One the criticisms of the Foreign Corrupt Practices Act (FCPA) is that it provides little guidance as to what constitutes an instrumentality under the Act and attendant question of who is a foreign governmental official. One of the five points raised by the US Chamber of Commerce in its lobbying efforts to amend the FCPA is on this issue. In the Chamber’s White Paper, authored by Andrew Wiessmann and Alixandra Smith, entitled “Restoring Balance-Proposed Amendments to the Foreign Corrupt Practices Act”, they wrote that this lack of statutory guidance has led US companies to have “no way of knowing whether the FCPA applies” to a transaction because there is allegedly no way to know if a foreign governmental official is involved.
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