Under the FCPA, Who Is a Foreign Official Anyway?
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| Authors: | Cohen, Joel M., Holland, Michael P., Wolf, Adam P. |
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| Source: | Business Lawyer. Aug2008, Vol. 63 Issue 4, p1243-1274. 32p. |
| Subject Terms: | *Corporate corruption, *International business enterprises, *Foreign investments, Prevention of bribery |
| Company/Entity: | United States. Securities & Exchange Commission |
| Abstract: | Despite the marked increase in high-profile Foreign Corrupt Practices Act ("FCPA") enforcement activity, it remains unsettled whether the FCPA's definition of "foreign official" includes employees of foreign companies that are owned or controlled by those companies' governments. This is an issue that transnational companies face daily in determining how to proceed in foreign jurisdictions. The definition of "foreign official" does not explicitly include such employees, nor does it define what constitutes state ownership or control. The U.S. Department of Justice ("DOJ") and the U.S. Securities and Exchange Commission ("SEC") have interpreted the definition to include employees of foreign state-owned or controlled entities, but is this interpretation correct? This Article examines the origin of the FCPA's definition of "foreign official," considers the definition in light of other U.S. statutes involving foreign officials and the OECD Anti-Bribery Convention, and analyzes the impact the DOJ and SEC's interpretation has had on foreign business transactions. The Article recommends that the DOJ and SEC provide more guidance in this critical area and further harmonize the U.S. anti-corruption standards with those already used by many of the signatory countries to the OECD Anti-Bribery Convention. [ABSTRACT FROM AUTHOR] |
| Database: | Entrepreneurial Studies Source |
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| Abstract: | Despite the marked increase in high-profile Foreign Corrupt Practices Act ("FCPA") enforcement activity, it remains unsettled whether the FCPA's definition of "foreign official" includes employees of foreign companies that are owned or controlled by those companies' governments. This is an issue that transnational companies face daily in determining how to proceed in foreign jurisdictions. The definition of "foreign official" does not explicitly include such employees, nor does it define what constitutes state ownership or control. The U.S. Department of Justice ("DOJ") and the U.S. Securities and Exchange Commission ("SEC") have interpreted the definition to include employees of foreign state-owned or controlled entities, but is this interpretation correct? This Article examines the origin of the FCPA's definition of "foreign official," considers the definition in light of other U.S. statutes involving foreign officials and the OECD Anti-Bribery Convention, and analyzes the impact the DOJ and SEC's interpretation has had on foreign business transactions. The Article recommends that the DOJ and SEC provide more guidance in this critical area and further harmonize the U.S. anti-corruption standards with those already used by many of the signatory countries to the OECD Anti-Bribery Convention. [ABSTRACT FROM AUTHOR] |
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| ISSN: | 00076899 |
