The definition of the ‘foreign public official,’ according to the USA’s anti-corruption law – the Foreign Corrupt Practices Act (FCPA) – has always been a sui generis aspect of the regulation, considering its breadth in comparison with similar standards in other countries.
The FCPA defines a foreign official as any official or employee of a foreign government or any department, agency or public company, or of a public international organization, or anyone acting in an official capacity for or on behalf of any government or department, agency, or instrumentality, or for or on behalf of any public international organization.
Irrespective of this definition, the FCPA establishes punishment for bribes made to any of the following recipients:
It is important to note that the FCPA does not distinguish according to the rank or relevance of the official’s position. Therefore, a violation occurs even though he/she does not hold a significant role or is not even a decision-maker able to benefit the company responsible for the bribe.
On the other hand, the prohibition targets payments intended to bribe foreign officials and not payments to foreign governments. Thus, a situation may arise that a company may have a social responsibility program in which it contemplates donations to some government. Although it is not a violation of the FCPA, the company must guarantee maximum transparency and control in the use of resources to prevent them from being used to bribe foreign public officials.
One aspect that deserves attention is the notion of instrumentality. The concept is broad and may include state-owned or state-controlled entities. Therefore, according to the FCPA Resource Guide, 2nd Edition, if the issue relates to payment, for bribery, to an employee of a state property or state-controlled entity, the question will require specific analysis of the entity’s property, control, status, and function.
The FCPA guide describes a lawsuit on that issue, where the Eleventh Circuit addressed the definition of instrumentality in the United States vs. Esquenazi, a case involving a state-owned telecommunications company in Haiti. The Eleventh Circuit concluded that instrumentality “under the FCPA is” an entity controlled by the government of a foreign country that performs a control function. In that case, the Miami telecommunications executives were indicted for paying bribes to employees of the Haitian telecommunications company.
Although the court noted that this proposed test resulted from a fact-based investigation, it provided the following non-exhaustive list of factors to determine whether the government “controls” an entity:
On the other hand, the Eleventh Circuit listed these non-exhaustive factors below, to determine whether the entity performs a function that the government treats as its own:
In the case of international public organizations, the concept includes entities such as the United Nations, the World Bank, the International Monetary Fund, the World Trade Organization, the OECD, the OAS, among others.
If the reader wishes to delve deeper into this topic, I suggest you read the FCPA Resource Guide, 2nd Edition.