Questions, Questions and More Questions: Foreign Courts and the FCPA

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Inspired by our colleague, the FCPA Professor, this post will pose several questions regarding the Foreign Corrupt Practices Act (FCPA) in connection with one of the most Byzantine litigation matters of current renown, that being Chevron’s legal tangle in Ecuador. Most companies which do business outside the United States understand that the FCPA applies to them, directly or through representatives. We also believe that most everyone understands that the FCPA also applies to US citizens who might do business overseas. We wondered if this might also apply to US lawyers who bring litigation outside the US. With this in mind, we ask the following:

1. Does the FCPA apply to judicial proceedings overseas?

2. Is a judge a “governmental official” as defined by the FCPA?

3. Is a private individual, who is appointed by court, a “foreign official” under the Act?

4. Is such a private official an “instrumentality thereof” of a foreign government?

5. Does “ghosting” or writing a report for a court-appointed neutral expert violate any of the following: “(i) influencing any act or decision of such foreign official in his official capacity; (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official; or (iii) securing any improper advantage”?

6. If a private citizen attempts to bribe a foreign governmental official, can it be classified as an undercover sting operation under the FCPA?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Fox, Compliance Evangelist | Attorney Advertising

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