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Drawing Sensible Borders for the Definition of 'Foreign Official' Under the FCPA

27 Pages Posted: 1 Sep 2013  

Alexander G. Hughes

Quinn Emanuel Urquhart & Sullivan LLP

Date Written: May 3, 2013


This note analyzes recent developments surrounding the definition of 'foreign official' under the FCPA and proposes a bright-line test for assessing whether an entity qualifies as an 'instrumentality' of a foreign government, thereby rendering its employees foreign officials under the terms of the statute.

The FCPA has been one of the key points of emphasis for enforcement actions by both the SEC and DOJ over the past few years, with the top-10 highest dollar value penalties in the FCPA’s history all being handed down since 2008. Compliance costs for companies have gone up considerably due to this increased emphasis, combined with the uncertainty the statute’s language engenders. This note provides an easily workable test that will eliminate this uncertainty and will promote greater consistency and predictability in the FCPA’s application. This predictability will be especially pronounced in regards to the FCPA's application to partially state-owned enterprises and will allow multinational corporations to do business abroad without worrying about unwittingly violating the FCPA.

Keywords: FCPA, Foreign Corrupt Practices Act, SEC enforcement, DOJ enforcement, bribery, foreign, foreign official, instrumentality

JEL Classification: K20, K22, K42, K49, H87, F10, F52, F60, F63, F68, F69

Suggested Citation

Hughes, Alexander G., Drawing Sensible Borders for the Definition of 'Foreign Official' Under the FCPA (May 3, 2013). American Journal of Criminal Law, Vol. 40, No. 3, 2013. Available at SSRN:

Alexander Hughes (Contact Author)

Quinn Emanuel Urquhart & Sullivan LLP ( email )

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