Who is a “foreign official” for purposes of FCPA compliance?
The FCPA is clear that any officers or employees of state instrumentalities are “foreign officials”. State “instrumentalities” include government agencies, customs departments, as well as state-owned or controlled enterprises. The government interprets “foreign official” very broadly, in that it can include “any” employee or officer of or acting on behalf of a foreign government or agency, department, or instrumentality thereof.
Examples:
- Customs official or employee
- Employee of state-owned telecommunication or mining company.
- Employees or officers of national airline or national mining company
- Member of Communist Party working for customer or other company
Practice Tip:
- In China, for FCPA compliance purposes, the rule of thumb is that all companies are state-owned or controlled.
- In LATAM, Africa and Asian countries, for purposes of FCPA compliance, many mining, telecommunications, oil and energy companies are state-owned or controlled.