Abstract
The Foreign Corrupt Practices Act (FCPA), following extensive investigations by Congress into United States corporations and its passage in 1977, prohibits corporation or individual from giving “anything of value” to a “foreign official” for the purposes of “obtaining or retaining business.” “Foreign official” is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof”; however, “instrumentality” is not defined within the FCPA, and is the primary concern of this Note.
In United States v. Esquenazi, the Court of Appeal for the Eleventh Circuit, in a case of first impression, determined that an instrumentality under the FCPA is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own,” thus, extending “foreign official” to include any employee of a state owned enterprise. This Note explains the Eleventh Circuit was incorrect in its ruling, for a variety of reasons.
This Note argues the court was incorrect in its statutory interpretation—by applying incorrect canons of construction, invalid definitions, and inappropriate subsequent, silent legislative history. This Note further argues the court’s ruling contravenes the intent and original purpose of the FCPA, as Congress was clear in its intention for FCPA to be a limited statute. Finally, this Note argues the court’s ruling is unworkable in the real world—because it requires U.S. corporations to conduct extensive research and investigations before ever setting foot in a foreign country.
Recommended Citation
Nicholas C. Martin,
Will the Real Foreign Official Please Stand Up: Determining Who is a Foreign Official After United States v. Esquenazi, 752 F.3D 912 (11th Cir. 2014),
40
S. Ill. U. L.J.
91
(2015).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol40/iss1/9