The U.S. government continued to enforce the Foreign Corrupt Practices Act with vigor in 2011. The year also brought the first judicial guidance on the interpretation of who qualifies as a foreign official under the FCPA, and several notable trials of those accused of violating the statute. This increased anti-corruption enforcement activity, along with the recent developments in the law, mandate that private and public companies alike remain vigilant in their FCPA compliance efforts.
Interpretation of ‘Foreign Official’
The anti-bribery provisions of the FCPA prohibit the making of payments to a “foreign official” for the purpose of obtaining or retaining business. 15 U.S.C. §78dd-2(a)(1). “Foreign official” is defined as “any officer or employee of a foreign government or any department, agency or instrumentality thereof.” 15 U.S.C. §78dd-2(h)(2)(A). However, what constitutes a “foreign official” in practice has been the subject of considerable debate.
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