Effective From: 18 January 2019
Three key factors should be considered to identify whether the gift offered is acceptable: intention, value and timing.
A bottle of wine to say thank you to a customer is usually acceptable but any gift or freebie intended to induce the recipient to make a business decision in favour of the giver is definitely not okay. Consider whether the value of the gift is relatively modest for your industry. There is no specific limit to the acceptable value of a gift and a common sense judgement is required. A bottle of wine may be appropriate but an expensive bottle of vintage champagne may require closer scrutiny.
Giving a gift is a universal way to show interest, appreciation, and gratitude, as well as strengthen bonds with others. It is normal to want to treat your connections & business contacts with personal gifts. However, the line between legitimate gift or business entertainment and a bribe can be difficult to evaluate. Conflicts of interest can arise and an employee may put himself or the company vulnerable to accusations of unethical or even unlawful conduct.
A gift is something of value given without the expectation of return. A bribe on the other hand, is the same thing but with the expectation of influence or benefit. Both can be monetary, actual items or they can be tickets to an event, like different sporting events or entertainment, such as dinners or concerts. Even if bribers are generally thought of being in the form of cash, that is not always the case. Also, while a modest gift given around Christmas might not raise too many eyebrows, a gift given at the time of a tender process could be considered a bribe, no matter how innocent it might be. You should always be aware of the timing as well.
The offence must be broken down into individual parts in order to better understand how the offence relates to the offering or giving of gifts:
For the Purpose of Obtaining a Benefit
As a starting point, two key conditions must be present:
1. The gift must be given or offered to compel the foreign official to act or refrain from acting in order to influence an act or decision of the foreign state.
2. The purpose of giving or offering the bribe must be to obtain or retain an advantage in the course of business.
Giving or Offering
Another important aspect of the bribery offence related to gifts is that there is no requirement for the gift to actually be given or to actually influence the foreign public official. Merely offering a gift, whether or not it is accepted, suffices as conduct actionable under section 3 of the CFPOA. Furthermore, even conspiracy to give or offer a gift is capable of attracting sanction under section 3. There is also no requirement that the foreign public official act or refrain from acting in the manner sought by the party giving or offering the gift. The fact that the gift has been given or offered, regardless of whether the party giving or offering the gift obtained any benefit in exchange, is sufficient to ground a violation of the Act.
Various Country Laws on Gifting
In Bangladesh, Secretaries to the Government or officers of equivalent status may accept gifts offered abroad or within Bangladesh by institutions or official dignitaries of foreign government of comparable or higher levels, provided that the value of the gift in each case does not exceed Tk 500 (USD 6.5) (Rule 5 of Government Servants (Conduct) Rules, 1979).
In Australia, any gift or gratuity may be considered a bribe under the law. The prohibition against bribing public officials can therefore extend to the provision of gifts, travel expenses, meals and entertainment.
In Cambodia, there is no specific limitation on the value of gifts that can be given to government officials under the law. However, the law clearly prohibits the giving of gifts of any value for the purposes of corruption. The purpose of the gift given to a government official or professional is more important than the value of the gift.
In China, no specific types of gifts or gratuities are considered permissible under the PRC Criminal Law and, theoretically, gifts which may create conflict of interest constitute a crime. In India, as a general rule, public servants are prohibited from accepting lavish hospitality or frequent hospitality from any individual, industrial or commercial firms, organisations, etc., having or likely to have official dealings with such a public servant. In Indonesia, any gift to a public official must first be approved by the government. Any undisclosed gift is deemed as an offence.
In Japan, the Ethics Act has established gifts register and requires middle and senior level public officials to disclose gifts in excess of 5,000 yen (under USD 50). Japanese statutes do not provide a minimum threshold for a gift. The Ethics Act and the Ethics Code serve as a reference for the gifts and the public service officials cannot receive any kind of entertainment.
In Malaysia, any limit in relation to gratification, given or received, is an offence of corruption.
In Myanmar, the Anti-Corruption Law makes no clear articulation of a minimum level which makes gifts acceptable. Any gift or economic benefit could potentially constitute a bribe depending upon the context in which it is given.
In New Zealand, the Code of Conduct sets minimum expectations of behaviour for public servants, one of which is that they perform their official duties honestly and do not ask for or accept gifts, rewards or benefits which might compromise their integrity and that of their department and the public service or which might place the public servant under an obligation to another person.
In the Philippines, Presidential Decree No. 46 makes it punishable for any public officer to receive, directly or indirectly, and for private persons to give, or offer to give, gifts, presents or other valuables to a public officer during any occasion.
In Singapore, all gifts need to be approved by a permanent secretary and only gifts under SGD 50 (USD 40) can be accepted. Any gifts valued at more than SGD 50 (USD 40) can only be kept by the public official if they are donated to a governmental department or independently valued and purchased from the government by that public official.
In South Korea, there is no minimum threshold for a gift that makes it a bribe i.e. any amount of gift received is the violation of the public official bribery provision of the Criminal Code. Gifts cannot be accepted unless they are given in an appropriate occasion or circumstance.
In Vietnam, generally the giving or receiving of gifts and hospitality will be deemed a bribe under Vietnamese law if it satisfies all elements of a bribe.
What to do If your violated mistakenly?
We are so much concerned about serving every gifting we craft, If you think you have mistakenly violated any of the rules above please contact our team, we will try our best to revert your mistake; mail us at - email@example.com