Enacted in 1977, the Foreign Corrupt Practices Act is the tool the Justice Department and Securities and Exchange Commission (“SEC”) uses to fight corruption around the world. Generally, the law criminalizes paying bribes to “foreign officials.” The FCPA defines that term as “any foreign officer or employee of a foreign government or any department, agency, or instrumentality thereof.”
When a foreign government is organized in a manner similar to the U.S. government, determining what constitutes an instrumentality of the foreign government is typically straightforward. However, foreign governments can be organized in myriad ways. Many foreign governments operate through state-owned and state-controlled entities, particularly in areas such as telecommunications. By including officers and employees of “agencies or instrumentalities” within the definition of “foreign official,” the FCPA attempts to account for this variation.
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