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Middle East Anti-Corruption Regulations Legal Guide 2018

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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 Preface 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. Kyle Wombolt Partner, Global Head of Corporate Crime and Investigations T +852 2101 4005 [email protected] Stuart Paterson Partner T +971 4 428 6308 [email protected] Benjamin Hopps Senior Associate T +971 4 428 6369 [email protected] Introduction ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST 03 Introduction The Middle East region presents various and businessmen stretching back decades. It is reported that many of those concerned have paid many billions of US dollars anti-corruption challenges for businesses. by way of compensation or to retain their freedom. These include the difficulty in identifying politically exposed persons, the prevalence All the jurisdictions in this guide have in place laws regulating bribery and corruption activities which often carry with them of intermediaries in the conduct of business severe financial and penal punishments. relationships and the widespread difficulty in accessing company ownership and It is therefore essential for companies and individuals currently operating (or those who would like to operate) in the Middle financial records. 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 Each chapter in this guide focuses on a different Middle East and the UK Bribery Act representing key tools for punishing jurisdiction and explains how the legislative framework corrupt activity. regulating bribery and corruption activities operates, including the powers of local law enforcement and regulators to What many companies doing business in the Middle East may investigate and prosecute offenders, the sanctions that can be not appreciate is the extent of domestic anti-corruption imposed, and a summary of what is on the anti-bribery and legislation and how those laws are applied in practice. corruption horizon. 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 THE RUSSIAN FEDERATION UNITED KINGDOM NETHERLANDS GERMANY FRANCE ITA LY The Kingdom Bahrain The of 04 HERBERT SMITH FREEHILLS SPAIN TURKEY SOUTH KOREA N TUNISIA PA LEBANON SYRIA PEOPLE’S JA O REPUBLIC OF CC IRAQ O ISRAEL CHINA R The Kingdom IRAN O M ALGERIAof Bahrain JORDAN BAHRAIN KUWAIT MEXICO LIBYA WESTERN EGYPT QATAR SAHARA THE KINGDOM OF BAHRAIN SAUDI INDIA TAIWAN ARABIA UAE OMAN HONG KONG MAURITANIA CAPE VERDE MALI NIGER YEMEN THAILAND SUDAN CHAD ERITREA VIETNAM SENEGAL THE PHILIPPINES GAMBIA REPUBLIC OF BURKINA DJIBOUTI FASO THE LAW SOMALILAND GUINEA-BISSAU GUINEA B E 1.N What is the source of: after having completed doing the act, or omitting to do such T I O N NIGERIA act, in violation of the duties of their office, or in relation to SIERRA CÔTE G ABC legislation and regulations? O ETHIOPIA LEONE D'IVOIRE SOUTHcorporations, in a manner detrimental to the interests of the GHANA ••Articles 186-193 of the Bahrain PenalCENTRAL Code, promulgated AFRICAN by SUDANemployer or private corporate entity. COLUMBIA LIBERIA Decree Law No.15/1976, as amended by REPUBLICLaw No.1/2013 (the MALAYSIA CAMEROON ••In early 2014, eight Bahraini officials were suspended in “Penal Code” or the “Law”), cover the offence of bribery in connection with 25 major corruption casesI Aunder investigation SINGAPORE relation to civil servants. Articles 417-427 of the Amendment to L EQUATORIAL GUINEA F A following National Audit Office reportM revelations. These INDONESIA O the Penal Code (Law No.1/2013) cover the offence of bribery in A SO SÃO TOMÉ AND PRÍNCIPE C include 13D violations at the Municipalities and Urban Planning I O the private sector. L N G AffairsA Ministry, seven at Alba and one each at the Bahrain B UG KENYA U N ••Bahrain has also signedGABON and ratifiedP Othe United Nations Flour Mills Company, the Bahrain Chamber for Dispute E C RWANDA Convention against Corruption Rin Law (“UNCAC”), which has Resolution (BCDR-AAA), Bapco, the Works Ministry and the been implemented under Law No.7/2010.DEMOCRATIC As UNCAC is mainly Housing Ministry. directive in nature, the anti-bribery provisionsREPUBLIC of the Penal OF Code BURUNDI BRAZIL ••As of 21 January 2015, the Public Prosecution Office had received are the main pointsANGOLA of reference in investigationsCONGO and PERU 36 corruption-related cases: 10 of these cases were referred to prosecutions relating to bribery and corruption. TANZANIA the Criminal Court for criminal prosecution, 12 wereSEYCHELLES 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, I 3. Are there any statutory defences provided sponsored training/conferences and other similar W under theA relevant legislation,COMOROS eg de minimis hospitality events? L ANGOLA A exceptionsM – payments that are legal in the ••Local law/regulations do not provide guidance in respect of ZAMBIA country in which they are offered, etc? What specific categories of bribes, rather the law provides provisions considerations will be taken into account, for broadly prohibiting any bribes made in the form of substantial E example the purposeU and frequencyR of the gift/ gifts or privileges of any kind whatsoever or a promise to be given the IQ A event, the costB to the organiser, theC value of the same. ZIMBABWE M S AUSTRALIA A A benefit offeredZ to the individual? G O 2. What constitutes an ABC offence in Bahrain? A • M MAURITIUS NAMIBIA • The Penal Code provides for one mitigatingD factor, which is ••The Penal Code criminalises bribery of civil servantsBOTSWANA entrusted where a partner reports the offence toA the judicial authorities or with a public service as well as workers in private corporations. admits it before reference of the case Mto the court, the judge may CHILE It is an offence to receive or offer gifts or privileges to a civil exempt him from punishment, if such course of action servant, company employee, board member or corporate SWAZILANDis justified. trustee of a private corporate entity, as consideration for doing ••Although the law does not entail monetary thresholds in respect an act or omitting to do an act involved in his duties. It is also an of bribes, but criminalises bribery per se, the considerations offence to promise to give a gift or privilege of any kind in O SOUTH H which will be taken into account are the connection between the consideration of performing certain work or abstaining from T AFRICA LESO bribe, in whatever form offered or requested, and the action or performing the same, in breach of ones duties or in a manner omission expected or offered in return. In respect of events, the detrimental to the interests of the employer or private NEW relation between the subject matter of the event and the corporate entity. ZEALAND person’s specialisation, whether in public office or a private ••It is immaterial whether the official, employee, board member company, and whether such are related or not, will or corporate trustee actually intends to perform or abstain from be considered. 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 The Kingdom Bahrain The of ANTI-BRIBERY AND CORRUPTION REGULATION - THE MIDDLE EAST 05 4. What kinds of gifts/entertainment/ 8. What is the position in respect of charitable advantages will be considered acceptable? contributions to the Government and/or ••The law does not specifically provide a limit on gifts offered or politically exposed persons (PEP)-connected accepted. A gift of “modest value” may be permitted. For local charities? example, seasonal inexpensive gifts such as calendars and ••There are no specific provisions under Bahrain law that diaries can be given without concern. Further, gifts of modest prohibit making charitable donations. So long as such value such as pen sets, company plaques, etc, particularly if they donations are not “facilitation payments” and that nothing is bear the donor’s name or logo, are customary and acceptable.
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