Official Bribery and Commercial Bribery: Should They be Distinguished?

Under the traditional Anglo-American approach, payments paid to, or received by, a public official in return for official acts constitute a bribe, while payments paid to, or received by, a commercial actor typically do not. But the law in both the U.K. and the U.S. has been changing – most dramatically in the recently enacted Bribery Act 2010, which criminalizes both official and commercial bribery, and draws no distinction between them. Under US law, the traditional distinction between commercial and official bribery remains sharper, though even here there has been a blurring. Which approach makes more sense? Should acceptance of a bribe by a private employee even be treated as a crime? Assuming it should, should it be treated as any less serious a crime than acceptance of a bribe by a government official? And what about the giving of a bribe to a private employee: how should that be treated in comparison to the giving of a bribe to a government official? In this chapter, I argue that accepting or giving a bribe in the commercial context should indeed be a crime, but one that is conceptually separate from accepting and giving a bribe in the government context