Michigan Journal of International Law
Volume 35 Issue 4
2014
The Two Faces of Bribery: International Corruption Pathways
Meet Conflicting Legislative Regimes
Jeffrey R. Boles
Temple University
Follow this and additional works at: https://repository.law.umich.edu/mjil
Part of the Criminal Law Commons, International Law Commons, and the Rule of Law Commons
Recommended Citation
Jeffrey R. Boles, The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative
Regimes, 35 MICH. J. INT'L L. 673 (2014).
Available at: https://repository.law.umich.edu/mjil/vol35/iss4/1
This Article is brought to you for free and open access by the Michigan Journal of International Law at University of
Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of
International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more
information, please contact .
, ARTICLES
THE TWO FACES OF BRIBERY:
INTERNATIONAL CORRUPTION PATHWAYS
MEET CONFLICTING LEGISLATIVE REGIMES
Jeffrey R. Boles*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674
I. PUBLIC AND PRIVATE BRIBERY ARE TWIN
MANIFESTATIONS OF CORRUPTION . . . . . . . . . . . . . . . . . . . . . . 677
A. The International Fight against Corruption . . . . . . . . . . . 677
B. Global Corruption in the Public Sector: Domestic
and Transnational Public Bribery . . . . . . . . . . . . . . . . . . . 678
1. A Brief Overview of Public Bribery and Its
Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678
2. A Strong International Consensus Exists to
Deter Public Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . 680
C. Global Corruption in the Private Sector: Domestic
and Transnational Private Bribery . . . . . . . . . . . . . . . . . . . 681
1. A Brief Overview of Private Bribery and Its
Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 681
2. Private Bribery Is Inconsistently Criminalized,
with Minimal Enforcement Globally . . . . . . . . . . . . 684
II. DISMANTLING THE CLASSIC DISTINCTION BETWEEN
PUBLIC AND PRIVATE BRIBERY . . . . . . . . . . . . . . . . . . . . . . . . . 688
A. Public and Private Bribery Embody Parallel
Conceptual Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 690
1. Public and Private Bribery Are Twin
Manifestations of Corruption . . . . . . . . . . . . . . . . . . . 690
2. Public and Private Bribery Are Functionally
Equivalent Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 691
B. Public and Private Bribery Jointly Harm Public and
Private Sector Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696
C. The Merging of Public and Private Bribery
Boundaries in Domestic and International Markets
through Privatization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 698
1. Privatization Is Internationally Omnipresent . . . . . 698
2. Privatization Obfuscates Public and Private
Bribery Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . 701
* Assistant Professor, Department of Legal Studies, Fox School of Business, Temple
University. Ph.D., 2006, University of California, Berkeley; J.D., 2006, University of
California, Berkeley School of Law.
673
,674 Michigan Journal of International Law [Vol. 35:673
III. REFORMING TRANSNATIONAL APPROACHES TO PRIVATE
BRIBERY LEGISLATION AND ENFORCEMENT . . . . . . . . . . . . . 704
A. Nations Should Criminalize Private Bribery in Its
Domestic and Transnational Forms . . . . . . . . . . . . . . . . . . 704
1. A Host of Historical Factors Have Discouraged
Private Bribery Criminalization . . . . . . . . . . . . . . . . . 705
2. Governments Should Criminalize Domestic and
Transnational Private Bribery . . . . . . . . . . . . . . . . . . . 707
B. Merging Public and Private Bribery Prohibitions into
Comprehensive Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 710
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713
INTRODUCTION
Suppose a government agency tasks its purchasing agent with buying a
set of computer servers for the agency’s use, and the agent contacts a tech-
nology company to make the purchase. After selecting the needed servers,
the agent learns of the servers’ fair market value but does not negotiate
with the technology company to obtain the lowest possible price. Instead,
unbeknownst to the government, the agent agrees with the technology
company’s sales manager to purchase the servers on behalf of the govern-
ment for an amount significantly above their fair market value, and, in
return, the company agrees to give the agent a hefty side payment for
inflating the company’s profits. In this scenario, the technology company
gives a side payment to the purchasing agent to influence the agent’s offi-
cial act–purchasing the servers for the government. Their agreement fits
the classic definition of public sector bribery,1 a crime outlawed in virtu-
ally every jurisdiction in the world.2 Both parties could face heavy prison
sentences and fines for engaging in this corrupt act.3
Imagine now that the purchasing agent’s employer is not a govern-
ment agency, but instead a private sector company. The purchasing agent
buys the same quantity of identical servers on behalf of her company for
the same inflated price and receives the same side payment unbeknownst
to her employer. Under this scenario, the arrangement between the
purchasing agent and technology company still constitutes bribery, but of
1. See, e.g., BLACK’S LAW DICTIONARY 187 (7th ed. 1999) (bribery is “the corrupt
payment, receipt, or solicitation of a private favor for official action.”); 11 C.J.S. Bribery § 1
(2008) (defining bribery). Assume for the purpose of this scenario that the purchasing agent
qualifies under the pertinent bribery statute as a “public official.” See, e.g., 18 U.S.C. § 201
(2012) (defining public official as including any “employee or person acting for or on behalf
of the United States, or any department, agency or branch of Government thereof, including
the District of Columbia, in any official function, under or by authority of any such depart-
ment, agency, or branch of Government”).
2. See Claire Moore Dickerson, Political Corruption: Free-Flowing Opportunism, 14
CONN. J. INT’L L. 393, 395 (1999) (“[S]cholars have asserted that every country has laws
against bribery of its own officials.”).
3. See Philip M. Nichols, The Business Case for Complying with Bribery Laws, 49 AM.
BUS. L.J. 325, 355–56 (2012) (discussing penalties for domestic public bribery and listing pen-
alty ranges).
, Summer 2014] Two Faces of Bribery 675
a form that transpires wholly within the private sector, as no government
official is involved. Sanctioning this type of bribery, known as private brib-
ery or commercial bribery, garners wildly inconsistent treatment from gov-
ernments across the world.4 The perpetrators of this offense may face
heavy prison sentences and fines, nominal fines, or no criminal sanctions,
depending upon the jurisdiction in which the private bribery agreement
occurs.5
Public and private bribery are twin forms of corruption, with public
officials and private persons, respectively, abusing entrusted power for
personal gain by accepting bribes.6 Both bribery forms share core concep-
tual features of fiduciary duty violations and betrayals of trust and can be
viewed as essentially the same offense–perpetrators corruptly giving or re-
ceiving benefits in exchange for undue advantage. In fact, the only funda-
mental difference between the two forms is that in private bribery, the
recipient is a private agent rather than a public official.
A significant volume of research demonstrates that public and private
bribery each generate a host of economic and social harms that impair
governments, commercial entities, global markets, and the general public.7
For instance, both bribery forms have the power to disrupt international
market economies by distorting fair competition within and across mar-
kets, interfering with global trade, and hampering economic develop-
ment.8 Grounded in deceit, both bribery forms also bring detrimental
effects to social spheres in part by undermining the moral virtues of trust,
confidence, and loyalty necessary for the development and maintenance of
healthy interpersonal and economic relationships.9
While public and private bribery “are two variants of the same censur-
able conduct,”10 stakeholders respond to the two bribery forms in radi-
cally dissimilar ways. Public bribery generates widespread anger and
concern from citizens and growing remedial action from governments
4. See Barbara Huber, Supranational Measures, in PRIVATE COMMERCIAL BRIBERY
559, 564 (Gunter Heine et al. eds., 2003) (discussing rates of private bribery criminalization).
5. See infra Part I.C.2 (analyzing private bribery penalties).
6. See ORG. FOR ECON. CO-OPERATION & DEV. [OECD], CORRUPTION: A GLOS-
SARY OF INTERNATIONAL STANDARDS IN CRIMINAL LAW 22 (2008), available at http://
www.oecd.org/daf/anti-bribery/41194428.pdf [hereinafter OECD CORRUPTION] (defining
corruption as the “abuse of public or private office for personal gain”).
7. See, e.g., Tor Krever, Curbing Corruption? The Efficacy of the Foreign Corrupt
Practices Act, 33 N.C. J. INT’L L. & COM. REG. 83, 86 (2007).
8. See, e.g., Franklin A. Gevurtz, Commercial Bribery and the Sherman Act: The Case
for Per Se Illegality, 42 U. MIAMI L. REV. 365, 384 (1987) (explaining how bribers “drive out
competitors and thereby achieve a significant increase in market concentration”).
9. See, e.g., State v. Bunch, 177 S.W. 932, 935 (Ark. 1915) (“Bribery is an offense
against public justice. The essence of it is the prostitution of a public trust, the betrayal of
public interests, the debauchment of the public conscience.”).
10. Antonio Argandoña, The 1996 ICC Report on Extortion and Bribery in Interna-
tional Business Transactions, 6 BUS. ETHICS: A EUR. REV. 134, 142 (1997).
Volume 35 Issue 4
2014
The Two Faces of Bribery: International Corruption Pathways
Meet Conflicting Legislative Regimes
Jeffrey R. Boles
Temple University
Follow this and additional works at: https://repository.law.umich.edu/mjil
Part of the Criminal Law Commons, International Law Commons, and the Rule of Law Commons
Recommended Citation
Jeffrey R. Boles, The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative
Regimes, 35 MICH. J. INT'L L. 673 (2014).
Available at: https://repository.law.umich.edu/mjil/vol35/iss4/1
This Article is brought to you for free and open access by the Michigan Journal of International Law at University of
Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of
International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more
information, please contact .
, ARTICLES
THE TWO FACES OF BRIBERY:
INTERNATIONAL CORRUPTION PATHWAYS
MEET CONFLICTING LEGISLATIVE REGIMES
Jeffrey R. Boles*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674
I. PUBLIC AND PRIVATE BRIBERY ARE TWIN
MANIFESTATIONS OF CORRUPTION . . . . . . . . . . . . . . . . . . . . . . 677
A. The International Fight against Corruption . . . . . . . . . . . 677
B. Global Corruption in the Public Sector: Domestic
and Transnational Public Bribery . . . . . . . . . . . . . . . . . . . 678
1. A Brief Overview of Public Bribery and Its
Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678
2. A Strong International Consensus Exists to
Deter Public Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . 680
C. Global Corruption in the Private Sector: Domestic
and Transnational Private Bribery . . . . . . . . . . . . . . . . . . . 681
1. A Brief Overview of Private Bribery and Its
Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 681
2. Private Bribery Is Inconsistently Criminalized,
with Minimal Enforcement Globally . . . . . . . . . . . . 684
II. DISMANTLING THE CLASSIC DISTINCTION BETWEEN
PUBLIC AND PRIVATE BRIBERY . . . . . . . . . . . . . . . . . . . . . . . . . 688
A. Public and Private Bribery Embody Parallel
Conceptual Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 690
1. Public and Private Bribery Are Twin
Manifestations of Corruption . . . . . . . . . . . . . . . . . . . 690
2. Public and Private Bribery Are Functionally
Equivalent Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 691
B. Public and Private Bribery Jointly Harm Public and
Private Sector Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696
C. The Merging of Public and Private Bribery
Boundaries in Domestic and International Markets
through Privatization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 698
1. Privatization Is Internationally Omnipresent . . . . . 698
2. Privatization Obfuscates Public and Private
Bribery Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . 701
* Assistant Professor, Department of Legal Studies, Fox School of Business, Temple
University. Ph.D., 2006, University of California, Berkeley; J.D., 2006, University of
California, Berkeley School of Law.
673
,674 Michigan Journal of International Law [Vol. 35:673
III. REFORMING TRANSNATIONAL APPROACHES TO PRIVATE
BRIBERY LEGISLATION AND ENFORCEMENT . . . . . . . . . . . . . 704
A. Nations Should Criminalize Private Bribery in Its
Domestic and Transnational Forms . . . . . . . . . . . . . . . . . . 704
1. A Host of Historical Factors Have Discouraged
Private Bribery Criminalization . . . . . . . . . . . . . . . . . 705
2. Governments Should Criminalize Domestic and
Transnational Private Bribery . . . . . . . . . . . . . . . . . . . 707
B. Merging Public and Private Bribery Prohibitions into
Comprehensive Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 710
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713
INTRODUCTION
Suppose a government agency tasks its purchasing agent with buying a
set of computer servers for the agency’s use, and the agent contacts a tech-
nology company to make the purchase. After selecting the needed servers,
the agent learns of the servers’ fair market value but does not negotiate
with the technology company to obtain the lowest possible price. Instead,
unbeknownst to the government, the agent agrees with the technology
company’s sales manager to purchase the servers on behalf of the govern-
ment for an amount significantly above their fair market value, and, in
return, the company agrees to give the agent a hefty side payment for
inflating the company’s profits. In this scenario, the technology company
gives a side payment to the purchasing agent to influence the agent’s offi-
cial act–purchasing the servers for the government. Their agreement fits
the classic definition of public sector bribery,1 a crime outlawed in virtu-
ally every jurisdiction in the world.2 Both parties could face heavy prison
sentences and fines for engaging in this corrupt act.3
Imagine now that the purchasing agent’s employer is not a govern-
ment agency, but instead a private sector company. The purchasing agent
buys the same quantity of identical servers on behalf of her company for
the same inflated price and receives the same side payment unbeknownst
to her employer. Under this scenario, the arrangement between the
purchasing agent and technology company still constitutes bribery, but of
1. See, e.g., BLACK’S LAW DICTIONARY 187 (7th ed. 1999) (bribery is “the corrupt
payment, receipt, or solicitation of a private favor for official action.”); 11 C.J.S. Bribery § 1
(2008) (defining bribery). Assume for the purpose of this scenario that the purchasing agent
qualifies under the pertinent bribery statute as a “public official.” See, e.g., 18 U.S.C. § 201
(2012) (defining public official as including any “employee or person acting for or on behalf
of the United States, or any department, agency or branch of Government thereof, including
the District of Columbia, in any official function, under or by authority of any such depart-
ment, agency, or branch of Government”).
2. See Claire Moore Dickerson, Political Corruption: Free-Flowing Opportunism, 14
CONN. J. INT’L L. 393, 395 (1999) (“[S]cholars have asserted that every country has laws
against bribery of its own officials.”).
3. See Philip M. Nichols, The Business Case for Complying with Bribery Laws, 49 AM.
BUS. L.J. 325, 355–56 (2012) (discussing penalties for domestic public bribery and listing pen-
alty ranges).
, Summer 2014] Two Faces of Bribery 675
a form that transpires wholly within the private sector, as no government
official is involved. Sanctioning this type of bribery, known as private brib-
ery or commercial bribery, garners wildly inconsistent treatment from gov-
ernments across the world.4 The perpetrators of this offense may face
heavy prison sentences and fines, nominal fines, or no criminal sanctions,
depending upon the jurisdiction in which the private bribery agreement
occurs.5
Public and private bribery are twin forms of corruption, with public
officials and private persons, respectively, abusing entrusted power for
personal gain by accepting bribes.6 Both bribery forms share core concep-
tual features of fiduciary duty violations and betrayals of trust and can be
viewed as essentially the same offense–perpetrators corruptly giving or re-
ceiving benefits in exchange for undue advantage. In fact, the only funda-
mental difference between the two forms is that in private bribery, the
recipient is a private agent rather than a public official.
A significant volume of research demonstrates that public and private
bribery each generate a host of economic and social harms that impair
governments, commercial entities, global markets, and the general public.7
For instance, both bribery forms have the power to disrupt international
market economies by distorting fair competition within and across mar-
kets, interfering with global trade, and hampering economic develop-
ment.8 Grounded in deceit, both bribery forms also bring detrimental
effects to social spheres in part by undermining the moral virtues of trust,
confidence, and loyalty necessary for the development and maintenance of
healthy interpersonal and economic relationships.9
While public and private bribery “are two variants of the same censur-
able conduct,”10 stakeholders respond to the two bribery forms in radi-
cally dissimilar ways. Public bribery generates widespread anger and
concern from citizens and growing remedial action from governments
4. See Barbara Huber, Supranational Measures, in PRIVATE COMMERCIAL BRIBERY
559, 564 (Gunter Heine et al. eds., 2003) (discussing rates of private bribery criminalization).
5. See infra Part I.C.2 (analyzing private bribery penalties).
6. See ORG. FOR ECON. CO-OPERATION & DEV. [OECD], CORRUPTION: A GLOS-
SARY OF INTERNATIONAL STANDARDS IN CRIMINAL LAW 22 (2008), available at http://
www.oecd.org/daf/anti-bribery/41194428.pdf [hereinafter OECD CORRUPTION] (defining
corruption as the “abuse of public or private office for personal gain”).
7. See, e.g., Tor Krever, Curbing Corruption? The Efficacy of the Foreign Corrupt
Practices Act, 33 N.C. J. INT’L L. & COM. REG. 83, 86 (2007).
8. See, e.g., Franklin A. Gevurtz, Commercial Bribery and the Sherman Act: The Case
for Per Se Illegality, 42 U. MIAMI L. REV. 365, 384 (1987) (explaining how bribers “drive out
competitors and thereby achieve a significant increase in market concentration”).
9. See, e.g., State v. Bunch, 177 S.W. 932, 935 (Ark. 1915) (“Bribery is an offense
against public justice. The essence of it is the prostitution of a public trust, the betrayal of
public interests, the debauchment of the public conscience.”).
10. Antonio Argandoña, The 1996 ICC Report on Extortion and Bribery in Interna-
tional Business Transactions, 6 BUS. ETHICS: A EUR. REV. 134, 142 (1997).
