Washington Law Review


Controlling the Prosecution of Bribery: Applying Corporate Law Principles to Define a “Foreign Official” in the Foreign Corrupt Practices Act

March 01, 2013 | 88 Wash. L. Rev. 245

Abstract:  This Comment focuses on the debate surrounding the definition of an “instrumentality” within the Foreign Corrupt Practice Act’s (FCPA) “foreign official” provision. The FCPA prohibits bribery of “foreign officials” but provides little guidance as to the types of entities included within the meaning of an “instrumentality.” The Department of Justice construes this term broadly and therefore can aggressively prosecute alleged corruption. This Comment argues that courts should provide guidance on the definition of a “foreign official” within the meaning of the FCPA by applying principles of control drawn from corporate law. Such guidance would accomplish three important tasks. First, it would help corporations comply with the FCPA. Second, it would align with the approach used by foreign jurisdictions designated in treaty obligations. Finally, it could help achieve Congress’s original objectives in enacting the legislation: namely, to prevent corruption of foreign public officials as well as the negative consequences for foreign policy.

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