Anti-Corruption Digest is an update distributed on a monthly basis by Dorsey & Whitney providing a summary of the latest developments in anti-corruption enforcement activity around the world.
In This Issue:
- The USA
- The UK
- The Rest of the World
Excerpt from The USA:
Eleventh Circuit Clarifies Meaning of “Instrumentality” -
On May 16, 2014, the Eleventh Circuit Court of Appeals clarified what test to apply in determining whether a person is a “foreign official” within the meaning of the FCPA. The Court’s decision is the first by an Appellate Court to consider the meaning of “instrumentality” under the FCPA, i.e., whether an apparently private commercial entity is an instrumentality of a foreign government. The Court offered a two part test to determine whether the entity is an instrumentality of a foreign government: first, whether the entity is “controlled by the government of a foreign country” and, second, whether the entity “performs a function the controlling government treats as its own.” United States v. Esquenazi, No. 11-15331, at 20 (11th Cir. May 16, 2014). In answering these two questions, the Court provided a list of non-exhaustive factors.
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