Bribery

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Bribery is an act of giving money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty.

The bribe is the gift bestowed to influence the recipient's conduct. It may be any money, good, right in action, property, preferment, privilege, emolument, object of value, advantage, or merely a promise or undertaking to induce or influence the action, vote, or influence of a person in an official or public capacity.[1]

In economics, the bribe has been described as rent. Bribery in bureaucracy has been viewed as a reason for the higher cost of production of goods and services.

Forms of bribery

Photo of cash found in Jefferson's freezer in the August 2005 raid was shown to jurors on 8 July 2009

Many types of bribes exist: tip, gift, sop, perk, skim, favor, discount, waived fee/ticket, free food, free ad, free trip, free tickets, sweetheart deal, kickback/payback, funding, inflated sale of an object or property, lucrative contract, donation, campaign contribution, fundraiser, sponsorship/backing, higher paying job, stock options, secret commission, or promotion (rise of position/rank).

One must be careful of differing social and cultural norms when examining bribery. Expectations of when a monetary transaction is appropriate can differ from place to place. Political campaign contributions in the form of cash, for example, are considered criminal acts of bribery in some countries, while in the United States, provided they adhere to election law, are legal. Tipping, for example, is considered bribery in some societies, while in others the two concepts may not be interchangeable.

In some Spanish-speaking countries, bribes are referred to as "mordida" (literally, "bite"); in Arab countries they are Rachwa. French-speaking countries often use the expressions "dessous-de-table" ("under-the-table" commissions), "pot-de-vin" (literally, "wine-pot"), or "commission occulte" ("secret commission" or "kickback"). While the last two expressions contain inherently a negative connotation, the expression "dessous-de-table" can be often understood as a commonly accepted business practice (for instance, on the occasion of a real estate transaction before the notary, a partial payment made between the buyer and seller; needless to say, this is a good way to launder money). In German, the common term is Schmiergeld ("smoothing money").

The offence may be divided into two great classes: the one, where a person invested with power is induced by payment to use it unjustly; the other, where power is obtained by purchasing the suffrages of those who can impart it. Likewise, the briber might hold a powerful role and control the transaction; or in other cases, a bribe may be effectively extracted from the person paying it, although this is better known as extortion.

The forms that bribery take are numerous. For example, a motorist might bribe a police officer not to issue a ticket for speeding, a citizen seeking paperwork or utility line connections might bribe a functionary for faster service.

Bribery may also take the form of a secret commission, a profit made by an agent, in the course of his employment, without the knowledge of his principal. Euphemisms abound for this (commission, sweetener, kick-back etc.) Bribers and recipients of bribery are likewise numerous although bribers have one common denominator and that is the financial ability to bribe.

Bribery around the world is estimated at about $1 trillion (£494bn).[2]

As indicated on the pages devoted to political corruption, efforts have been made in recent years by the international community to encourage countries to dissociate and incriminate as separate offences, active and passive bribery. From a legal point of view, active bribery can be defined for instance as the promising, offering or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions. (article 2 of the Criminal Law Convention on Corruption (ETS 173) of the Council of Europe). Passive bribery can be defined as the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions (article 3 of the Criminal Law Convention on Corruption (ETS 173)).

The reason for this dissociation is to make the early steps (offering, promising, requesting an advantage) of a corrupt deal already an offence and, thus, to give a clear signal (from a criminal policy point of view) that bribery is not acceptable. Besides, such a dissociation makes the prosecution of bribery offences easier since it can be very difficult to prove that two parties (the bribe-giver and the bribe-taker) have formally agreed upon a corrupt deal. Besides, there is often no such formal deal but only a mutual understanding, for instance when it is common knowledge in a municipality that to obtain a building permit one has to pay a "fee" to the decision maker to obtain a favourable decision.

Government

Article II, Section 4 of the United States Constitution

A grey area may exist when payments to smooth transactions are made. United States law is particularly strict in limiting the ability of businesses to pay for the awarding of contracts by foreign governments; however, the Foreign Corrupt Practices Act contains an exception for "grease payments"; very basically, this allows payments to officials in order to obtain the performance of ministerial acts which they are legally required to do, but may delay in the absence of such payment. In some countries, this practice is the norm, often resulting from a developing nation not having the tax structure to pay civil servants an adequate salary. Nevertheless, most economists regard bribery as a bad thing because it encourages rent seeking behaviour. A state where bribery has become a way of life is a kleptocracy.

Tax treatment of bribes

The tax status of bribes is an issue for governments since the bribery of government officials impedes the democratic process and may interfere with good government. In some countries, such bribes are considered tax-deductible payments. However, in 1996, in an effort to discourage bribery, the OECD Council recommended that member countries cease to allow the tax-deductibility of bribes to foreign officials. This was followed by the signing of the Anti-Bribery Convention. Since that time, the majority of the OECD countries which are signatories of the convention have revised their tax policies according to this recommendation and some have extended the measures to bribes paid to any official, sending the message that bribery will no longer be tolerated in the operations of the government.[3]

Medicine

Pharmaceutical corporations may seek to reward through gifts doctors for heavy prescription of their drugs. The American Medical Association has published ethical guidelines for gifts from industry which include the tenet that physicians should not accept gifts if they are given in relation to the physician’s prescribing practices.[4] Doubtful cases include grants for traveling to medical conventions that double as tourist trips.

Dentists often receive samples of home dental care products such as toothpaste, which are of negligible value; somewhat ironically, dentists in a television commercial will often state that they get these samples but pay to use the sponsor's product.

In countries offering state-subsidized or nationally funded healthcare where medical professionals are underpaid, patients may use bribery to solicit the standard expected level of medical care. For example, in many formerly Communist countries from what used to be the Eastern Bloc it may be customary to offer expensive gifts to doctors and nurses for the delivery of service at any level of medical care in the non-private health sector.[5][6]

Politics

Demonstration in Washington, DC

Politicians receive campaign contributions and other payoffs from powerful corporations, organizations or individuals in return for making choices in the interests of those parties, or in anticipation of favorable policy. This is not illegal in the United States and forms a major part of campaign finance, though it is sometimes referred to as the money loop. Convictions for this form of bribery are more easy to obtain with hard evidence, that is a specific amount of money linked to a specific action by the bribed. Such evidence is frequently obtained using undercover agents, since evidence of a quid pro quo relation difficult to prove. See also influence peddling and political corruption.

Business

A campaign to prevent bribes in Zambia.
Main article: Commercial bribery

Employees, managers, or salespeople of a business may offer money or gifts to a potential client in exchange for business.

For example, in 2006, German prosecutors conducted a wide-ranging investigation of Siemens AG to determine if Siemens employees paid bribes in exchange for business.

In some cases where the system of law is not well-implemented, bribes may be a way for companies to continue their businesses. In the case, for example, custom officials may harass a certain firm or production plant, officially stating they are checking for irregularities, halting production or stalling other normal activities of a firm. The disruption may cause losses to the firm that exceed the amount of money to pay off the official. Bribing the officials is a common way to deal with this issue in countries where there exists no firm system of reporting these semi-illegal activities. A third party, known as a White Glove, may be involved to act as a clean middleman.

Specialist consultancies have been set up to help multinational companies and small and medium enterprises with a commitment to anti-corruption to trade more ethically and benefit from compliance with the law.

Contracts based on or involving the payment or transfer of bribes ("corruption money", "secret commissions", "pots-de-vin", "kickbacks") are void.[7]

In 2012, The Economist noted:

Bribery would be less of a problem if it wasn't also a solid investment. A new paper by Raghavendra Rau of Cambridge University and Yan Leung Cheung and Aris Stouraitis of the Hong Kong Baptist University examines 166 high-profile cases of bribery since 1971, covering payments made in 52 countries by firms listed on 20 different stockmarkets. Bribery offered an average return of 10-11 times the value of the bung paid out to win a contract, measured by the jump in stockmarket value when the contract was won. America's Department of Justice found similarly high returns in cases it has prosecuted.[8]

In addition, a survey conducted by auditing firm Ernst & Young (EY) in 2012 found that 15 percent of top financial executives are willing to pay briberies in order to keep or win business. Another 4 percent said they would be willing to misstate financial performance. This alarming indifference represents a huge risk to their business, given their responsibility.[9]

Sport corruption

Main article: Match fixing

Referees and scoring judges may be offered money, gifts, or other compensation to guarantee a specific outcome in an athletic or other sports competition. A well-known example of this manner of bribery in sport would be the 2002 Olympic Winter Games figure skating scandal, where the French judge in the pairs competition voted for the Russian skaters in order to secure an advantage for the French skaters in the ice dancing competition.

Additionally, bribes may be offered by cities in order to secure athletic franchises, or even competitions, as happened with the 2002 Winter Olympics. It is common practice for cities to "bid" against each other with stadiums, tax benefits, and licensing deals to secure or keep professional sports franchises.

Athletes themselves can be paid to under-perform, generally so that a gambler or gambling syndicate can secure a winning bet. A classic example of this was the 1919 World Series, better known as the Black Sox Scandal.

Finally, in some sports, elements of the game may be tampered with – the classic example being from horse racing, where a groom or other person with access to the horses before the race may be bribed to over-feed an animal, or even administer a sedative or amphetamine (known as "horse doping" in order to make a horse faster or slower to respectively increase or reduce their chances of winning). Another type of bribery done for financial gain through gambling is to bet against a clear favorite, and ensure that the favorite has an "off day", or attempt to "hop up" a long shot in an attempt to collect big winnings by betting on the heavy odds against it.

Bribery prevention

International businesses are looking to implement strong local programs dedicated to the prevention of bribery. But programs of prevention need to be properly designed with international standards of best practice. To ensure respect for a program, whether it be on the part of employees or business partners, external verification is necessary. International best practices such as the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Annex 2; the ISO 26000 norm (section 6.6.3) or TI Business Principles for Countering Bribery[10] are used in external verification[11] processes to measure and ensure that a program of bribery prevention works and is consistent with international standards. Another reason for businesses to undergo external verification of their bribery prevention programs is that it means evidence can be provided to assert that all that was possible was done to prevent corruption. Companies are unable to guarantee corruption has never occurred; what they can do is provide evidence that they did their best to prevent it.

Notable instances of bribery

  • Spiro Agnew, American Vice President who resigned from office in the aftermath of discovery that he took bribes while serving as Governor of Maryland
  • Duke Cunningham, United States Navy veteran and former Republican member of the United States House of Representatives from California's 50th Congressional District resigned after pleading guilty to accepting at least $2.4 million in bribes and under-reporting his income for 2004.
  • Gerald Garson, former New York Supreme Court Justice, convicted of accepting bribes to manipulate outcomes of divorce proceedings.
  • John Jenrette, former American politician convicted of accepting a bribe in the FBI's Abscam operation
  • Martin Thomas Manton, former U.S. federal judge convicted of accepting bribes
  • Pakistan cricket spot-fixing controversy, Mohammad Asif, Mohammad Amir and Salman Butt, Pakistani cricketers found guilty of accepting bribes to bowl no balls against England at certain times.
  • John B. Swainson, former Michigan governor and justice of the Michigan Supreme Court was acquitted of accepting a bribe, but was convicted for lying about it.

Notable instances of rejected bribery

See also

Wikiquote has a collection of quotations related to: Bribery
Wikisource has the text of the 1911 Encyclopædia Britannica article Bribery.

References

  1. ↑ See generally T. Markus Funk, "Don't Pay for the Misdeeds of Others: Intro to Avoiding Third-Party FCPA Liability," 6 BNA White Collar Crime Report 33 (January 14, 2011) (discussing bribery in the context of the Foreign Corrupt Practices Act).
  2. ↑ African corruption 'on the wane', 10 July 2007, BBC News
  3. ↑ “Tax Treatment of Bribes: About”, OECD Centre for Tax Policy and Administration, OECD.org, 17 July 2007
  4. ↑ http://www.ama-assn.org/ama/pub/category/4001.html
  5. ↑ Lewis, Mauree. (2000). Who is paying for healthcare in Eastern Europe and Central Asia? World Bank Publications.
  6. ↑ Bribes for basic care in Romania. The Guardian Weekly (March 26th 2008).
  7. ↑ International principle of law Trans-Lex.org
  8. ↑ "You get who you pay for". The Economist (2 June 2012). Retrieved 2 June 2012. 
  9. ↑ Bribing and Taking Bribes CFO Insight Magazine, May 2012
  10. ↑ "TI Business Principles for Countering Bribery. Available Online. Accessed on May 23, 2012" (PDF). Retrieved 2013-04-20. 
  11. ↑ "Anti-Corruption and Bribery". Sgs.com. Retrieved 2013-04-20. 
  12. ↑ News - I rejected Charles Taylor's $450,000 bribe -Sacked Customs Officer. Odili.net. Retrieved on 2013-07-12.

External links

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