Bribery of public officials by foreign businesses should be legal if it is a standard way business is done in the official’s country. Critically discuss.
One would assume that
the word bribery would automatically raise concerns for those who do not
participate in such exercises. However, there is an abundance of literature and
scholarly opinion arguing that there may be an over-emphasis on the moral
issues that arise as a result of the act of bribing a public official. It has
been argued that whilst British authorities and British judges are unlikely to
be sympathetic to those involved in bribery, this does not mean that these
British ideals and standards should be imposed upon the rest of the world as an
accepted norm.[1]
Studies have shown that in some countries, for example Mauritius and China,
some acts that would be classed as “bribery” in the UK are perfectly acceptable
practices in these jurisdictions.[2]
Does this however mean that they should be held as legal simply as they are
accepted elsewhere?
Some of the reasons
that the UK, and other jurisdictions that adopt the same stance, are against
the practice of bribery need to be considered. It is argued that bribery is
disadvantageous as it can distort trade competition by giving those who are
able to participate in it an unfair advantage compared to those who are not.[3]
There is also an inherent level of uncertainty that comes with bribery. Where
business opportunities and entries are judged in relation to the size of the
bribe as opposed to the business prospects of the venture, there arises a
danger that investors within the market, alongside businesses themselves, shall
be unable to ascertain how worthwhile a venture is.[4] On
top of this, the reputation of a country and its market can be detrimentally
impacted upon by its association with a bribery culture.[5]
It could be argued that
this is not the case, and that where there is a common culture of bribery this
is done on the basis of equal opportunities and every business is able to bribe
– meaning there is no distortion of trade. This argument fails to appreciate
that whilst the doors to bribery in such jurisdictions may be open to all in
form, the substance is that some companies will not be able to afford to participate and will lose out
to those who can. Equally, even those who can afford to bribe may be prevented
by their home state legislation.
However, one argument
to the contrary warrants consideration. It has been submitted that one of the reasons for businesses bribing public
officials is because there are barriers to trade which are so high that some of
the players may find them insurmountable without bribing.[6] In
this regard, it may be more prudent to tackle the arguably quasi-legitimate
motives behind bribery as opposed to expending great efforts preventing it;
after all, prevention is better than cure.
In summary, a culture
of bribery is not acceptable as it increases the transaction cost and drives
less wealthy business out of the competition. However, more efforts should be
placed on why bribery occurs.
[1]
Nick Kochan and Robin Goodyear, Corruption,
the New Corporate Challenge, (Palgrave Macmillan, 2011), 14.
[2] Ibid.
[3]
Roger Jones, et al. International Trade and
Business Law Annual, (Routledge, 2000), 63.
[4] Ibid.
[5] Ibid.
[6] Linda
Y. Yueh, The Law and Economics of
Globalisation: New Challenges for a World in Flux, (Edward Elgar
Publishing, 2009), 198.
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