Bribery

What Is Bribery?

Under the United Nations Convention against Corruption (UNCAC), bribery is the promise, offering, or giving of an “undue advantage” to a public official — directly or indirectly, for the official or for someone else — in order that the official act or refrain from acting in the exercise of official duties.

The Convention criminalizes both sides of that exchange: Article 15 covers the offer itself, and separately criminalizes a public official’s solicitation or acceptance of the same advantage. Article 16 extends the identical standard to foreign public officials and officials of international organizations — the exact conduct the FCPA targets when it involves a publicly traded company.

For example, a company offering a customs official cash to skip an inspection is a bribe — and so is a vendor giving a purchasing manager a kickback to win a contract.

It is quite literally at the center of most corruption: one party pays, and the other party uses their office or position to deliver something they would not otherwise have given.

Legally, bribery has a few core elements.

There must be a thing of value — which the law reads broadly, covering far more than cash. There must also be an intent to influence an official act or a business decision. And lastly, in the cases that matter most for whistleblowers, there must be a connection to a public official or a company that answers to U.S. securities law.

Bribery is also the supply side of a two-sided offense, with the other side being extortion. Where extortion is the corrupt demand, bribery is most often the corrupt offer. These two point to the same transaction, but seen from opposite ends, which is why anti-corruption law generally criminalizes both giving and receiving.

Key Takeaways

• Bribery is the corrupt transfer of something of value to sway an official act or business decision in favor of the person giving the bribe. The “thing of value” is defined broadly and can include cash, gifts, travel, jobs, tuition, and other benefits — not just money.
• The Foreign Corrupt Practices Act (FCPA) is the primary U.S. anti-bribery law. It reaches bribery of foreign officials by publicly traded companies and others connected to the United States, anywhere in the world – regardless of citizenship.
• International law, such as the United Nations Convention against Corruption (UNCAC) requires nearly every country to criminalize bribery. However, it provides no enforcement mechanism of its own — which is a large part of why the FCPA, backed by real penalties and a whistleblower reward program, has become the most powerful anti-bribery tool in practice.
• Whistleblowers who report foreign bribery by publicly traded companies can do so through the SEC Whistleblower Program and may be eligible for awards of 10–30% of sanctions collected over $1 million, depending on the specific facts.
• The largest FCPA cases in history — Goldman Sachs, Siemens, Glencore, Ericsson — all involved publicly traded companies, the exact category the SEC program covers.

Bribery vs. Extortion vs. a Gift

Bribery can often be confused with extortion and gifting. The distinctions matter, because they can be the difference between a crime and an ordinary business courtesy.

• Bribery vs. extortion: bribery starts when someone offers a payment to get a benefit. Contrastingly, extortion is when an official uses their power to pressure someone into paying a bribe. For example, a company that offers a customs officer $10,000 to skip an inspection is bribing; an officer who refuses to release goods until $10,000 appears is extorting. The same payment can be both, and international law treats the official’s demand and the payer’s offer as two sides of the same offense.
• Bribery vs. a gift: not every gift is a bribe. What turns a gift into a bribe is intent – the thing of value is given to influence a specific official act or business decision, rather than as a genuine gift. A modest holiday gift to a client is ordinarily lawful; however, the same gift, given to win a specific contract that is under review, may not be. Gifts like cars, lavish vacations, and other luxury items are all suspect gifts concealed as bribes.

Types of Bribery

Bribery takes several distinct forms, and only some of them fall within the reach of the SEC whistleblower reward programs.

• Foreign Bribery: paying or offering something of value to a foreign government official to win or keep business. This is the core of the FCPA and the category most relevant to international whistleblowers.
• Public Bribery (within U.S.): bribing a U.S. federal, state, or local official, prosecuted under domestic bribery statutes rather than the FCPA.
• Private Bribery: bribery between private parties with no government official involved, such as paying a purchasing manager a kickback to steer a contract.
• Facilitation Payments: these are small payments to low-level officials to speed up a routine, non-discretionary government action the payer is already entitled to, like a permit.

How Bribery Works

When determining what constitutes a bribe, one must look at the “thing of value.” The idea that most people have is a cash bribe.

However, in practice, enforcement agencies read it to cover almost any benefit: luxury goods, travel and expensive entertainment, a job for an official’s relative, tuition payments, political or charitable contributions steered at an official’s request, even shopping trips for a family member.

In the SAP case below, the bribes included cash, political contributions, and luxury goods and shopping trips for officials and their relatives.

Bribery is also concealed quite well through various schemes, such as running bribes through intermediaries. This can include agents, consultants, distributors, or joint-venture partners. This makes it harder for investigators to track, and the company can maintain deniability about where the money ultimately went.

The Biggest Bribery Cases in History

The cases below involve a publicly traded company, which fell under the FCPA, and in principle, an example of the types of conduct an SEC whistleblower could report. Penalty figures link to the U.S. government’s own announcements.

Important: When taking a closer look at this list, and when you view many of the FCPA cases in general, you’ll notice how many of the companies are not American. Foreign issuers whose shares trade on U.S. exchanges fall squarely within the FCPA’s reach — one of the reasons the law functions as one of the most powerful global anti-bribery tools in existence.

Is Bribery Illegal?

International Law Created the Mandate — But Not the Enforcement

Bribery is illegal almost everywhere. The United Nations Convention against Corruption (UNCAC) requires its states parties, which is nearly every country in the world, to criminalize bribery of national public officials, foreign officials, and officials of international organizations.

But it’s important to understand that the UNCAC treaty is a set of obligations, not an enforcement agency. It has no prosecutors, levies no penalties, and depends entirely on each member state to write the crime into its own law and then actually enforce it.

So why haven’t they? Learn more: Enhancing Foreign Bribery and Money Laundering Prosecutions

Many signatories have criminalized bribery but have failed to investigate and prosecute it once it happens. The result is an agreement that bribery is wrong that is not matched by anything close to consistent enforcement. This enforcement gap has left policing cross-border bribery to a small number of countries, such as the U.S., UK, Germany, France and Switzerland.

In the United States, the FCPA Does the Work

The gap is precisely why the FCPA matters so much.

Enacted in 1977 and enforced continuously since, the Foreign Corrupt Practices Act makes it illegal for U.S. companies, foreign companies listed on U.S. exchanges, and people acting on their behalf to bribe foreign officials to obtain or retain business. It also requires publicly traded companies to keep accurate books and maintain internal accounting controls — provisions that catch the falsified records nearly every bribery scheme relies on.

The FCPA is far more powerful in practice:

• Real Penalties: the FCPA is backed by the DOJ and SEC with criminal and civil penalties sometimes reaching into the billions, and jurisdiction that follows any issuer on a U.S. exchange anywhere in the world.
• Whistleblower Incentives: through the SEC Whistleblower Program, any individual who reports FCPA violations by a publicly traded company can receive a share of the sanctions collected, provided the total monetary sanctions ordered and collected in the enforcement action (and any related actions) exceed $1,000,000.

UNCAC offers nothing comparable — no penalties, no reward, no protected reporting channel, no path for the insider who actually sees the bribe.

What About FEPA?

The Foreign Extortion Prevention Act (FEPA), now at 18 U.S.C. § 1352, makes it a crime for a foreign official to demand a bribe from a U.S. person or company.

FEPA is an important enforcement tool — but it is worth being clear that FEPA does not carry a whistleblower award program, so it is not itself a reward route. Domestic bribery of U.S. officials, meanwhile, is prosecuted under separate federal and state statutes.

Bribery and Whistleblowing

Bribery is concealed well, so when it does come to light, it’s almost always because of the people inside the company — not outside investigators.

For example: the finance manager who is asked to book a suspicious “consulting fee,” the compliance officer who finds an agent with no real function being paid large commissions, or the sales employee who is told how deals in a certain country need to be made.

For bribery involving a publicly traded company, U.S. law gives those insiders a direct and powerful channel – the SEC Whistleblower Program. Under the SEC Whistleblower Program, a whistleblower whose original information leads to a successful FCPA enforcement action with sanctions over $1 million can receive an award of 10–30% of what the government collects.

Bribery that affects the commodities or derivatives markets — for example, a bribe used to manipulate a benchmark price — can also be reported through the CFTC Whistleblower Program.

The CFTC doesn’t enforce the FCPA itself, but since 2019 it has used its own authority under the Commodity Exchange Act to pursue the same kind of foreign bribery when it touches these markets, with comparable 10–30% awards.

Both programs are open to whistleblowers regardless of nationality or where they live. A finance employee in Singapore or a sales manager in Tokyo who witnesses a U.S.-listed company paying bribes can report to the SEC and, if the case succeeds, be rewarded. They are not required to enter the United States to qualify for an award. This is the reach the UNCAC promised in principle and the FCPA delivers in practice.

Awards are not guaranteed. The information whistleblowers provide must be original and specific, and the case must meet the program’s monetary thresholds, and the enforcement action must succeed. For someone with firsthand knowledge of corporate bribery, the SEC program is among the most established and highest-paying whistleblower reward laws in the world.

How to Report Bribery

The right route depends on who committed the bribery and the type of company involved:

• A publicly traded company bribing a foreign official: report to the SEC Whistleblower Program, under the FCPA.
• Bribery in the commodities or derivatives markets: report to the CFTC Whistleblower Program.
• Bribery bundled with money laundering or sanctions evasion: may also implicate the FinCEN program.

To learn more about each program in detail, qualifying, anonymity, and protections, read our full guide: International Whistleblowing 101: Guide for Global Whistleblowers

To learn about how to report under FCPA, read the guide: How to Report Foreign Bribery Under the FCPA: International Guide

Get Legal Help Today

Bribery is subtle and rarely leaves an obvious victim in the room. It is usually structured so that everyone involved has a reason to stay silent. The insiders who recognize a suspicious payment for what it is are the reason the largest bribery schemes in history were ever exposed.

If you’ve witnessed bribery involving a U.S. publicly traded company, whether at home or abroad, the first step is a confidential conversation about your options. Our team offers confidential consultations for whistleblowers worldwide.

Frequently Asked Questions