and revoke.
•• The above-mentioned bodies may be assisted by the police in
the course of their investigations in order to gather information.
21. How do the relevant regulatory authorities
interact with overseas regulators?
•• Criminal courts may also sentence the public servant to
imprisonment and/or impose fines. Depending on the type of
offence committed, the minimum fine may be twice the amount
received or accepted or twice the amount offered or promised to
commit the offence. The length of imprisonment may be
between two months and two years.
•• The procedure for interacting with an overseas regulator is set
out in applicable international treaties entered into between
Lebanon and the country to which the overseas regulator
belongs; for instance, UNCAC.
26. Do the relevant authorities have powers to
freeze properties which may be proceeds of an
ABC offence pending conclusion of their
investigation?
22. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
•• The relevant regulatory authorities have the power to freeze and
attach properties which may be proceeds of a bribery/
corruption offence pending conclusion of their investigations.
•• Article 17 of the Central Inspection Law provides that, “all
inspectors are obliged to keep confidential the investigation process.
They are not allowed to disclose information in connection with the
progress and results of the investigation, except to the competent
•• Subject to enforcement of a decision rendered in Lebanon by the
local courts of the relevant jurisdiction, the relevant regulatory
authorities may freeze assets outside of Lebanon.
ministers, the president of the central inspection administration, the
32
HERBERT SMITH FREEHILLS
Lebanon
27. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
REFORMS
31. Are there likely to be any significant reforms
in Lebanon in the near future?
•• It is not possible to enter into a settlement. It is, however,
possible to exempt the public servant from a sanction if the
public servant attempted, but failed in, the act constituting the
offence or if it appears that the public servant could not possibly
be aware of said offence at the time he committed it or if the
public servant committed the offence for the benefit of public
interests or for the purpose of preventing harm to be caused to
him (provided such harm is certain). However, once the
investigation process has ended, no settlement can be made.
•• No significant reform is anticipated in the near future.
•• It is hoped that the new Anti-corruption Commission Law will
encourage more whistleblowers to step forward and report acts
of bribery and corruption.
28. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
•• No.
29. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
•• It would not be possible to obtain such a written/signed
acknowledgement.
30. Are there provisions for defendants to
appeal against any enforcement action/
prosecution taken against them?
•• Yes. The decisions issued against a public servant may be
appealed in accordance with the procedures set forth in the
relevant laws and regulations.
•• Decisions of the criminal courts can be appealed before the
competent Court of Appeal and decisions of the Court of Appeal
may be challenged before the Cour de Cassation (the Supreme
Court). Appeals of administrative decisions follow specific rules
which vary depending on the case. However, in general, the last
resort is challenge before the State Council.
Author
Issa El-Khoury Law Office
Marwan Issa El-Khoury
Badaro Street
Nadim Comair Building
Beirut
Lebanon
T +961 1 386 690
SPAIN
TURKEY
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
33
TUNISIA
Oman
LEBANON
SYRIA
ISRAEL
IRAQ
IRAN
Oman
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
QATAR
SAUDI
ARABIA
UAE
OMAN
Oman has a number of specific laws dealing with
bribery in the public sector.
NIGER
YEMEN
SUDAN
CHAD
ERITREA
DJIBOUTI
REPUBLIC OF
SOMALILAND
NIGERIA
THE LAW
1. What is the source of:
•• The State Institutions Law
ABC legislation and regulations?
•• The Anti-corruption Law
•• The Omani Penal Code - Law RD 7/2018 as amended (the
“Penal Code”)
2. What constitutes an ABC offence in Oman?
N
UGA
•• The Basic Law (Constitution) promulgated by RD 101/1996, as
amended (the “Basic Law”)
•• Bribery is defined in the Penal Code as the acceptance of money,
gifts, or any other benefit by any government official, to perform
a lawful function of his post; to omit to perform it; or to violate
one of their functions (which also includes the giver/offeror of
the bribe, gift or other benefit).
•• The Protection of Public Property and Avoidance of Conflict of
Interest Law - Law RD 112/2011 (the “Anti-corruption Law”)
•• The State Financial and Administrative Monitoring Institution
Law – Law RD 27/11 and RD 111/2011 (the “State Institutions
Law”)
•• The Civil Service Law – Law RD 120/2004
•• The Tender Law – Law RD 36/2008, as amended
•• The Public Prosecution Law – Law RD 92/99
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
ZAMBIA
•• The Civil and Commercial Procedure Code – Law RD 29/02, as
amended
•• There are no statutory defences under the relevant legislation.
•• The Law of Combating Money Laundering and Terrorism
Financing – Law RD 30/2016 (“CMLTF ”)
ZIMBABWE
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
•• The Commercial Companies Law – Law RD 4/74, as amended
•• The Banking Law – Law RD 114/2000, as amended
•• In the absence of specific statutory guidance on point, it is our
•• The Capital Market Authority (“CMA”) Code of Corporate
Governance issued by the CMA that came into effect in July
2016 (the “CCG”)
•• The United Nations Convention against Corruption (“UNCAC”),
ratified by RD 64/2013, although not yet implemented into law
•• The Organisation for Economic Co-operation and Development
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, ratified by RD 41/2016,
although not yet implemented into law
view that gifts which are of a reasonable value, which could be
construed as customary in the relevant context, and which are
commensurate with the rank (position) of the government
official concerned (so as not to raise any suspicion of undue
influence or other impropriety), would not be in breach of ABC
legislation (which is the generally accepted benchmark).
Examples would be complimentary items such as lighters, pens,
calendars, mugs, clocks, diaries, consumable items such as
chocolates etc with a company logo imprinted on it, which could
be of a value ranging between OMR5 and OMR25 (c. USD13 to
USD65) for example. Giving cash gifts and valuable items such
as precious metals (platinum, gold, silver, etc) and precious
stones (diamonds etc), jewellery, luxury watches, designer bags
etc. to government officials is prohibited.
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
•• Furthermore, if any company wished to sponsor a government
official at some form of training programme, or invite such
•• The Penal Code
official to a special event, as a matter of best practice, that
•• The Civil Service Law
company should first send such invitation to the head of the
relevant department, so that the head could nominate the
•• The CMLTF
D
A
TOGO
ETHIOPIA
R
E
P
U
B
LIC OF
SOUTH
SUDAN
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
A
RWANDA
SEYCHELLES
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMOROS
M
O
Z
A
M
MADAG
A
S
C
A
R
MAURITIUS
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
34
HERBERT SMITH FREEHILLS
Oman
relevant officials who would participate. Offering meals at hotels
etc to government officials should be in accordance with the
business entertainment policy of the relevant company.
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
has been defined very broadly. A direct advantage would include
any benefit which the government official concerned would
enjoy such as receiving a bribe, accepting an expensive gift
which would leave the recipient in a position where they would
need to view the grantor of such bribes or gifts with a favourable
eye vis-à-vis others. Examples of an indirect advantage would be
where a government official would be in a position to direct a
contract to one of their first-degree relatives (ie spouse, parents,
and children) etc, whereby he could gain an indirect benefit.
•• Any gift or benefit that is offered to any individual/official in an
effort to affect their decision-making in relation to the
performance of their duties. This may take the form of an
'extravagant' gift/entertainment/advantage in relation to the
position/designation of the government employee and one
which is also not made through official channels (ie one which
the supervisor/reporting officer may not be aware of). Also,
please refer to our response to question 4 above for further
guidance.
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
•• A government official cannot act as a broker, agent or sponsor
for any entity which is connected with the government unit
where that government official works. Assisting an individual or
a company with the intention of obtaining government approval
in favour of that individual or company is considered prohibited
brokerage activity. Government departments are restrained
from entering into contracts or otherwise dealing with any
commercial enterprise in which a government official has an
interest without prior authorisation. A government official is
barred from combining their official position with any work or
employment in the private sector, which may be of either a
permanent or temporary nature, unless the government official
has obtained prior authorisation. A government official and their
children cannot have any share in a profit earning entity which is
directly connected with the official unit where that government
official is employed.
•• There are no specific provisions to this effect under Omani law.
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
•• Every real or movable property which is owned by a government
company constitutes public property. Public property is
inviolable and must be protected. It should only be disposed of
in a manner which is in accordance with the law. Government
officials are required to prevent the abuse of public property.
Government officials are prohibited from utilising public
property for personal purposes or for any other purpose for
which they are not allocated.
•• There are no specific legislative provisions covering gifts/
entertainment/advantages which are given to spouses/relatives
of public officers/civil servants, save for the legislative
provisions given below.
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
•• Article 209 of the Omani Penal Code states that "any public
official, who accepts from a person money or benefit for the
purpose of a reward and without previous agreement, after he
performs to that person one of the functions of his post or omits
performance of one of its functions or violates one of its duties,
shall be punished with imprisonment extending from three
months to three years and with a fine of not less than what was
given”.
•• There are no specific provisions governing charitable
contributions to the Government and/or politically exposed
persons.
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• A government official is defined in the Anti-corruption Law as
“any person who occupies a government position or assumes a
permanent or temporary job in a unit of the State administrative
apparatus whether with or without financial consideration. The
members of the Oman Council, representatives of the
Government in companies and the workers in companies wholly
owned by the Government or in which the Government
contributes a share exceeding 40% of its capital”.
•• Companies in which the government owns more than 40% of
the share capital (a “Government Company”) are governed by
the Anti-corruption Law. The Penal Code, the Basic Law of the
Sultanate of Oman (the “Basic Law”) and the Anti-corruption
Law prohibit the giving of a bribe, gift or benefit to any
government official.
•• The ABC laws would also apply to the grantor of the relevant
bribe, gift or benefit to the government official regardless of
•• The Anti-corruption Law further states that any government
official is prohibited from exploiting their position or work to
whether such entity/person is from the private/public sector,
achieve an advantage for themselves or for others or the use of
their influence to facilitate another, obtaining an advantage or
preferential treatment. An advantage includes an advantage
procured in any form, whether direct or indirect. An advantage
and would be ordered to pay a fine and/or serve a prison
sentence upon being convicted of such offence.
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
35
Oman
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
12. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• While the Civil Service Law does not mention bribery per se, it
states that “accepting any kind of gift or remuneration or
commission” that affects an employee's performance of his
duties is prohibited.
•• A public body is a ministry or a unit of the government that
enjoys an independent legal personality. This would include
state-owned/state-controlled companies. Please also refer to
the definition of a government company from the
Anti-corruption Law in our response to question 9 above.
•• A civil servant is a person who is employed by any of the units of
the administrative apparatus of the government.
•• It is our view that various ministries and/or government
departments are likely to issue internal regulations applicable to
public officers/civil servants to regulate their conduct with a
view to complying with prevailing ABC legislation (although such
regulations are not available in the public domain).
•• The Penal Code defines government officials as:
i. any person who is appointed by the Sultanate or the Omani
government
ii. members of Oman Council (the State Counsel & Majli Al
Shura) and members of the Municipality Councils
iii. any person delegated or elected to carry out a public service
with or without remuneration
iv. representatives of the government in companies and
employees of companies fully owned by the government, or
the companies in which the government holds more than
(40%) forty percent of its share capital; or
v. members of the boards of directors of public utility private
associations.
13. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
•• Any person or entity that has a duty to disclose under the
CMLTF may be found guilty of a criminal offence if they obtain
information pertaining to money laundering or financing of
terrorism but fail to inform the competent authorities.
14. Do the domestic ABC regulations have
extra-territorial effect? (Is bribery of foreign
public officials prohibited?)
•• There are no specific provisions under Omani law which relate
to the bribing of a foreign public official. For extra-territorial
effects of domestic legislation, please refer to question 20.
•• The Basic Law covers government ministers and
undersecretaries (those terms are not defined). Article 53 of the
Basic Law provides that "members of the Council of Ministers
shall not combine their ministerial position with the
chairmanship or membership of the Board of any joint stock
company. Nor may the government departments of which they
are in charge have dealings with any company or organisation in
which they have an interest, whether direct or indirect. They
should be guided in all their actions by considerations of national
interest and public welfare and should not exploit their official
positions in any way for their own benefit or for the benefit of
those with whom they have special relations". Nonetheless,
several government ministers are appointed as board members/
chairmen of various government companies.
REGULATION OF ACTIVITIES
15. What are the main bodies responsible for
investigating and combating bribery and
corruption, in Oman?
•• The State Financial and Administrative Monitoring Institution
(“SFAMI”)
•• The Ministry of Legal Affairs (“MOLA”)
•• The Capital Market Authority (“CMA”)
•• The National Committee for Combating Money Laundering and
Financing of Terrorism (“NCCMLFT”) under the aegis of the
Central Bank of Oman (“CBO”) (which is a committee appointed
by the CBO pursuant to the provisions of the CMLTF)
•• The Anti-corruption Law covers government officials and
defines them as any person holding a government position or
working for the government, whether on a permanent or
temporary basis, whether paid or unpaid. Please refer to the
definition of a government official given in the Anti-corruption
Law in our response to question 7 above.
•• The National Center for Financial Information (“NCFI”)
•• The Public Prosecution Office
11. Would members of the Omani royal family be
considered public officials by virtue of the fact
that they are members of the royal family?
16. What does each of these authorities
investigate?
•• SFAMI: The SFAMI is a government institution that has
administrative and financial autonomy. The SFAMI has assumed
the duty of financial and administrative monitoring of assets
•• It is our view that members of the Omani royal family would only
be considered government officials to the extent that they hold
public office (please refer to the definition of a government
owned by the state or subject to its management or supervision,
official in the Penal Code and Anti-corruption Law given above).
as well as the performance of those bodies specified in the
SFAMI's establishing law and its implementing regulations
•• MOLA: The MOLA reviews all laws (royal decrees and
ministerial decrees), international agreements and government
contracts in coordination with the relevant ministry and other
concerned government units. It also scrutinises any contract
36
HERBERT SMITH FREEHILLS
Oman
committing the government to expenditure of over OMR
500,000 (USD 1.3 million) and takes any other steps necessary
to safeguard the interests of the government in implementing
contracts which the government is a party. The MOLA may also
be requested to render legal opinions and issue officially
approved interpretation of royal decrees, ministerial decisions
and regulations.
•• CMA: The CMA is the capital markets and insurance regulator
in Oman established under the Capital Market Law.
•• NCFI: The NCFI is under the supervision of the Inspector
General of Police & Customs. It is authorised to receive, request
and analyse reports and information on suspicious transactions
related to terrorism financing or money laundering.
any relevant authority in a foreign country with whom Oman has
an approved treaty or on the basis of reciprocal treatment),
conduct investigations and interrogations. The Public
Prosecution Office may arrest someone if that person is
requested to attend an investigation and does not; or if there is
suspicion that such person may escape; or if such person was
caught in the act of committing an offence. The Public
Prosecution Office may also review records and documents and
obtain information from financial institutions, non-financial
businesses and professions, non-profit associations and bodies
and any other person to investigate facts related to
money-laundering or terrorism financing crimes and may
likewise seize such records, documents and any other papers it
deems necessary for its investigation.
•• NCCMLFT: The NCCMLFT develops national strategy, policy
recommendations, and training programmes; assesses risk and
effectiveness of protections; collects statistics from other
agencies; and issues guidance in relation to the prohibition and
combating of money laundering and the financing of terrorism in
co-ordination with the NCFI, the CMA, the Central Bank of
Oman and the Ministries of Justice, Housing, Social
Development and Commerce and Industry.
•• CMA: The CMA has the power to carry out an investigation into
any infringement of any provision of the CMA laws and
regulations and compel any person to submit a written
statement with regards to the infringement. The Executive
President of the CMA may order the interrogation of a suspect
involved in the violation of the CMA laws.
•• Civil Service Investigations: The responsible minister or head of
unit/department has the authority to launch an investigation
into a civil servant's conduct. Employees found to be guilty of
committing violations can be disciplined by an internal
disciplinary board. The penalties imposed by the disciplinary
board could range from a warning to the dismissal of the
employee, depending upon the gravity of the violation.
•• Public Prosecution Office: If any of the five institutions above
suspect a violation within their respective institutions, they may
file a report with the Public Prosecution Office, which may
conduct its own independent investigation, evaluate the merits
of the case and refer the matter for trial to the court if there is
sufficient evidence.
18. What actions may these bodies take in
exercising their functions?
17. Do the authorities described above have the
same powers of investigation?
•• SFAMI: Upon the disclosure of a financial or administrative
violation, Article 23 of the State Institutions Law authorises the
SFAMI to demand that the relevant body at which the alleged
violation occurred conducts the necessary investigation. If the
violation is criminal in nature, the Public Prosecution Office must
be notified. The SFAMI or the accused person/body have the
right to appeal the Public Prosecution Office.
•• SFAMI: The SFAMI's investigative powers include the power to:
i. enter all offices, buildings, storage spaces, factories and all
other entities subject to the SFAMI's supervision;
ii. order verbal or written answers to questions regarding
violations from senior employees; and
iii. review any documents and minutes from meetings and take
copies for the purposes of the investigation.
•• In all cases, the chairman shall notify the Public Prosecution
Office of any violation that constitutes a crime or a
suspected crime.
•• However, the SFAMI's investigative powers may not
supersede that of the court or the Public Prosecution Office, ie
if a violation is suspected to be criminal, the SFAMI ought to
report its findings to the Public Prosecution Office. Further, if
the SFAMI needs to search a given person or a private
residence, it ought to obtain prior permission to do so from
the Public Prosecution Office.
•• NCFI: As per Article 23 of the CMLTF, the NCFI must notify the
Public Prosecution Office or the competent authority of the
results of the investigation upon the existence of evidence of
commission of an offence. It may also freeze transactions it
suspects are connected to a violation of the CMLTF for a period
of 72 hours while it completes its investigation of the transaction
(Article 25). The NCFI may request the Public Prosecution
Office to order an extension of this period if more time is needed
to investigate (Article 26).
•• NCFI: The NCFI is authorised to conduct an investigation if it
receives information of a suspicious transaction. The NCFI has
the power to obtain information from reporting authorities
including any information or documents relevant to the reports
it receives and any other information it deems necessary to
carry out its duties. The NCFI must refer the information it
receives and results of its analysis to the Public Prosecution
19. What are the powers of arrest and detention
of the relevant authorities?
•• The above-mentioned authorities have not been granted powers
Office or other competent authority if it determines there is
of arrest and detention (except for the Public Prosecution Office,
sufficient reason to suspect criminal proceeds or a connection
with money laundering or terrorism financing.
as described above). Only the competent courts are vested with
the powers to issue orders for arrest and detention.
•• The Public Prosecution Office: The Public Prosecution Office
has the power to apply for a court order to seize or freeze the
assets of those suspected of money laundering or
terrorist-financing activities (this could even be at the request of
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
37
Oman
20. What is the jurisdictional reach of these
powers?
23. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
•• Any Omani that commits a felony or misdemeanour whilst
outside of Oman would be punishable under the Omani Penal
Code, provided that he has not already been tried and sentenced
under the laws of the state in which the act was committed.
•• Yes, the confidentiality of banking transactions and professional
confidentiality. Article 70 of the Banking Law prohibits any
government agency or person from making a direct request to a
licensed bank to disclose any information relating to a customer.
Any disclosures relating to customer information must be made
with the customer's prior consent (or a general consent
obtained from a bank customer to deal with that customer's
banking business).
•• While the Omani Penal Code generally applies to offences
committed within Oman's territorial borders, the Penal Code
also applies to anyone who commits an offence abroad (1)
affecting the security of the state, its financial bonds or forging
its official documents and (2) forging, counterfeiting or imitating
the Omani currency or metallic coins with the intention of its
circulation, or bringing it in or taking it out of the state. The
Omani Penal Code applies as well to Omani citizens who have
committed an act abroad considered to be a felony or
misdemeanour under the Penal Code, if he/she returns to the
state.
•• The CMLTF prohibits NCFI employees from disclosing
confidential information to which they have access in connection
with the performance of their duties or using such information
for other purposes. This prohibition applies both during and
post-employment.
•• Under the Civil and Commercial Procedure Code, the Omani
courts have jurisdiction over non-resident Omani citizens and
non-Omani nationals who reside or are domiciled in Oman,
excluding any actions pertaining to real estate located outside
of Oman.
24. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
21. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
•• SFAMI: If the SFAMI suspects a violation that is criminal in
nature, it should submit a report and any relevant information
relating to that violation to the Public Prosecution Office. If the
Public Prosecution Office finds this evidence to be convincing, it
can present that evidence in court.
•• As per Article 20 of the CMLTF, other governmental authorities
may cooperate with the NCFI in its performance of its functions
by providing the NCFI with reports and information from local
and international sources.
•• Generally, any legal dispute initiated by the relevant regulatory
authorities (specified above) is spearheaded by the Public
Prosecution Office.
•• NCFI: The NCFI may submit its findings and investigative
reports in respect of a violation to the Public Prosecution Office,
who may proceed to present this evidence in court. However,
the CMLTF prohibits the use of information obtained from or
provided to local authorities, international centres, or
international authorities for any purpose other than combating
money laundering and the related crimes or combating
terrorism financing.
22. How do the relevant regulatory authorities
interact with overseas regulators?
•• We are of the view that the investigative reports of the CMA and
the Civil Service Investigations may also be submitted to the
Public Prosecution Office and submitted as evidence in court,
although the relevant laws are silent on this point.
•• The CMLTF authorises the NCFI to share information with
foreign counterpart centres and authorities (provided
confidentiality rules are observed) and to enter into related
memoranda of understanding agreements. Likewise, it
authorises the NCFI, CMA, the Central Bank of Oman and the
Ministries of Justice, Housing, Social Development and
Commerce and Industry and any other judicial and security
authorities to cooperate with foreign counterparts including
providing legal and judicial assistance and extradition of
criminals (subject to the requirements of any international
agreements/treaties to which Oman is a party and reciprocity).
25. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
•• The CMLTF also empowers the NCFI to freeze transactions it
suspects are connected to a violation of the CMLTF for a period
of 72 hours while it completes its investigation of the
transaction. The NCFI may request the Public Prosecution Office
to order an extension of this period if more time is needed to
•• The CMLTF provides that any perpetrator who informs the
competent authority about the crime and the identity of other
perpetrators prior to the crime occurring or the authority
learning of the same will be exempted from penalties. The
CMLTF further provides that in the event the perpetrator reports
the crime after the competent authority has learned of the same,
investigate.
and the report leads to the arrest of any other perpetrator or
•• Oman has also recently ratified the UNCAC, the Arab
Convention against Corruption (RD 28/2014) and the Arab
Convention for Combating Money Laundering and Terrorism
Financing (RD 27/2014), pursuant to which we expect greater
confiscation of the proceeds or instrumentalities of the crime,
the court may order suspension of the reporting perpetrator’s
prison sentence.
cooperation and coordination between relevant parties.
38
HERBERT SMITH FREEHILLS
Oman
•• The Basic Law accords the accused the right to a lawyer to
defend in a court of law. The accused is innocent until proven
guilty in a legal trial which is key to exercising their right of
defence. The accused may exercise their right to remain silent as
a defence. The Basic Law also guarantees those without the
financial capacity the means to resort to justice and to defend
their rights. The right to bring litigation in Oman is guaranteed to
all people.
i. a financial penalty ranging from a minimum of
c. USD260,000 and not exceeding the amount subject of the
crime;
ii. a temporary or permanent ban from engaging in commercial
activity in Oman;
iii. closure of the location used in commission of the crime; and/
or
•• A lawyer cannot be present during an interrogation with an
investigating authority, such as the Public Prosecution Office
(although the lawyer will be permitted to speak to his client
outside of those interrogations). Legal professional privilege is
recognised in the Advocacy Law.
iv. liquidation or appointment of a receiver to manage the
entity’s funds.
•• Any person who initiates, participates, instigates or assists in
committing money laundering or terrorism financing will receive
the same punishment as the perpetrator of the crime.
SANCTIONS FOR WRONGDOING
26. What disciplinary sanctions/sentences may
these authorities impose?
•• SFAMI: The penalty for hindering this institution's members
from their auditing duties, concealing information or data,
•• The penalties under the CMLTF will be doubled if:
i. the crime is committed through an organised group;
ii. the perpetrator abused his or her power or influence to
commit the crime; and/or
iii. the crime is a repeat offence.
providing misleading data or not responding/delaying a
response to reports in connection to the SFAMI's monitoring
without due cause is:
•• Without prejudice to the rights of bona fide third parties, in the
i. a prison sentence for a period of not less than six months and
not exceeding one year; and/or
case of conviction for violation of the CMLTF, the court may also
order confiscation of the related funds, proceeds, revenues and
interests, instrumentalities, or the equivalent value of any of the
preceding if it is not possible to locate the actual funds.
ii. a sanction ranging from a minimum of the equivalent of
c. USD2,600 and a maximum of c. USD5,200.
•• CMA: A disciplinary committee appointed by the Board of
Directors of the CMA is empowered to conduct internal
investigations and discipline entities regulated by the CMA,
(including their agents or subsidiaries) for violating the CMA
Law by:
•• NCFI: As per the CMLTF, in the event of suspecting any offence
provided for in that law, the NCFI may order the processing of a
transaction to be stopped for a period not exceeding 72 hours.
The Public Prosecution Office may, upon the request of the
NCFI, order the extension of such period for a period not
exceeding 10 days, where the revealed evidence supports the
likelihood of suspecting the transaction to be in breach of the
provisions of this CMLTF.
i. issuing reminders/cautions/warnings;
ii. issuing financial penalties ranging up to a maximum of the
equivalent of c. USD13,000;
iii. suspension from dealings in the securities market for a
period not exceeding three months; and
iv. final de-listing in the case of listed companies.
•• The CMLTF also authorises the CMA, the Central Bank of Oman
and the Ministries of Justice, Housing, Social Development and
Commerce and Industry to impose the following on financial
institutions, non-financial businesses and professions, and
non-profit associations and bodies subject to their respective
regulation:
i. an administrative penalty from an equivalent of
c. USD26,000 to an equivalent of c. USD260,000;
•• CMLFT: Committing or attempting to commit money laundering
is punishable by:
ii. replace or restrict the compliance officers, managers, board
of directors, or controlling officers and/or recruit a special
administrator supervisor;
i. a prison sentence ranging from a minimum of five years to a
maximum of 10 years and a financial penalty ranging from a
minimum of the equivalent of c. USD130,000 and not
exceeding the amount of money laundered; and
iii. temporarily or permanently suspend the entity/person from
operating in the commercial sector, profession or activity;
ii. a prison sentence ranging from a minimum of six months to a
maximum of three years and a financial penalty ranging from
a minimum of the equivalent of c. USD26,000 and not
exceeding the amount of money laundered.
iv. require guardianship; and/or
v. suspend, restrict or cancel the entity or person’s professional
licence or activity licence.
•• The crime of terrorism financing is punishable by:
i. a minimum prison sentence of 10 years to a maximum of 15
years; and
ii. a financial penalty ranging from a minimum of the equivalent
of c. USD130,000 and not exceeding the amount of money
laundered.
•• Civil Service: Penalties applicable to civil service employees are
imposed by the disciplinary committee of the relevant
department to which the employee belongs. The penalties are:
i. suspension during investigation;
ii. a warning;
iii. deduction from salary for a period not exceeding three months;
iv. deprivation of annual salary increment;
•• An entity found liable for money laundering or terrorism
financing shall be punished as follows:
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
39
Oman
v. reduction of salary;
vi. demotion; and
vii. dismissal (with or without pension).
29. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
27. Do the relevant authorities have powers to
freeze properties which may be proceeds of an
ABC offence pending conclusion of their
investigation?
•• Whilst there are no specific provisions to this effect under
Omani Law, the value of the gift would need to be
commensurate with the rank of the employee in question, in
order to avoid liability. Disclosure to the reporting officer would
also be necessary.
•• As per the CMLTF, in the event of suspecting any offence
provided for in that law, the NCFI may order the processing of a
transaction to be stopped for a period not exceeding 72 hours.
The Public Prosecution Office may, upon the request of the
NCFI, order the extension of such period for a period not
exceeding 10 days, where the revealed evidence supports the
likelihood of suspecting the transaction to be in breach of the
provisions of this CMLTF.
30. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
•• The competent court may issue an order to freeze the money
until a judgment is passed in the case.
•• This may be possible, although there are no statutory/official
•• Under Article 59 of the Omani Penal Code, the judge may, in the
case of conviction, order confiscation of the seized items which
were used in or prepared for the commission of the offence, and
the items extorted through the commission of such offence or
resulting therefrom.
approval processes for this. For example, if a public official is
being invited to an event or seminar, the invitation could be sent
through the supervisor of the relevant public official.
31. Are there provisions for defendants to appeal
against any enforcement action/prosecution
taken against them?
•• Under Article 7 of the State Institutions Law, the members of the
SFAMI shall have the judicial powers of search and seizure set
out in the provisions of the regulation.
28. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• SFAMI: If the SFAMI suspects that a body has committed a
violation that may be deemed criminal, it is required to report its
findings to the Public Prosecution Office. The defendant will
have the right to defend himself in front of the Public Prosecution
Office which will then decides whether enough evidence exists
to refer the matter to the courts. The accused body may then
submit their defence in front of the Court and challenge the
Public Prosecution Office decision.
•• CMA: The CMA's Board of Directors may, prior to commencing
an internal disciplinary enquiry, arrive at a financial settlement
with a person found to have infringed the CMA laws.
•• Under Article 71 of the Penal Code, a court may order the stay of
an enforcement order of a fine or imprisonment for a period less
than (3) three years, if:
a) The manner of the sentenced person, his background or age
or the circumstances in which the crime was committed
leads to the belief that he will not return to the commission of
a crime; and
•• CMA: The CMA's Appeals Committee, selected by the Board of
Directors of the CMA, and comprising two senior judges from
the Primary Court, will issue a decision within 30 days of the
complaint being filed. Resolutions such as launching an
investigation against a suspected violator or a disciplinary ruling
handed out by the Disciplinary Committee may be appealed at
the CMA's Appeals Committee. The decision made by the
Appeals Committee will be final.
b) The sentenced person maintains an actual place of residence
in the Sultanate.
•• The judge may make the stay of enforcement conditional on the
obligation of providing provisional bail or the obligation of
compensating the victim, totally or partially.
•• NCFI: After the NCFI investigates a suspected individual/entity's
involvement with money laundering or terrorism financing, it
must notify the Public Prosecution Office if it finds serious
violations. The Public Prosecution Office, as a precautionary
measure, may then decide to seize or freeze the funds of the
parties suspected of money laundering or terrorism financing.
The parties accused may appeal this decision by the Public
Prosecution Office in a competent criminal court.
•• A person accused of bribery has only one option in this regard
under the Penal Code. He must voluntarily report the bribe to
the authorities at any time before the bribery case against the
government officer is decided, and he may be exempted from
•• Civil Service: A civil service employee who is penalised by any
administrative disciplinary board may appeal that penalty to the
any sanctions (which is at the discretion of the court depending
Central Disciplinary Board within 30 days of having received the
on an evaluation of the facts).
•• As per Article 66 of the Civil Service Law, a special pardon may
be granted by Royal Decree.
penalty. The Central Disciplinary Board ruling is normally final.
However, exceptions have been made and employees who are
dissatisfied with the Central Disciplinary Board's ruling have
been allowed, on occasion, to appeal to the President of the Civil
Service, if that appeal is made within 30 days of the Central
Disciplinary Board's decision.
40
HERBERT SMITH FREEHILLS
Oman
REFORMS
32. Are there likely to be any significant reforms
in Oman in the near future?
RECENT DEVELOPMENTS
34. Have there been any recent high-profile
bribery/corruption scandals, allegations or
prosecutions in Oman?
•• We are not aware of any immediate reforms to the Omani ABC
laws in the near future, although we expect that some changes
will be implemented consequent to the recent ratification of the
UNCAC by Oman.
•• Yes, there have been other high-profile investigations and
convictions into allegations of bribery and corruption in
corporate entities in Oman in recent years. A number of
employees in private companies and state-owned companies
were convicted and sentenced in bribery/corruption
prosecutions.
PUBLIC PROCUREMENT
33. Are there any specific parts of the Tender
Law, or other procurement laws, that refer to
bribery/corruption?
•• The Tender Law and the central Tender Board have been
established with a view to promoting the principles of
transparency, equal opportunities and fair competition. There
are no express provisions in the Tender Law (which is the
primary procurement law in Oman) which refer directly to
bribery or corruption. However, some provisions in the Tender
Law (below) aim to eliminate conflicts of interest so that the
principles of transparency and fair competition can be upheld in
public tenders and reduce the likelihood of corruption.
•• Employees of entities subject to the provisions of the Tender
Law, their spouses and relatives up to the second degree, are
prohibited from directly or indirectly submitting tenders or
offers separately to such entities (the “Prohibited Persons”).
•• Furthermore, without prejudice to the Anti-corruption Law, a
contract pursuant to a public tender cannot be concluded with a
Prohibited Person other than for the purchase of writing and
works of art created by such a Prohibited Person or for the
performance of the same by that person, provided that it is
approved by the head of the relevant entity and the value of the
contract is capped at a maximum of the equivalent of USD
13,000. Should the value of the contract exceed this, the
approval of the Tender Board will be required.
•• The Tender Law also prohibits contractors and consultants who
have a direct or indirect common interest in any project from
participating in the works related to such project.
•• The Tender Board may decide to ban a supplier, contractor or
consultancy office from dealing with the relevant government
units which are subject to the provisions of the Tender Law,
during a specified period, as the circumstances of each case may
require, in the following circumstances:
Authors
a) if incorrect information has been provided;
b) if fraudulent means have been used to obtain the contract;
and/or
c) if there has been a failure to satisfactorily perform any
substantial requirement or obligation under a previous
contract with any government unit which is subject to the
provisions of the Tender Law.
SALSO
Said Al Shahry & Partners
Kristi Willie
Thamer Al Shahry
•• If a member of the Tender Board has a direct or an indirect
interest in a tender under evaluation, he must disclose such
interest to the chairman of the Board and withdraw from
participating in that evaluation process. In all cases, a member of
the Board must withdraw from the evaluation of the tender, if
such member, his spouse or one of his relatives up to the second
PO Box 1288, Ruwi
Postal Code 112
Sultanate of Oman
T +968 2 463 6999
F +968 2 463 6900
degree is the owner of the submitted tender or owns a share in
such tender, or is a member of the board of directors of the
bidding company or an employee, agent or sponsor of such
bidding company.
www.saslo.com
ITA
L
Y
SPAIN
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
41
The State of Qatar
TURKEY
TUNISIA
LEBANON
SYRIA
C
CO
The State of Qatar
O
ISRAEL
IRAQ
R
O
IRAN
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
QATAR
SAUDI
ARABIA
UAE
This is an overview of the anti-bribery and corruption
legislative framework in the State of Qatar, including the
Qatar Financial Centre (the QFC).
OMAN
MALI
NIGER
Qatar does not have specific legislation dealing with bribery and corruption.
Instead, there are relevant provisions across a broad range of legislation,
particularly the Penal Code (Law No.11/2004), which defines and
criminalises bribery and includes some anti-corruption provisions.
YEMEN
SUDAN
CHAD
ERITREA
DJIBOUTI
BURKINA
FASO
REPUBLIC OF
SOMALILAND
Qatar also has a virtual economic free zone, the QFC, which operates as a
financial and business hub and which has been granted partial authority to
self-legislate in civil and commercial areas (but not criminal law).
NIGERIA
N
UGA
THE LAW
1. What is the source of:
ABC legislation and regulations?
•• The State of Qatar does not have specific ABC legislation. The
primary sources of relevant legislation in Qatar are contained in:
•• Article 42 of the Labour Law prohibits any worker from
accepting gifts, remuneration, commission or sums from a third
party other than their employer. Article 119 contains a blanket
prohibition on workers organisations (as defined in the Law)
accepting any gifts or donations without the approval of the
relevant ministry.
Law No.11/2004 Issuing the Penal Code (the “Penal Code”);
Decree No.17/2007 Ratifying the UN Convention against
Combating Terrorism;
Law No.8/2009 on Human Resources Management (the
“HR Law”);
Law No.14/2004, as amended, on the promulgation of the
Labour Law (the “Labour Law”); and
Law No.4/1995, as amended, concerning the State Audit
Bureau (the “SAB Law”).
•• Article 19(1)(K) of the QFC Employments Regulations
(Regulation No.10/2006) prohibits employees of QFC
authorities or entities or institutions subject to the jurisdiction of
the QFC from accepting gifts, remuneration, commission or
sums in respect of their performance of their duties, unless
consistent with the terms of their employment.
ZAMBIA
2. What constitutes an ABC offence in Qatar?
ZIMBABWE
The Qatar Constitution
•• The Qatar Constitution (Article 55) states that public funds are
sacrosanct and that the protection of them is a duty imposed
upon everyone in accordance with the law.
•• As stated above, the criminal laws and sanctions of the State
continue to apply within the QFC. Accordingly, the relevant
provisions of the Penal Code concerning anti-bribery and
corruption will be applicable within the QFC. In addition, there
are some relevant rules and regulations within the QFC's
legislative framework, such as the Conduct of Business
Rulebook and Employment Regulations in connection with the
assessment of gifts, referrals and inducements.
•• The Constitution also contains provisions prohibiting ministers
from misusing their official positions to benefit their own
interests (Article 128).
The Penal Code
•• Articles 140-147 of the Penal Code contain provisions relating to
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
the bribery of public officers as well as private sector employees.
The provisions also apply to any intermediaries who are involved
in the transfer of a bribe between the briber and the recipient.
•• A public officer who requests or accepts a bribe, directly or
indirectly to benefit himself or for the benefit of another party, in
•• Article 123 of the HR Law contains specific provisions relating to
the acceptance by employees of gifts, donations, grants or
consideration for an act or for abstaining from carrying out an
money in connection with their employment. This Law applies to
act which is within the remit of his office, or which he believes or
pretends is within the remit of his office, is considered a receiver
all employees who are classified as civil servants of ministries,
governmental organisations, public authorities and institutions.
D
A
TOGO
ETHIOPIA
R
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P
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LIC OF
SOUTH
SUDAN
GHANA
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
A
EQUATORIAL GUINEA
RWANDA
SEYCHELLES
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMOROS
M
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MADAG
A
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C
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MAURITIUS
BOTSWANA
LESO
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ANGOLA
ANGOLA
42
HERBERT SMITH FREEHILLS
The State of Qatar
of a bribe, which is a criminal offence subject to the sanctions
provided in the law. The bribe may take the form of money,
another benefit or a promise. The law also expressly states that
a prohibited benefit includes the proceeds gained from the sale
of movable assets or real estate which are sold higher than their
true value or are purchased for a value lower than their true
purchase price, and any benefit from any contract that is
concluded between the briber and the recipient of the bribe.
fails to report the financial irregularity, is liable to disciplinary
action, as well as criminal proceedings (Article 28).
The QFC
•• As stated above, the criminal laws and sanctions of the
State continue to apply within the QFC. The QFC does not
have any additional legislation specifically criminalising
bribery or corruption.
•• Anyone who attempts to offer a bribe to a public officer in the
manner described above is also guilty of an offence under the
law, irrespective of whether the public officer accepts the bribe.
Any intermediary between the briber and the recipient of the
bribe will also be guilty of an offence.
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
•• In relation to private sector employees, any employee who
requests a bribe (being money, a benefit or a promise) for his
benefit or that of another person, without the knowledge and
consent of his employer, in return for undertaking or not
undertaking any of his duties will be guilty of an offence.
•• There are no de minimis or other similar statutory defences
under the relevant legislation.
The HR Law
•• As stated above, the HR Law applies to employees of ministries
and other governmental bodies, public authorities and
institutions (with the exception of the employees of certain
entities set out at the beginning of the Law). Article 123(10) of
the HR Law prohibits such employees from accepting gifts,
donations, gratuities, grants, cash or other gains, whether
directly or via another person, from any person in relation to any
activity related to their work in order to benefit a third party.
•• However, the Penal Code provides that a briber or their
intermediary (as the case may be) will be exempted from the
penalties for committing a bribery offence if they notify the
relevant authorities of the offence before the crime is
discovered, even if it has already been committed (Article 141).
•• A public official will not have committed a crime if (i) they were
following the orders of a superior that must be obeyed (or that
the official believed in good faith should be obeyed), or (ii) they
were enforcing the law (or believed in good faith that they were
so doing).
•• The HR Law also contains more general provisions directed at
ensuring that employees avoid any work which might present a
conflict of interest or might influence, directly or indirectly, their
own interests or the interests of any of their relatives up to the
fourth degree (eg Article 124).
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
The Labour Law
•• The legislation in Qatar does not distinguish between gifts,
entertainment or other advantages which are acceptable and
those which are not. However, we believe that many entities in
Qatar have internal policies or guidelines as to what gifts/
entertainment may be acceptable or unacceptable.
•• The Labour Law prohibits any employee from accepting any gift
or payment, other than from their employer, in connection with
their work (Article 42).
The Public Tender Law
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• The Qatar Tender Law (Law No.26/2005) provides that a public
sector contract must be revoked, inter alia, in circumstances
where the contractor has attempted directly or indirectly to
bribe a public official.
•• See above.
The State Audit Bureau (“SAB”)
•• The SAB is an independent governmental audit authority which
supervises and ensures the protection and correct allocation of
public funds and conformity with the declared financial,
accounting and administrative regulations. It has direct reporting
lines to the Head of State, his Highness the Emir.
6. Are there any exemptions, for example “grease
payments” – defined as payments made to procure
“routine governmental action” – that “do not
involve an exercise of discretion” (such as under
the FCPA), payments that “are legal in the country
in which they are offered”, and “reasonable and
bona fide expenses directly relating to the
promotion of products or services”?
•• The SAB also investigates cases of financial misconduct. It is a
•• There are no known exemptions for such payments.
crime for any staff member of the SAB or any entity which falls
under the ambit of the SAB to commit any financial irregularities,
as set out in Article 27 of the SAB Law. Such financial
irregularities include any violation of the State's finances, any
commission leading to an unjustifiable reimbursement of funds,
and any prejudice to the financial interests of the State or any of
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
the entities subject to the SAB's control.
•• Any employee who commits a financial irregularity, or
contributes to or facilitates it, aids or abets the perpetrator or
•• Although it does not expressly refer to spouses or relatives or to
companies in which a public officer or civil servant is a director
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
43
43
The State of Qatar
or shareholder, the offences in the Penal Code extend to bribes
offered to, requested by or received by a public officer on behalf
of any other person.
12. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
•• Under the Penal Code there is a general obligation to report a
crime, which would include a bribery offence.
•• There are no specific provisions addressing charitable
contributions to the Government and/or PEP-connected
local charities.
•• Although it does not involve a positive obligation to
“whistleblow” or disclose corruption, the QFC Employment
Regulations, which apply to all employees of organisations
within the jurisdiction of the QFC, provide protection for
whistleblowers. Pursuant to Article 16, a person who raises a
concern about or reports a crime in good faith is protected from
dismissal by, or any other penalty from, their employer.
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• The Penal Code applies to bribery in both the public sector and
private sector, although the provisions concerning the former
are more detailed.
•• The SAB operates a system by which employees and citizens
generally can anonymously report on fraud, corruption and
other financial contraventions. Reports may be made
anonymously through the SAB's website, by email or by post
and personal details are not required. Any subsequent
investigation will be overseen by the SAB.
10. What is the definition of a public body?
Would it include persons working in
state-owned/controlled companies? Who is a
public/civil servant?
13. Do the local anti-corruption regulations have
extra-territorial effect? (Is bribery of foreign
public officials prohibited?)
•• There is no common definition of public body across the
relevant legislation.
•• The local bribery and anti-corruption legislation does not
expressly have extra-territorial effect.
•• The concept of a public body is not found in the Penal Code.
However, Article 3 defines a “public officer” as a person
entrusted with carrying out the functions of a public authority,
including employees of ministries, government departments,
public institutions and organisations. It also provides that a
public officer specifically includes:
•• At present, there is also no specific legislation in place relating to
bribery of a foreign official.
REGULATION OF ACTIVITIES
14. What are the main bodies responsible for
investigating and combating ABC in Qatar?
receivers in bankruptcy, liquidators and sequestrators;
chairmen and members of the board of directors, managers
and all other employees of private institutions and
associations, companies and cooperative associations, if one
of the ministries, government departments, public
organisations or corporations is a shareholder therein;
anyone who carries out any work connected with a public
service under an appointment by a public officer; and
heads and members of legislative, parliamentary and
municipal councils and other employees who have public
representative capacity.
•• In addition to the police and the Qatari Public Prosecution
Office, both of which have general responsibilities in connection
with the criminal law, the main bodies responsible for
investigating and combating bribery and corruption in Qatar are
the SAB and Qatar's Administrative Control and Transparency
Authority (the “QACTA”).
•• In addition, all Qatari ministries, and government departments
have a responsibility to investigate cases of bribery connected
with their organisations and must refer suspected cases of
bribery to the SAB.
15. What does each of these authorities
investigate?
•• The HR Law applies to “government entities”, which are defined
as ministries, government bodies, public authorities and public
corporations (Article 1), and the employees of such entities.
However, there is a specific exclusion of members of the
judiciary, Emiri Diwan employees, diplomats and consular corps,
employees of Qatar Petroleum and employees of the SAB.
•• The police force may investigate any allegations of bribery
or corruption.
•• The SAB is an independent governmental audit authority.
Among other things, it investigates cases of financial
misconduct relating to state funds, and may therefore
investigate bribery and corruption allegations.
11. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• We are not aware of any specific internal regulations or codes of
conduct applicable to public officers or civil servants. However,
it is possible that individual government entities have issued
their own internal regulations or codes of conduct.
•• Under the HR Law, ministries and other governmental
organisations, public authorities and institutions have
authority to investigate suspected or reported incidents of
bribery or corruption involving their officers or employees.
Where an investigation or interrogation confirms that there is
strong evidence that an employee has demanded, accepted,
received or paid a bribe, or has otherwise been suspected of
committing a criminal offence, the matter will be referred to
the Permanent Disciplinary Committee established under the
44
HERBERT SMITH FREEHILLS
The State of Qatar
Law (see Article 140), which may investigate the matter itself
but which also has authority to refer the matter to the police
or Public Prosecution Office.
21. How do the relevant regulatory authorities
interact with overseas regulators?
•• Qatar is a party to the United Nations Convention
against Corruption.
•• The QACTA is an independent government body specifically
established under Emiri Decree No. 75/2011 (as amended by
Emiri Decree No. 6/2015) to investigate and combat corruption
within government organisations. Its authority includes
investigating bribery and corruption offences. It may also
investigate allegations concerning the activities of private
companies which provide public services.
•• In addition, Qatar has entered into bilateral mutual judicial
assistance agreements which relate to extradition, providing
assistance in criminal matters and the transfer of prisoners with
numerous countries.
•• We are not aware of any more specific arrangements by which
any of the Qatari regulatory authorities interact with their
counterparts overseas.
•• Within the QFC, any evidence of bribery and corruption
gathered during the course of an investigation will be referred by
the QFC Authority to the police or the Public Prosecution Office
as such activities are likely to constitute a criminal offence under
the Penal Code.
22. Are there any provisions requiring
investigations or information disclosed during
the course of investigations to be kept
confidential?
16. Do the authorities described above have the
same powers of investigation?
•• Article 73 of the Criminal Procedure Law provides that the
procedures related to criminal investigations and the results of
such investigations must be kept confidential.
•• The police and Public Prosecution Office have extensive
investigative powers.
•• The SAB also has broad investigatory powers in respect of
entities over whom it has jurisdiction. It may call for and review
financial records and any other documents which it requires in
order to carry out its duties properly.
23. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
•• The QATCA's investigatory powers appear to be relatively limited.
17. What actions may these bodies take in
exercising their functions?
•• The police and the Public Prosecution Office may prosecute
offences as they see fit.
•• Yes. Pursuant to the HR Law, the relevant government ministry or
department is required to not only investigate and refer any matter
constituting an offence to the police or Public Prosecution Office,
but it is also under an obligation to take any internal disciplinary
action(s) necessary. However, the HR Law provides that, where an
alleged offence is referred to the judicial authorities for a criminal
hearing, any disciplinary proceedings must be put on hold until a
decision on criminal liability has been issued.
•• The SAB may refer suspected offences to the police or the Public
Prosecution Office. It may also prosecute employees of
government organisations under its jurisdiction who are
suspected of bribery or corruption before a disciplinary board.
18. What are the powers of arrest and detention
of the relevant authorities?
24. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal professional
privilege?
•• Individuals may only be arrested by a written order issued by a
competent authority under Articles 40 and 32 of the Criminal
Procedure Law (Law No.23/2004). The judicial official must
hear any statements of the accused immediately upon his
arrest and, if there is sufficient evidence, must then refer the
accused to the Public Prosecution Office within 24 hours of his
arrest. The Public Prosecution Office must then decide within a
further 24 hours whether the arrested individual should be
released or detained.
•• Article 20 of the Criminal Procedure Law provides that the
criminal courts must assign a legal representative for any
defendant who does not have legal representation, where
requested by the defendant or the Public Prosecution Office.
•• There are no known rights that relate to privilege against
self-incrimination or legal professional privilege.
19. What is the jurisdictional reach of these
powers?
SANCTIONS FOR WRONGDOING
25. What disciplinary sanctions/sentences may
these authorities impose?
•• None of these authorities have expressly been given
extra-territorial jurisdiction to investigate or prosecute crimes.
•• Under the HR Law, where a matter is referred to the court due to
an employee or public officer committing a criminal offence in
20. Do the police and other local authorities
assist the relevant regulatory authorities in their
investigations?
connection with his employment, a government department or
ministry may take disciplinary action, including:
suspending the employee without salary while awaiting the
issuance of a decision from the courts;
•• As appropriate, the relevant regulatory authorities, the
police and the Public Prosecution Office will work together
terminating employment if convicted of a felony or
and assist with any investigations, obtaining information and
gathering evidence.
misdemeanour involving dishonesty, immoral crime or
moral turpitude;
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
45
The State of Qatar
terminating employment if convicted of a felony or
misdemeanour and sentenced to imprisonment of more than
three months.
29. Are there any provisions to appeal against
any enforcement action/prosecution taken
against them?
•• The sanctions imposed under the Penal Code include
imprisonment for a period not exceeding 10 years. In addition, in
relation to any of the bribery offences under the Code, the
offender may be subject to a fine equivalent to what he has
solicited or accepted as a bribe, provided that it is not less than
QAR5,000. In addition, any bribe received will be confiscated
from the offender.
•• The Penal Code does not address the issue of appeals against
enforcement actions or prosecutions specific to bribery offences.
However, the general principles concerning appeals would apply.
Under the Qatari court system, any decision of the Criminal
Court can be the subject of an appeal to the Court of Appeal.
•• While the HR Law provides for an appeal mechanism in relation
to a decision of the Permanent Disciplinary Committee, this
would likely not be applicable to matters of bribery and
corruption as they are criminal offences that must be referred to
the police/public prosecutor.
26. Do the relevant regulatory authorities have
powers to freeze properties which may be
proceeds of an ABC offence pending conclusion
of their investigation?
REFORMS
30. Are there likely to be any significant reforms
in the near future?
•• Under Article 126 of the Criminal Procedure Law, the Attorney
General may take action to prevent an accused person from
disposing of their assets. The Attorney General may also take
similar action against the spouse or minor children of the accused
if it is proved that the accused transferred assets to them.
•• We are not aware of any significant reforms planned as at the
date of this publication.
•• Under Article 28 of the SAB Law, the relevant authorities are
obliged to take any necessary action to recover amounts
unjustly paid, which could include bribes.
27. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• There is currently no legislation in relation to bribery of a public
official which specifically addresses or permits an enforcement
action or prosecution to be resolved through a settlement
agreement or some other similar means.
•• As bribery constitutes a criminal offence under the Penal Code,
none of the regulatory authorities mentioned above have
jurisdiction to prosecute offences of bribery and corruption.
Such matters will be referred directly to the police or Public
Prosecution Office. The Public Prosecution Office has the
discretion (based on the evidence provided) to determine
whether or not to initiate proceedings under the Penal Code.
28. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
Authors
Herbert Smith Freehills
Stuart Paterson
•• Under the Penal Code, a public officer or employee who is
offered a bribe but refuses and reports such action would not be
guilty of committing an offence. However, there is no prescribed
form or procedure set out in the code in respect of the form or
time frame within which such disclosure should be made.
Benjamin Hopps
Janine Mallis
•• Further, the Penal Code specifically provides that a public officer
shall not be subject to a penalty if he informs the relevant
authority about the offence or declares it before it is discovered,
even if it has been committed by then (see question 3 above).
Dubai International Financial Centre
Gate Village 7, Level 4
Dubai
PO Box 506631
United Arab Emirates
•• Under the HR Law, an employee may be exempted from a
penalty if they can establish that the offence was committed as
a result of executing a written order given to them by their
superior and they alerted their superior in writing to the violation
T +971 4 428 6300
F +971 4 365 3171
(see Article 125).
www.herbertsmithfreehills.com
ITA
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46
HERBERT SMITH FREEHILLS
Kingdom of Saudi Arabia
SPAIN
TURKEY
TUNISIA
LEBANON
SYRIA
Kingdom of
Saudi Arabia
C
CO
O
ISRAEL
IRAQ
R
O
IRAN
M
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
QATAR
Saudi Arabia has specific laws dealing with bribery in the
public sector, as well as various regulations. There is no
codified criminal penal code in Saudi Arabia.
SAUDI
ARABIA
UAE
OMAN
MALI
NIGER
YEMEN
SUDAN
CHAD
ERITREA
DJIBOUTI
BURKINA
FASO
REPUBLIC OF
SOMALILAND
THE LAW
1. What is the source of:
mitigating and aggravating factors; such factors would generally
be subject to the review and consideration of the judge or the
competent committee. However, such discretion would likely be
NIGERIA
ABC legislation and regulations?
limited in terms of the prescribed disciplines and penalties under
the relevant regulations.
Mainly the following:
i. Shari'ah;
ii. The National Strategy for Protecting Integrity and Combating
Corruption;
iii. The Regulation of Discipline of Officers promulgated pursuant
to Royal Decree No.M/7 dated 01/02/1391 H corresponding
to 28 March 1971 (the “Discipline Regulations”);
iv. The Anti-bribery Law promulgated pursuant to Royal Decree
No.M/36 dated 29/12/1412 H corresponding to 1 July 1992
(the “Anti-bribery Law”); and
v. The Regulation of Positions for Undertaking Public Funds
promulgated pursuant to Royal Decree No.M/18 dated
23/02/1436H corresponding to 15 December 2014G (the
“Public Funds Regulations”).
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
N
•• The Anti-bribery Law does not specify what gifts may or may
not be considered acceptable. Accordingly, any gift may be
considered acceptable if it is not given with the intention to have
the receiving public officer carry out any act, omission or breach
of duty, use his influence, or provide assistance with respect to a
government application due to his position in return.
UGA
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
•• Any gift would be considered unacceptable if it is given with the
intention to have the receiving public officer carry out any act,
omission or breach of duty, use his influence, or provide
assistance with respect to a government application due to his
position in return.
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
ZAMBIA
•• Mainly, the Anti-bribery Law.
2. What constitutes an ABC offence in KSA?
6. Are there any exemptions, for example
“facilitation payments” – defined as payments
made to procure “routine governmental action”
– that “do not involve an exercise of discretion”,
payments that “are legal in the country in which
they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion
of products or services”?
ZIMBABWE
•• Any act, omission, breach of duty, use of influence, whether
actual or alleged, or assistance with government applications by
a public official, due to his position, in return for a promise or
grant, including material and non-material advantages, to the
public official or a third party or based on a recommendation or
mediation would be considered a bribe under the
Anti-bribery Law.
•• No such payments would be considered legal under Saudi law.
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions? What considerations will be taken into
account, for example the purpose and frequency
of the gift/event, the cost to the organiser, the
value of the benefit offered to the individual?
•• The Anti-bribery Law covers gifts and advantages given to any
third person for the purpose of having the public officer carry
out any act, omission or breach of duty, use his influence, or
•• Generally, there are no exceptions under the Anti-bribery Law.
As mentioned earlier, there is no codified criminal penal code in
Saudi Arabia, although some regulations may indicate certain
provide assistance with respect to a government application due
to his position in return.
D
A
TOGO
CÔTE
D'IVOIRE
ETHIOPIA
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SOUTH
SUDAN
GHANA
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
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TANZANIA
SWAZILAND
SOUTH
AFRICA
I
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EQUATORIAL GUINEA
SÃO TOMÉ AND PRÍNCIPE
RWANDA
SEYCHELLES
E
U
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B
NAMIBIA
C
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N
G
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KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
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LAWI
COMOROS
M
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MADAG
A
S
C
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MAURITIUS
BOTSWANA
LESO
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ANGOLA
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ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
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Kingdom of Saudi Arabia
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
A public employee should:
•• protect the integrity and dignity of their job;
•• comply with manners in interacting with the public and his
superiors, colleagues and employees working under his
direction; and
•• The Anti-bribery Law does not address charitable contributions
to the Government and/or PEP-connected local charities.
•• dedicate his working hours to carry out the duties of his job
and accurately carry out the orders given to him.
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
A public employee should not:
•• misuse any power due to his position;
•• The Anti-bribery Law does not cover bribery in relation to the
private sector, it mainly covers public officials. The same applies
to the remaining ABC laws/regulations.
•• accept a bribe, as per the Anti-bribery Law;
•• accept any gifts, gratuities, etc, whether directly or through
a mediator from those who would be interested in soliciting
the assistance of the public officer; and
10. What is the definition of a public body?
Would it include persons working in stateowned/controlled
companies?
Who
is
a
public/
civil
servant?
•• disclose any secrets he obtains due to his work.
•• The Regulation of Discipline of Public Employees promulgated
pursuant to Royal Decree No.M/7 dated 01/02/1391 H
corresponding to 28 March 1971: this is the general Regulation that
•• A public official under the Anti-bribery Law includes:
any temporary or permanent employee of the state or any of
its bodies with public independent legal personalities;
an expert or arbitrator appointed by the government or any
committee with judicial authority;
any person assigned by any government body or
administrative authority to carry out a certain task;
any person working for a company or a sole proprietorship
carrying out the management, operation or maintenance of a
public facility or providing a public service, or working for joint
stock companies or companies in which the government has
shares or working for companies or sole proprietorships
engaged in banking activities and sole proprietorships engaged
in banking activities; and
the chairmen and directors of the boards of such companies
(mentioned above).
sets out the procedures and standards for investigating with public
employees before the competent committees and issuing the
decisions for implementing disciplinary measures against them.
•• The Regulation of the Prosecution of Ministers promulgated
pursuant to Royal Decree No.88 dated 22/09/1380 H
corresponding to 10 March 1961: this Regulation addresses acts
that constitute crimes that require the prosecution of ministers, the
entailed punishments for each category of crimes under this
regulation, without prejudice to any other regulations, and the
procedures for investigation, prosecution before the specialised
committee, objection to its decisions, mitigation of punishments
and pardons. According to the Regulation of Ministers, Deputy
Ministers and the Excellent Grade Officials promulgated pursuant
to Royal Decree No.M/10 dated 18/03/1391 H corresponding to
14 May 1391, the Regulation of Prosecution of Ministers applies to
ministers, deputy ministers and the excellent grade officials.
•• A public/civil servant would be any public official subject to the
Civil Service Regulations.
•• The Public Funds Regulation: in addition to addressing the
qualifications of officials occupying positions for undertaking
public funds, their compensation and rewards, and the auditing
of public funds, this Regulation addresses the crimes of
embezzlement from wasting and unjustified disposition of
public funds and their punishments.
11. Would members of the Saudi royal family be
considered public officials by virtue of the fact
that they are members of the royal family?
•• No, the members of the royal family would not be considered
public officials by virtue of that fact. Any members of the royal
family would be considered public officials if they held positions
that fit the descriptions set out in paragraph 10 above.
12. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• There are several regulations that address public employees/
•• The Regulation of the Service of Officers promulgated pursuant
to Royal Decree No.M/43 dated 28/08/1393 H corresponding
to 26 September 1973 and amended pursuant to Royal Decree
No.M/9 dated 24/03/1397 H corresponding to 15 March 1977:
this Regulation is applicable to all the officers working for the
internal security forces, the National Guard and the General
Intelligence Service. It sets out the general obligations and
restrictions on the said officers; it requires them to be
completely loyal to the King, protect the interests of the country
and the armed forces, complete their assignments with no
negligence and they should not disclose any confidential
officers and their work such as the following:
information, retain confidential documents in their possession
The Regulation of Civil Service promulgated pursuant to Royal
Decree No.M/49 dated 10/07/1397 H corresponding to 27
June 1977: this is the general Regulation that addresses the
services of public employees and sets out a general code for
their conduct as follows:
and should not accept any gifts or gratuities, whether directly or
through a mediator from those who would be interested in
affecting the officer's duties.
•• The Regulation of the Service of Citizens promulgated pursuant
to Royal Decree No.M/9 dated 24/03/1397 H corresponding to
15 March 1977: this Regulation applies to all Saudi military
employees working for the Ministry of Defense and Aviation, the
48
HERBERT SMITH FREEHILLS
Kingdom of Saudi Arabia
Ministry of Interior, the National Guard and the General
Intelligence Service. It sets out general obligations and
restrictions on the concerned employees under this Regulation,
which are similar to those set out under the Regulation of the
Service of Officers.
The Saudi Arabian Monetary Agency; and
The Capital Market Authority.
16. What does each of these authorities
investigate?
•• However, more specific internal codes of conduct and directives
may be issued internally within each ministry or government
body and those may not be available for the public.
13. Are there any laws or regulations imposing
obligations on persons to “whistleblow”
or disclose suspected corruption within
an organisation?
•• The National Anti-corruption Commission: Generally, it may
investigate financial and administrative corruption in public
works contracts and other contracts which are related to
matters of public interest and the affairs of citizens. However,
the Commission's authorities may extend to further matters
serving the country's general strategy for protecting integrity
and combating corruption in its broadest forms including
corruption under Shari'ah, which is defined as any act that is
considered to be contradictory to rightness and, thereafter, refer
the investigation of such act of corruption to the competent
body for investigating such acts.
•• There is a general obligation under Shari'ah to report crimes
according to the saying by Prophet Mohammed: “whoever sees
evil must change it.”
•• In addition, the national strategy for protecting integrity and
combating corruption encourages all members of society to
combat any form of corruption in the broadest sense, whether
under the law or under Shari'ah. In this regard, the National
•• The Control and Investigation Board: Generally, the Control and
Investigation Board (the “Investigation Board”) has the
authority to investigate violations by government, military or
public institutions' employees including (i) administrative,
financial or behavioural violations that entail discipline, (ii)
violations referred to the Investigation Board by one of the
ministries or other government bodies, (iii) crimes involving
forgery, counterfeiting or bribery, and (iv) crimes of misuse of
power/position under Royal Decree No.43 dated 29/11/1377 H
corresponding to 17 June 1958.
Anti-corruption Commission (the “Commission”) was established
to oversee the furtherance of combating corruption. The
Commission supervises the compliance of government bodies
with the national strategy, UNCAC and other relevant regulations
and circulars, and all government bodies should cooperate with the
Commission. The Commission also receives reports of corruption
offences and information and complaints regarding allegations of
government corruption from private citizens.
•• The General Directorate of Investigation: This directorate falls
under the Ministry of Interior and has a general authority to
investigate crimes and violations.
•• Article 17 of the Anti-bribery Law encourages whistleblowing,
by stating that anyone who provides information which leads to
proving bribery (which could be by way of investigation or upon
conviction in a criminal court) shall be awarded at least
SAR5,000 and not more than half of the money confiscated.
Subject to the discretion of the King of Saudi Arabia, the amount
of the reward could be higher.
•• The Bureau of Investigation and Public Prosecution (the
“Prosecutor”). This body has the general authority to investigate
all criminal acts except those that are subject to the authority of
the Investigation Board.
•• Also, the briber or intermediary can be exonerated if he reports
the offence prior to detection.
•• The Saudi Arabian Monetary Agency: The Saudi Arabian
Monetary Agency (“SAMA”) generally has the authority to
monitor bank accounts and may have the authority to
investigate suspicious transactions through bank accounts if
such transactions are suspected to violate Saudi law.
14. Do the local anti-corruption regulations have
extra-territorial effect? (Is bribery of foreign
public officials prohibited?)
•• This is not addressed by the Anti-bribery Law.
•• The Capital Market Authority: The Capital Market Authority (the
“CMA”), being the main regulator of securities business in
Saudi Arabia, has very wide powers to investigate acts that may
violate the securities regulations issued by the CMA and any
suspicious acts by 'Authorised Persons', (persons authorised to
carry out the business of securities pursuant to a licence from
the CMA).
REGULATION OF ACTIVITIES
15. What are the main bodies responsible for
investigating and combating fraud and
corruption, in KSA?
17. Do the authorities described above have the
same powers of investigation?
•• Generally, all government authorities in Saudi Arabia are
required to take measures against bribery and corruption
pursuant to Saudi Arabia's national strategy for protecting
integrity and combating corruption. However, the following
•• Except for the Investigation Board and the Prosecutor, all the
above bodies' investigation powers are limited to the acts of
ascertaining facts and gathering information and evidence as
may be necessary to be able to direct formal accusation against
bodies are mainly responsible for investigating and combating
the person being investigated and instigate questioning by the
bribery and corruption:
The National Anti-corruption Commission;
The Control and Investigation Board;
The General Directorate of Investigation;
The Bureau of Investigation and Public Prosecution;
competent authority, which would likely be either the
Investigation Board or the Prosecutor.
•• The CMA has broad powers to investigate violations to the
CMA regulations concerning the business of securities and
questioning Authorised Persons (ie persons licensed by the
CMA and subject to the CMA regulations).
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
49
Kingdom of Saudi Arabia
18. What actions may these bodies take in
exercising their functions?
21. Do the police and other local authorities
assist the relevant regulatory authorities in
their investigations?
•• All these bodies may take any necessary steps to investigate
facts and to gather information and evidence. However, the Law
of Criminal Procedure promulgated pursuant to the Royal Decree
No.M/2 dated 22/01/1435H corresponding to 25 November
2013G (the “LCP”) provides that only authorised government
bodies may question someone who is being accused of a crime,
search them and detain them for investigation.
•• Subject to the powers reserved by the Investigation Board and
the Prosecutor, as mentioned above, the police may assist the
authorities with investigations (within the limitations mentioned
in our answer to question 19 above).
22. How do the relevant regulatory authorities
interact with overseas regulators?
19. What are the powers of arrest and detention
of the relevant authorities?
•• The relevant regulatory authorities usually communicate with
overseas regulators through the competent offices of the
Ministry of Foreign Affairs and the Saudi Embassies and
Consulates in the other countries.
•• The Investigation Board and the Prosecutor are the only bodies
authorised to carry out questioning and order the arrest and
detention of a suspect.
•• Saudi Arabia has signed and ratified the United Nations
Convention against Corruption (UNCAC). In a publication on
the Committee's website, the President of the Commission
referred to Royal Decree No.M/5 dated 11/03/1434 H
corresponding to 23 January 2013, for the adoption of UNCAC,
•• However, if a person is caught in the act of committing a crime
and it is felt necessary to question that person or detain him, the
other competent bodies would have limited authority to question
the person and request his detention for up to 24 hours. In all
other cases, a court order may be obtained for the detention of
that was approved by the Council of Ministers’ decision No.62
persons and to restrict them from travelling out of Saudi Arabia.
20. What is the jurisdictional reach of
these powers?
dated 02/03/1434 H corresponding to 14 January 2013, which
completes the necessary legal requirements for adopting the
UNCAC. In this publication, the President of the Commission
mentioned that Saudi Arabia has already complied with a
significant part of the obligations set out under UNCAC, such as
issuing a strategy for the protection of integrity and combating
corruption, establishing an independent committee for
combating corruption and issuing several regulations in this
regard. There will be further obligations imposed on the relevant
government bodies (in addition to the Commission) and the
Commission shall be responsible for overseeing the
implementation of and compliance with those obligations.
•• This depends on the ties between the violating act committed
and the jurisdiction of Saudi Arabia. The Prosecutor would be
the competent authority to investigate crimes committed
overseas if Saudi courts have jurisdiction over such crimes
pursuant to the regulations of Saudi Arabia or any treaties
signed between Saudi Arabia and other countries where the
crimes have been committed.
•• There are several cooperation treaties between the Kingdom of
Saudi Arabia and other countries with respect to judicial
cooperation, protection of security and combating crimes,
including the following:
23. Are there any provisions requiring
investigations or information disclosed
during the course of investigations to be
kept confidential?
The Judicial Cooperation Treaty between Saudi Arabia
and Kazakhstan
•• Yes, Article 68 of the LCP expressly prohibits the disclosure of
the investigation procedure and/or its results.
The Security Cooperation Treaty between Saudi Arabia
and Sudan
The Memorandum of Understanding regarding Combating
Crime between Saudi Arabia and India
24. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
The Security Cooperation Treaty between Saudi Arabia and
the People's Republic of China
The Judicial Cooperation Treaty between Saudi Arabia
and Yemen
The Cooperation in Combating Crime Treaty between Saudi
Arabia and Poland
•• Yes, information obtained in an investigation may be used in
proceedings in a court of law. For any other case, this would
likely be subject to the discretion of the competent government
bodies – Article 186 of the LCP only prohibits the use of
information relating to statements and acts, based on which a
judgment has been issued by the competent court in criminal
proceedings, in any other criminal proceedings.
The Cooperation in Combating Crime Treaty between Saudi
Arabia and Italy
•• Additionally, Saudi Arabia is a member of the Gulf Cooperation
Council and the League of Arab States, whose members have
adopted agreements for judicial cooperation, reciprocal
enforcement of judgments and combating crime.
25. Are there protections available when
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege
against self-incrimination and legal
professional privilege?
•• Yes, protections are generally available under the LCP when
responding to investigations by the relevant authorities. Article
50
HERBERT SMITH FREEHILLS
Kingdom of Saudi Arabia
64 of the LCP gives the person being investigated the right to
seek legal assistance during investigations.
•• Article 102 of the LCP requires that the competent authority
carry out the investigation in a manner that does not place any
influence on the statements of the person being investigated,
and provides that the competent authority may not administer
oath or use coercion against the person being investigated.
30. In practice, is it possible to obtain written/
signed acknowledgement from the relevant
supervisory level of the public body/state which
shows that the supervisor is aware of the
advantage offered to an employee? Is there an
official approval process available or channel to
go through?
SANCTIONS FOR WRONGDOING
26. What disciplinary sanctions/sentences may
these authorities impose?
•• This is not addressed by the Anti-bribery Law and, based on our
experience, there is no official approval process or channel to go
through with respect to an advantage given to a public official.
31. Are there provisions for defendants to appeal
against any enforcement action/prosecution
taken against them?
•• Usually, these authorities would be required to refer the charges
to the competent court or committee for review, to determine
whether the accused person is guilty of the violations in
question and assess the suitable sanction/sentence. The
sanctions/sentences would depend on the seriousness of the
offence and could include imprisonment, a fine or both.
•• Yes, the LCP sets out at Chapter 7 the procedure for appeal
against judgments issued with respect to criminal offences.
Additionally, there are other regulations concerning the
procedure of prosecution and discipline of public employees/
military employees and officers before the specialised
•• The Anti-bribery Law provides maximum limits for punishment
to the giver and the recipient of a bribe and any intermediary. If a
person who has been convicted of a bribery offence commits
committees. Each regulation sets out the provisions for filing for
bribery again within five years of the date of completing his
sentence for the first bribery crime, the maximum limits for
punishment may be increased up to twice the punishment set
out under the Anti-bribery Law.
an objection against the disciplinary measures, an appeal
against the decision of the relevant committee or a request of
mitigation or pardon from the disciplinary measures.
REFORMS
32. Are there likely to be any significant reforms
in the near future?
•• Article 19 of the Anti-bribery Law provides that a national or
foreign company or sole proprietorship, for the benefit of which
bribery has been committed, may be fined up to 10 times the
amount of the bribe if its manager or one of its employees was
convicted of bribery. All considerations that may be taken into
account for determining the punishment for committing bribery
are subject to the discretion of the Saudi court judge.
•• The increased attention to combating corruption was noted with
the formation of the National Anti-corruption Commission in
March 2011 for the purpose of combating corruption and
protecting integrity, overseeing the implementation of
anti-corruption regulations, instructions and directives, and
assisting in the monitoring of corruption.
27. Do the relevant authorities have powers to
freeze properties which may be proceeds of
an ABC offence pending conclusion of
their investigation?
•• Accordingly, no significant reforms to the Saudi ABC laws are
currently planned.
•• Yes, the competent regulatory authorities would have the powers
to freeze properties and take precautionary measures with
respect to bribery/corruption offences. However, it is unlikely
that they would have such powers outside of Saudi Arabia.
PUBLIC PROCUREMENT
33. Are there any procurement laws/rules in
Saudi Arabia that refer to bribery/corruption?
28. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• This would likely be subject to the discretion of the relevant
authority and the discretion of the competent court reviewing
the criminal offence. However, the King has authority to grant
his royal pardon from judgments issued with respect to
criminal offences.
•• The Government Tender and Procurement Law promulgated
pursuant to Royal Decree No.M/58 dated 4 Ramadan 1427H
corresponding to 27 September 2006 and its Implementing
Regulation address government contracts in general. This Law
refers to bribery under Article 53 as follows: “The government
authority may withdraw the work from a contractor and rescind the
contract or carry out the contract at his expense without prejudice to
the government authority's right to claim compensation for damage
sustained as a result thereof, in any of the following events: (a) if it
has been established that a contractor attempted by himself or
through others, directly or indirectly, to bribe an employee of an
authority subject to the provisions of this Law or has been awarded
29. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
the contract by way of bribery; (b)…”.
•• This is not addressed by the Anti-bribery Law.
•• Moreover, Article 77 states that: “the contractors and government
authorities should carry out their contracts according to their
conditions, in good faith and in accordance to what is required for the
well administration of the domain and public interest; and ministries,
government departments and agencies with an independent legal
personality shall inform the Ministry of Finance of cases of deceit,
fraud and manipulation immediately upon discovery and provide it
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
51
Kingdom of Saudi Arabia
with the decisions made in this respect, including decisions of
withdrawal of work.”
SHARI'AH LAW
34. Are there any general or specific references
to bribery or corruption under Shari'ah?
Control and Investigation Board; (ii) representatives from the
Ministry of Interior: the Director of the Civil Defence, the Deputy
of the Principality of Makkah Region, the General Director of
Administrative Investigations and the Director of Makkah
Region Investigations; (iii) a high-ranking representative from
the General Administration of Intelligence; (iv) the Deputy of the
Ministry of Justice; and (v) the assisting Vice President of the
General Auditing Bureau as members, to mainly carry out
the following:
•• Shari'ah and Islamic authorities and principles all aim towards
the establishment of ethics and morals on both the individual
level and the level of society as a whole and the renunciation of
immorality and dishonesty. There are several general and
specific references such as:
conduct investigations into the reasons for the floods and the
responsibilities of each concerned government body;
assess the overall damage to lives and properties; and
report to the King all the findings based on the investigations
and offer advice for the future.
“Help one another in virtue and righteousness and do not help one
another in sin and transgression.” Verse 2, Surat Al Ma'eda, the
holy Quran.
“Do not defraud people by depreciating their things and do not
carry corruption and mischief in the land.” Verse 183, Surat Al
Shu'araa, the holy Quran.
“Prophet Mohammed, peace be upon him, has cursed the briber,
•• Additionally, this Order required the Ministry of Finance to
compensate for all property damage and to pay SR1 million
(equivalent to c. USD266,000) to the families of victims of the
floods. Jeddah was struck by flooding again in 2011. Corruption
in the contracts entered by the Municipality of Jeddah for the
the bribe-taker and the mediator between them.”
city's infrastructure was considered to be a major contributing
RECENT DEVELOPMENTS
35. Have there been any recent high-profile
bribery/corruption scandals, allegations or
prosecutions in Saudi Arabia?
factor to the city's inability to face the heavy rains, which again
caused damage to lives and property. Several investigations
were subsequently conducted into high-ranking government
officials, businessmen and contracting companies that were
involved in the city's infrastructure projects, which led to
prosecutions before the Administrative Court of Jeddah. By
early 2013, 21 people had been found guilty of criminal charges
relating to the floods and sentenced to jail for a total of 85 years
and to pay fines totalling SR 6.5 million (equivalent to c.
USD1,700,000). These judgments were rendered final by the
Court of Appeal in August 2014.
•• According to an article published by the Saudi Gazette in
January 2014, the Commission revealed that in 2013 it had
detected 306 cases of corruption by investigating 400 public
projects, of which 30 were referred to the Bureau of
Investigation and Public Prosecution for investigation while the
remaining were referred to the attention of the relevant
ministries and government bodies.
•• The most recent high-profile scandal remains the case of the
floods that struck the city of Jeddah in 2009, resulting in
damage to lives and property in Jeddah and nearby areas. In
response, King Abdullah Bin Abdulaziz issued Royal Order
No.A/191 dated 13/12/1430 H corresponding to 30 November
2009 for the formation of a special committee, headed by the
Prince of Makkah Region and including (i) the President of the
Authors
Al Ghazzawi Professional Association
Dr. Belal T. Al Ghazzawi
Rima M. El Chaaraoui
Jeddah Commercial Centre (3rd Floor)
Al Ma’adey Street, Al Hamra Corniche
PO Box 7346, Jeddah 21462
Saudi Arabia
T +966 (12) 653 1576
F +966 (12) 653 2612
www.ghazzawilawfirm.com
ITA
L
Y
52
HERBERT SMITH FREEHILLS
United Arab Emirates
SPAIN
TURKEY
TUNISIA
LEBANON
SYRIA
United Arab
Emirates
(including the DIFC)
CO
ISRAEL
IRAQ
IRAN
ALGERIA
JORDAN
BAHRAIN
KUWAIT
LIBYA
EGYPT
QATAR
SAUDI
ARABIA
UAE
OMAN
NIGER
YEMEN
SUDAN
CHAD
ERITREA
The United Arab Emirates (“UAE”) does not
have specific ABC legislation. The law relating to
anti-bribery and corruption in the UAE includes a
broad range of legislation, supporting regulations
and cabinet resolutions, at both a federal level
and an individual Emirate level.
DJIBOUTI
REPUBLIC OF
SOMALILAND
•• While federal civil and commercial laws do not apply in the
DIFC, pursuant to Article 3 of the Financial Free Zone Law,
federal criminal law and law relating to anti-money laundering is
NIGERIA
applicable. Accordingly, while the Federal Human Resources
Law and the Dubai Human Resources Law do not apply in the
DIFC, the Federal Penal Code will apply, and in relation to bribery
and corruption Articles 234-239 will be applicable.
•• In the UAE, laws can be passed at two levels: federal or local
(Emirate). The two levels should not, theoretically, conflict, but
where conflict does arise, the provisions of the federal law will
take precedence.
The UAE also contains a number of economic free zones, such as
the Dubai International Financial Centre (“DIFC”). The DIFC has
been granted authority to self-legislate in civil and commercial
areas. The DIFC does not have specific ABC legislation, and is
subject to federal criminal laws. As such, entities operating within
the DIFC will be subject to the ABC provisions contained in the
UAE Federal Penal Code. However, separate civil laws potentially
relevant to ABC apply in the DIFC.
N
UGA
Local regulatory guidance in relation to the following
types of activities: gifts, meals, entertainment, travel,
sponsored training/conferences and other similar
hospitality events?
This chapter focuses on the federal and local laws as they apply in
the Emirates of Dubai and Abu Dhabi.
•• With the exception of the restrictions contained in the above
legislation, there is no other published regulatory guidance,
regulations or codes of conduct in relation to providing gifts,
meals, entertainment, travel, sponsored training/conferences or
similar hospitality events.
THE LAW
1. What is the source of:
ABC legislation and regulations?
•• The Federal HR Law and the Dubai HR Law (governing federal
government and Dubai government employees and public
servants respectively) contain specific provisions relating to
gifts, bribes and conflicts of interest.
ZAMBIA
•• The UAE does not have specific ABC legislation. The primary
sources of relevant legislation in the UAE are contained in:
•• There is no equivalent to the Federal HR Law applicable in
the DIFC.
ZIMBABWE
Articles 234-239 of Federal Law No.3/1987, (the ‘UAE Federal
Penal Code’);
2. What constitutes an ABC offence in the UAE?
the penal codes of each of the individual Emirates (where
applicable), including:
•• Under the UAE Federal Penal Code
1
, it is a criminal offence to
•• Abu Dhabi Law No.1/1970, (the ‘Abu Dhabi Penal
Code’); and
offer or provide any gifts or benefits to a public official, subject
to any de minimis exceptions found in the applicable HR Law(s)
(see question 4 below), if the offer or giving is coupled with an
intention on behalf of the giver to procure an act, or omission of
an act, in violation of the duties of the public official’s function.
•• Dubai Penal Law of 1970 (the ‘Dubai Penal Code’);
Federal Law Decree No.11/2008 regarding Human Resources
in Federal Government (as amended by Cabinet Resolution
•• Under the Abu Dhabi Penal Code, it is a criminal offence to
offer or give a bribe to a public official, if the public official
abuses his official position in return for the bribe
No.1/2018) (the ‘Federal HR Law’);
Dubai Human Resources Management Law No.27/2006 (the
‘Dubai HR Law’);
Federal Law No.6/2004 (the ‘Federal Armed Forces Law)’; and
the Dubai Law relating to the Procedures for the Recovery of
Illegally Obtained Public and Private Funds (the “Dubai
Financial Fraud Law”).
2
. This means
that there must be a corrupt intent behind the offer or giving.
•• In all of the Emirates except Dubai (see next point), if there is no
corrupt intention on the part of the offeror, they commit no
D
A
offence, whether or not the public official (i) proceeds to take or
refrains from taking any action in return or (ii) does nothing in
return (although of course, there is a risk that a UAE court would
TOGO
ETHIOPIA
R
E
P
U
B
LIC OF
SOUTH
SUDAN
CENTRAL AFRICAN
REPUBLIC
CAMEROON
L
A
M
S
O
TANZANIA
SWAZILAND
SOUTH
AFRICA
I
A
EQUATORIAL GUINEA
RWANDA
SEYCHELLES
E
U
IQ
B
NAMIBIA
C
O
N
G
O
KENYA
GABON
DEMOCRATIC
REPUBLIC OF
CONGO
BURUNDI
M
A
LAWI
COMOROS
M
O
Z
A
M
MADAG
A
S
C
A
R
MAURITIUS
BOTSWANA
LESO
T
H
O
BENIN
ANGOLA
ANGOLA
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
53
United Arab Emirates
find that there was such an intention on the part of the offeror
depending on the facts).
•• The Dubai Penal Code is different to the UAE Federal Penal
Code in one material respect, in that the requirement of intent is
absent
3
provisions relating to conspiracy to commit criminal acts. However,
it is unlikely that a business lunch, business dinner or the
sponsorship of an event followed by a reception, for example,
would create a criminal liability for the host, either under the
relevant bribery provisions or as part of a criminal conspiracy, and
these types of activities frequently occur.
, meaning it is a criminal offence to offer or provide any
gifts or benefits to a Dubai public official, even if the offeror or
giver has no intention to procure an act, or omission of an act, in
violation of the duties of the public official’s function
4
.
•• Having said that, it is important to note that the UAE is a civil law
jurisdiction, the application of the ABC laws by the courts is not
capable of definitive interpretation or certainty and there is no
general system of precedent or case reporting. As such, the
approach to corruption allegations will vary and depend on the
detailed facts and the attitude of the courts (although the UAE
courts are likely to take a strict approach to the statutory duties
imposed on public officials).
•• The Dubai Financial Fraud Law applies to any person who is
convicted of a crime in Dubai in relation to improperly obtaining
public funds and/or illicit monies. It allows the accused person
to have access to all the necessary communications they require
to facilitate return of illicit monies or to reach a settlement
with creditors.
•• On a practical level, most UAE ministry and government
department employees are likely to have received ABC training.
Some departments may maintain gift registers (although there is
no uniform rule or policy), and public officials may be obliged to
register any gift/benefits they receive. Such registers may be the
subject of internal audits. It is also a criminal offence in the UAE not
3. Are there any statutory defences provided
under the relevant legislation, eg de minimis
exceptions – payments that are legal in the
country in which they are offered, etc? What
considerations will be taken into account, for
example the purpose and frequency of the gift/
event, the cost to the organiser, the value of the
benefit offered to the individual?
to report a crime or attempted crime. If a public official considers
that any offer or giving of a gift/benefit constitutes a breach of
anti-bribery or conspiracy provisions, they may consider
themselves obliged to report the same to the authorities.
•• Subject to the exceptions described in answer to question 4
below, there are no other statutory defences available under the
relevant legislation.
5. What kinds of gifts/entertainment/
advantages will be considered unacceptable?
4. What kinds of gifts/entertainment/
advantages will be considered acceptable?
•• Apart from the gifts, entertainment and advantages detailed as
acceptable above, every other kind of gift, entertainment or
advantage is likely to be unacceptable.
•• The Federal HR Law and the Dubai HR Law contain de minimis
provisions for gifts.
•• The Federal HR Law forbids federal employees from accepting
any gifts unless they are ‘sample’ promotional gifts bearing the
name and logo of the offeror
5
.
6. Are there any exemptions, for example “grease
payments” – defined as payments made to procure
“routine governmental action” – that “do not
involve an exercise of discretion” (such as under the
FCPA), payments that “are legal in the country in
which they are offered”, and “reasonable and bona
fide expenses directly relating to the promotion of
products or services”?
•• The Dubai HR Law forbids government employees from
accepting any material gifts unless they are symbolic or
promotional in nature and bear the name and logo of the
offeror
6
. There is no local Abu Dhabi equivalent human
resources law
7
.
•• There are no exemptions for such payments.
•• In relation to a Dubai public official, the gift or benefit must be of
value to the recipient, and there is an important exclusion: if
there is sufficient ‘return’ given to the offeror for the gift or
benefit, then no offence will have been committed by the offeror
(or the receiving party). A balance will therefore need to be
struck, based on the circumstances in each case, between the
value of the gift or benefit to the Dubai public official and the
return given by that public official for the gift or benefit. For
example, the value of a lunch to a Dubai public official in return
for his time to get to know the host company’s business should
be acceptable, whereas the value to him of attending a
prestigious sporting event with no apparent business purpose
would not be acceptable.
7. Does the law cover gifts/entertainment/
advantages which are given to spouses/relatives
of public officers/civil servants, and/or
companies in which the public officers/civil
servants are directors/shareholders?
•• Yes. The Federal Penal Code, the Dubai Penal Code and the Abu
Dhabi Penal Code prohibit a person from soliciting or accepting
a bribe for himself or on behalf of another person. This would
include gifts, entertainment and advantages given to spouses,
relatives, civil servants and/or companies in which the bribe
recipient is a director or shareholder.
•• It would therefore be prudent when dealing with a Dubai public
official to comply with the Dubai Penal Code, as in practice it is
very difficult to draw a distinction between federal and local
laws, unless the provisions are clearly drawn.
8. What is the position in respect of charitable
contributions to the Government and/or
politically exposed persons (PEP)-connected
local charities?
•• If the act of accepting the gift/benefit by the public official is found
by a court to have been a breach of any relevant criminal provisions
of the applicable laws and codes, a potential consequence is that
the offeror may be in breach of UAE and local Penal Code
•• There are no specific provisions addressing charitable
contributions to the Government and/or PEP-connected
local charities.
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HERBERT SMITH FREEHILLS
United Arab Emirates
9. Do the ABC laws/regulations apply to the
private sector or do they relate to the bribery of
public individuals and/or bodies only?
•• The State Audit Institution
8
(“SAI”) has also issued the Fraud
Control Frameworks Best Practice Guide, which is stated to be
based upon international best practice in fraud control. The Guide
seeks to provide a strong and effective fraud control framework for
public sector organisations and to assist in improving the security
of public funds by effectively controlling fraud.
•• Both. The Federal Penal Code applies to bribery in both the
public sector and private sector, although it is important to note
that there is no offence of offering a bribe in a private context, ie
between private parties not involving a public official.
•• We are not aware of any codes of conduct, guidance or internal
regulations being issued or promulgated by ministries and/or
governmental departments at an individual Emirate level.
10. What is the definition of a public body?
Would it include persons working in
state-owned/controlled companies? Who is a
public/civil servant?
12. Are there any laws or regulations imposing
obligations on persons to “whistleblow” or
disclose suspected corruption within an
organisation?
•• The UAE Federal Penal Code does not define “public authority”
or “public body”. However, the definition of “public officer”
contained in Article 5 specifically includes individuals entrusted
with public authority and employees working in ministries and
government departments, members of the armed forces, heads
and members of legislative, advisory and municipal councils,
chairmen of the boards, members, directors and all the staff of
public bodies and institutions and chairmen of the boards,
members, directors and all the staff of public societies and
public welfare institutions.
•• There are no specific laws at a federal or Emirate level imposing
obligations on persons to “whistleblow” or disclose suspected
corruption within an organisation, although there is a general
obligation under the UAE Penal Code to report a crime.
•• However, the Dubai Land Department has issued a draft code of
Corporate Governance for Developers, which contains a
framework which seeks to provide protection from discharge or
discrimination against a whistleblower, who may otherwise be
subject to retaliation by the employers or fellow employees
within the organisations to which they belong.
•• In addition, any individual who does not belong to any of the
above categories, and performs a job relating to a public service
as a result of a mandate given to him by a public officer in
accordance with his authority is also considered to be a public
officer or official.
•• At a federal level, the SAI runs a reporting portal through which
employees and citizens can anonymously report on fraud and
corruption. Complaints are made anonymously through the
SAI’s website, email or by post and personal details are not
required. The reporting procedure involves the head of the SAI
receiving the complaint, which is then referred on to the relevant
ministry or agency for investigation. The investigation itself is
overseen by the SAI.
•• The Dubai Penal Code does not define “public body” but rather
refers to “an employee in the public service or a public employee”.
A public employee is defined broadly to include any person holding
a job in which the power of appointment or dismissal is vested in
the Ruler, a governmental department, or a specific committee or
council, any job to which a person is appointed or nominated by
law, every civil service job in which the power of appointment or
dismissal is vested in any person holding an office of any kind,
every job of whatever kind in which the power of appointing or
dismissing any person lies with board of the reconciled Emirates
rulers (also known as the Trucial States Council) or with any
department or authority related to the mentioned board, the office
of any arbitrator, or pursuant to any law.
13. Do the local anti-corruption regulations have
extra-territorial effect? (Is bribery of foreign
public officials prohibited?)
•• At present there is no specific legislation in place relating to
prohibiting bribery of a foreign official.
REGULATION OF ACTIVITIES
14. What are the main bodies responsible for
investigating and combating ABC in the UAE?
•• The Abu Dhabi Penal Code does not define “public body“, but
refers to “a public officer“, which it defines as “any officer at the
service of the governor, or at any governmental or
semi-governmental body instituted by law, regardless of being
appointed with or without salary, temporary or permanent.“
•• In addition to the police and public prosecution offices, the main
bodies responsible for investigating and combating ABC in the
UAE at a federal level are the SAI, and at an Emirate level in Abu
Dhabi and Dubai, the Abu Dhabi Accountability Authority
•• The above definitions in the UAE Federal Penal Code and the
Emirate-level Penal Codes would apply to employees of both
state-owned and state-controlled companies.
9
(“ADAA”) and the Dubai Financial Audit Department
10
(“DFAD”) respectively.
11. Does the Government issue internal
regulations or codes of conduct applicable to
public officers/civil servants?
•• In addition, to the SAI
11
, ADAA and DFAD, all federal and Dubai
ministries and government departments have responsibility for
investigating suspected and reported cases of bribery pursuant
to the Federal HR Law and the Dubai HR Law
12
. There is no
•• In 2010, the Federal Government issued Federal Cabinet
Resolution No.15 approving the Code of Professional Conduct and
Ethics. The Code applies to persons holding a position in a
federal ministry, public entity or institute and seeks to create and
encourage a culture aimed at enhancing professional values,
responsibility and a desire to abide by high ethical values, while
equivalent law in Abu Dhabi. The Federal HR Law and the Dubai
HR Law are not applicable in the DIFC.
•• The seven Emirates each have their own police force operating
under the Federal Ministry of the Interior. The two major police
forces are the Abu Dhabi Police and Dubai Police. Both police
forces have specialised units which deal with financial
simultaneously developing the confidence and credibility in the
investigations and allegations of bribery and corruption.
government sector.
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
55
United Arab Emirates
•• Similarly, the Dubai Public Prosecution Office in Dubai has a
specialised unit referred to as Public Funds Prosecution, while
the Abu Dhabi Public Prosecution Office also has a specialised
unit which deals with financial violations and investigations.
may, at the written request of a specific Emirate, undertake an
audit of a specific entity.
•• Bribery that occurs in the private sector is governed by the
Federal Penal Code and any investigations will in general be
undertaken by the police and/or public prosecution.
•• The powers of the AADA and DFAD are restricted to
investigations of financial misconduct and, in circumstances
where evidence of a criminal offence has occurred (such as
bribery), referral of such alleged criminal conduct to the police
and public prosecutor. Amongst the ADAA's responsibilities, it
is required to conduct investigations of complaints referred to it
and other violations it may discover.
•• In the DIFC, neither the DIFC Authority nor the DFSA have
specific authority to investigate in relation to allegations of
bribery and corruption. The DFSA may, as part of its ongoing
supervision of DFSA authorised persons (such as DFSA
authorised firms, authorised market institutions and authorised
individuals), or during the course of undertaking investigations,
(for example, in response to information received from other
parties or as a result of ongoing failures to comply with
regulatory obligations) obtain evidence of bribery and
corruption. In these circumstances, information gathered is
obtained in reliance on the DFSA’s supervisory powers and
investigatory powers as contained in the DIFC Regulatory Law.
Any evidence of a criminal offence under the Federal Penal
•• Similarly, under the Federal HR Law and the Dubai HR Law, a
government department or ministry’s powers of investigation
relate to suspected or reported incidents of bribery. Where an
investigation confirms that there is strong evidence that an
employee has demanded, accepted, received or paid a bribe to
another employee, the matter must be referred to the competent
judicial entities (ie the police and Public Prosecution Office).
Code will be referred by the DFSA to either the police or Public
•• In the DIFC, any evidence of bribery and corruption gathered
during the course of an investigation will be referred by the DIFC
Authority or DFSA to the police and/or the public prosecutor, as
such activities are likely to constitute a federal criminal offence
under the Federal Penal Code.
Prosecution Office.
17. What actions may these bodies take in
exercising their functions?
15. What does each of these
authorities investigate?
•• The SAI is the federal audit authority charged with responsibility
for ensuring that federal public funds are allocated correctly and
in accordance with the appropriate rules and procedures. As
part of its mandate, the SAI investigates cases of financial
misconduct relating to state funds.
•• The SAI rules provide that in the course of an investigation into a
financial violation, the SAI may make direct contact with all
officials and employees that work for the bodies subject to audit,
and review any document, record or papers it deems necessary
for investigation. In addition, the SAI is entitled to take action to
scrutinise all financial contraventions and to interview officials
and employees, question them and may, if necessary, suspend
staff from service, seize properties, and use all necessary means
to protect funds under audit and to refund the lost funds or
those which have been used illegally.
•• The ADAA and DFAD are the audit authorities responsible for
ensuring that state funds are allocated correctly and that not
only controls but that all legal requirements relating to
government spending have been complied with.
•• Unlike the SAI, neither the ADAA nor DFAD have the ability
to prosecute.
18. What are the powers of arrest and detention
of the relevant authorities?
•• Pursuant to the Federal HR Law and the Dubai HR Law,
ministries and government departments must undertake an
official investigation where it is suspected that an employee has
paid, received or asked for a bribe. Federal ministries and
government departments are required to establish a Violations
Committee to undertake the investigation and proceedings. The
Violations Committee is responsible for investigating violations
committed by employees (excluding violations relating to
working hours) and imposing administrative penalties in
accordance with Article 83 of the Federal HR Law.
•• Save for the police authorities, none of the above-mentioned
authorities have powers of arrest.
19. What is the jurisdictional reach of
these powers?
•• The SAI’s jurisdiction to investigate bribery and corruption applies
only in respect of certain public bodies, including federal ministries
and departments, the Federal National Council, organisations and
public corporations reporting to the federal government,
companies and corporations in which the federal government or
any federal corporate entity/body retains at least 25% ownership,
and any Emirate government organisation, entity or public
corporation in respect of which the Ruler of that Emirate has
requested (in writing) that the SAI undertakes an audit.
•• The UAE Federal Penal Code, Dubai Penal Code and Abu Dhabi
Penal Code do not set out specific provisions in relation to the
precise jurisdiction of the police and public prosecutor to
undertake investigations and prosecutions for bribery
and corruption.
•• The ADAA's jurisdiction to investigate bribery and corruption
applies only in respect of “Subject Entities”, which includes all
16. Do the authorities described above have the
same powers of investigation?
local Abu Dhabi ministries, departments, councils, authorities
and additionally companies and projects in which the Abu Dhabi
Government's interest is equal to or greater than 50% inclusive
of their subsidiaries, companies and projects.
•• In addition to its powers of investigation and referral to the
judicial authorities, the SAI also has the authority to prosecute
matters relating to financial violations of state funds before a
special disciplinary committee, or to refer the matter to the
•• Like the ADAA, the DFAD’s jurisdiction to investigate financial
relevant ministry or government department. In addition, whilst
violations (which may include bribery and corruption) applies in
its jurisdiction in general relates to federal government
departments and ministries or government-owned entities, it
respect of Dubai Government departments, public
organisations, corporations and authorities (including the free
56
HERBERT SMITH FREEHILLS
United Arab Emirates
zone authorities), companies 100% owned by the Dubai
Government or where the Government holds at least 25% or
more of their share capital, companies from which the Dubai
Government secures a minimum rate of profit and that receive
financial aid from the Government, and any projects or other
entities in respect of which the Ruler or the Head of the
Executive Council entrusts to the DFAD to audit its accounts.
judicial authorities for a criminal hearing, any disciplinary
proceedings must be put on hold until a decision on criminal
liability has been issued.
20. Do the police and other local authorities
assist the relevant regulatory authorities in
their investigations?
•• The DFAD has powers to retain documentation, paper, records
and other things used to commit a financial contravention. In
addition, the Director General of the DFAD and certain
employees (as nominated by him) have the capacity of judicial
officers to provide information in relation to financial
contraventions committed by “controllable entities” which
constitute a criminal offence. Minutes prepared by a judicial
officer will be effective as evidence unless proved otherwise.
•• The relevant regulatory authority or ministry and the police will
work with the Public Prosecution Office and assist with any
investigations, obtaining information and gathering evidence.
21. How do the relevant regulatory authorities
interact with overseas regulators?
•• To date, the DFSA has not been asked to undertake an
investigation in relation to bribery or corruption under the UAE
Federal Penal Code. In the event that the DFSA was requested to
assist in such an investigation, it would not be relying on its
powers of investigation under the DIFC Regulatory Law, and
therefore, it is unclear if the DFSA could then use such
information for its own purposes, for example to take
disciplinary action under DFSA law or rulebooks.
•• The UAE is a party to the United Nations Convention against
Corruption (“UNCAC”), which was ratified by the UAE under
Federal Decree No.8/2006. Under Chapter IIII of the
Convention, Member States to the Convention assist each other
24. Are there protections available when
in combating corruption. This cooperation takes the form of
extradition, mutual legal assistance, transfer of judgements and
criminal proceedings and cooperation in the area of
law enforcement.
responding to investigations by the relevant
authorities, such as the right to legal
representation at interviews, privilege against
self-incrimination and legal
professional privilege?
•• In addition, the UAE has entered into bilateral mutual judicial
assistance agreements which relate to extradition, providing
assistance in criminal matters and the transfer of prisoners with
numerous countries including Singapore, India, Australia and the
United Kingdom.
•• No such rights exist under the federal or Emirate-level
penal codes.
•• The SAI has also established “twinning programmes” with audit
institutions in other jurisdictions including:
SANCTIONS FOR WRONGDOING
25. What disciplinary sanctions/sentences may
these authorities impose?
the Audit Commission, United Kingdom;
the Audit Office of New South Wales, Australia;
the Malaysia National Audit Department;
the Netherlands Court of Audit; and
the Office of the Auditor, New Zealand.
•• Under the Federal HR Law and the Dubai HR Law, where a
matter is referred to the court due to an employee or public
officer committing a criminal offence in connection with his
employment, a government department or ministry may take
disciplinary action, including:
suspending the employee without salary while awaiting the
issuance of a decision from the courts;
22. Are there any provisions requiring
investigations or information disclosed
during the course of investigations to be
kept confidential?
terminating employment if convicted of a felony or
misdemeanour involving dishonesty, immoral crime or
moral turpitude;
terminating employment if convicted of a felony or
misdemeanour and sentenced to imprisonment of more than
three months.
•• The Executive Regulations to the Federal HR Law provides that
the proceedings and findings in relation to an investigation into a
violation shall be kept confidential.
•• There are no such provisions in the Federal or Abu Dhabi/Dubai
Penal Codes.
•• The sanctions imposed under the UAE Federal Penal Code
include imprisonment for a period not exceeding 10 years. In
addition, in relation to any of these offences, the offender will be
subject to a fine equivalent to what he has solicited or accepted
as a bribe, provided that it is not less than AED1000. Finally, any
23. Can information obtained by these
regulatory bodies in the course of their
investigations be used for any other purpose, for
example in proceedings in a court of law?
such bribe received will be confiscated from the individual.
•• The sanctions imposed by the Dubai Penal Code include
imprisonment for a maximum of three years or a fine not
exceeding AED5,000 (or both).
•• Yes. Pursuant to the Federal HR Law and the Dubai HR Law, the
relevant government ministry or department is required to not
only investigate and refer any matter constituting an offence to
•• The sanctions imposed by the Abu Dhabi Penal Code include
the police or public prosecutor, but it is also under an obligation
imprisonment for a maximum of three years, a fine, or both.
to take any internal disciplinary action necessary. The Dubai HR
Law provides that where an alleged offence is referred to the
•• The Dubai Financial Fraud Law provides that if it is evident from
a final and conclusive court decision that the judgment debtor
ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST
57
United Arab Emirates
received illegal monies, the judge must issue an order upon
request of the judgment creditor for imprisonment, as follows:
of the contravention. In these circumstances, Article 22 provides
that the responsibility will be on the employees’ superior who
gave the order.
AMOUNT OF ILLEGAL MONIES
TO BE SETTLED
PRISON TERM
A minimum of AED500,000 and a
maximum of AED1 million
5 years
A minimum of AED1 million
and a maximum of AED5 million
10 years
29. Is it possible to obtain written/signed
acknowledgement from the relevant supervisory
level of the public body/state which shows that
the supervisor is aware of the advantage offered
to an employee? Is there an official approval
process available or channel to go through?
A minimum of AED5 million and a
maximum of AED10 million
15 years
More than AED10 million
20 years
•• There is no formal process for this; however, the Federal HR Law
and the Dubai HR Law both provide that a ministry may specify
organisational units which are allowed to accept gifts and
government employees who are allowed to accept such gifts
made in the name of the concerned ministry. As above, the gifts
are restricted to those constituting symbolic advertising or
promotional gifts which bear the name or the emblem of the
entity which is providing the gift.
26. Do the relevant regulatory authorities have
powers to freeze properties which may be
proceeds of an ABC offence pending conclusion
of their investigation?
•• There are no specific provisions in the UAE Federal Penal Code,
the Dubai Penal Code, the Abu Dhabi Penal Code, the Federal
30. Are there any provisions to appeal against
any enforcement action/prosecution taken
against them?
HR Law or the Dubai HR Law which permit a government
ministry or department (whether federal or Dubai/Abu Dhabi)
to freeze properties which may be the proceeds of a bribery or
corruption offence pending conclusion of their investigation.
•• The ordinary criminal court appeals system will apply.
•• The SAI may seize properties and use all means necessary to
protect funds under audit and to refund lost funds or those
used illegally.
•• While the Executive Regulations to the Federal HR Law provide
for an appeal mechanism in relation to a decision of the
Violations Committee, this would likely not be applicable to
matters of bribery and corruption as they are criminal offences
that must be referred to the police/public prosecutor.
•• However, attachments of assets can be obtained in the UAE in
the civil courts in civil matters, so the public prosecutor is likely
to be able to have this power.
REFORMS
31. Are there likely to be any significant reforms
in the near future?
27. Is it possible to enter into a settlement to
resolve any enforcement action/prosecution by
the relevant authorities?
•• There is currently no legislation provision for this and it is not
understood to be accepted practice.
•• In 2012, H.H. Sheikh Khalifa Bin Zayed Al Nahyan issued
instructions to the SAI to draft an anti-corruption draft law. The
proposed law will seek to enforce the United National
Convention against Corruption signed by the UAE in 2003 and
ratified pursuant to Federal Decree No.8/2006. The draft law
has yet to be published.
28. Where proper disclosure is made to the
employer/public body concerning the details of
the gift or event being offered, would that be
sufficient to avoid any potential liability under
the relevant legislation?
•• In May 2015, the Abu Dhabi Executive Council announced that it
would establish a new anti-corruption unit within the ADAA.
The primary objectives of the new unit include to ensure that
public entities’ resources and funds are managed, collected, and
spent efficiently, effectively, economically and ethically and to
promote transparency and accountability across all public
entities. The new unit will also target and investigate financial
irregularities and corruption, identify gaps in legislation and
audit the government’s consolidated financial statements and
any subject entities' financial statements.
•• Under the UAE Federal Penal Code, the Dubai Penal Code and
the Abu Dhabi Penal Code, it is only an offence to solicit or
accept a bribe. Accordingly, a public official or employee who is
offered a bribe but refuses and reports such action would not be
guilty of committing an offence. None of the Codes however,
provide a procedure for the manner, form or time frame within
which such a disclosure should be made.
•• Under the UAE Federal Penal Code, if the briber informs the
judicial or administrative authorities of the crime immediately or
if the briber confesses before the case is communicated to the
court, they will be exempted from punishment. Where the
confession is made after the case has been communicated to
the Court, it will be considered as a mitigating factor.
•• In 2016, Dubai Law No.4/2016 (the “New Law”) introduced a
new regulator called the Dubai Economic Security Centre (the
“DESC”). The New Law applies to onshore Dubai as well as the
free zones located in the Emirate of Dubai, in particular the
DIFC. It will apply to a number of entities including local
government and charities, and free zone regulators including the
DFSA and DIFC Authority. The New Law is now in force,
however, the DESC is not yet operational and a commencement
date for their operation has not yet been set. The DESC is being
•• SAI rules provide that an official may be exempted from a
set up to fight corruption, fraud, bribery, embezzlement, forgery,
penalty where he proves that the contravention committed was
done in execution of a written order issued to him by his
superior, despite providing a written notification to the superior
money laundering, crimes against public funds and the financing
of terrorism or illegal organisations. Their role will also
encompass the monitoring of:
58
HERBERT SMITH FREEHILLS
United Arab Emirates
Trading of currencies, commodities, precious metals and listed
and unlisted securities;
charitable donations;
funds, cash or financial instruments received or sent through
Emirate's ports; and
economic risks.
•• The DESC will be able to take preventative actions and
measures, request the assistance of the Dubai police, require
that certain information be provided, temporarily suspend
trades on exchanges in exceptional circumstances, provide
protection to whistleblowers and impose penalties. It will also
have some rulemaking powers.
Authors
Herbert Smith Freehills LLP
Stuart Paterson
Benjamin Hopps
Janine Mallis
Dubai International Financial Centre
Gate Village 7, Level 4
Dubai
PO Box 506631
United Arab Emirates
T +971 4 428 6300
F +971 4 365 3171
www.herbertsmithfreehills.com
FOOTNOTES:
1. UAE Penal Code, Article 237
2. Abu Dhabi Penal Code, Article 42
3. Dubai Penal Code, Article 120
4. Dubai Penal Code, Article 122
5. The Federal HR Law, Article 70
6. Dubai HR Law, Article 11(4)
7. Although Article 56 of Abu Dhabi Law No.1/2006 (the 'Civil Service Law') provides that civil servants shall perform their duties honestly, there is no explicit reference to
bribery, and no criminal penalties are laid out in the Civil Service Law for non-compliance with Article 56.
8. The SAI is established pursuant to Federal Law No.7/1976, establishing the State Audit Institution (the “SAI Law”).
9. The ADAA is established pursuant to Abu Dhabi Law No.14/2008.
10. The DFAD is established pursuant to Dubai Law No.3/2007 and Law No.8/2010.
11. Article 20 of the SAI Law specifically provides that the SAI “shall investigate into financial contraventions, whether discovered by the SAI or by the concerned administration”.
12. Article 11(3), Dubai Law No.27/2006, Human Resources Management Law
Herbert Smith Freehills global contacts
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Herbert Smith Freehills
global contacts
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