International Bribery: The Moral Imperialism Critiques

The problem of bribery in international business is immediately important to consumers of unsafe products ranging from poisoned pet food to lead paint on children’s toys that are imported from countries with weak legal regimes (high levels of bribery). International bribery directly undermines environmental reforms and frustrates efforts to protect very basic human rights. Addressing the problem of bribery is central to any hope of a more or less rational free global market as bribery skews purchasing decisions. Law enforcement professionals are increasingly aware of the implications for organized groups of ordinary criminal or even terrorist gangs. The corporate compliance industry is booming. The problem is vast, and the consequences are significant. Law students who are preparing themselves for international business practice are left virtually ignorant about the legal frameworks, the risks to their clients, and the personal criminal risks they potentially face as gatekeepers. The U.S. Foreign Corrupt Practices Act (FCPA) which criminally prohibits U.S. corporations (and their lawyers) from bribing officials of foreign governments in order to obtain business has been in effect for thirty years; all OECD member states have ratified the Anti-Bribery Convention; more than 100 nations have ratified the U.N. Convention Against Corruption. Perhaps most importantly, the larger ethical and social policy aspects of these problems are simply not taught, leaving law students entering global business ignorant and vulnerable. The question is why comparatively little legal scholarship is addressing the problem; why law professors are not training their students as the business schools are doing? Why don’t legal educators want to talk about international bribery? U.S. criminal laws prohibiting bribery and money laundering are covered only briefly in typical international business transaction courses, and not even mentioned in the standard U.S. professional responsibility or business organization courses. Law professors are uncomfortable with the topic, I think, because of a well intentioned discomfort with the idea of imposing Western moral values on cultures and systems which are vastly different from our own. Most of us value tolerance and abhor the idea of imposing our own values indiscriminately on others. These noble reservations are often shared by our law students. In this article, I examine in depth that facet of the scholarly debate. The primary concern is that by criminalizing bribery of foreign officials, the U.S. is unilaterally and forcibly imposing American values about bribery on foreign cultures which have very different customs regarding gift giving. The charge of U.S. moral imperialism has great resonance not only among many American law students, but very significantly among international audiences in both developed and developing economies. It is my hope that by carefully examining the moral imperialism critiques from a variety of perspectives we can advance the discussion among legally trained audiences in the North (U.S., Canada, Europe) as well as encouraging a productive dialogue with legal, government and business colleagues in developing and transition South nations. I have been teaching a course covering international bribery for the past eight years. I developed this course after spending one and a half years in Beijing, China, as a U.S. Fulbright professor at Peking University Law School teaching rule of law. My Chinese law students asked for this course; my American and other international law students have taught me that before we can address the technical legal issues, we must first carefully examine our noble reservations about moral imperialism. This article is my best effort to help the next generation of global lawyers begin to think about a very basic and significant problem; bribery and moral imperialism.

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