Historic FCPA Ruling Anticipated on Definition of “Instrumentality” of Foreign Government

Although the appeals cover several issues, the most important issue for FCPA practitioners is whether the trial court properly instructed the jury regarding the term “instrumentality.” The FCPA prohibits bribing “foreign officials” in order to obtain or retain business. “Foreign official” is defined as an “officer or employee of a foreign government or any department, agency, or instrumentality thereof.” The US Department of Justice has long contended that the term “instrumentality” covers not only entities performing core governmental functions, but also commercial businesses with some level of state ownership, and that a “foreign official” is any employee of such a business. Companies and individuals facing FCPA charges have argued that such an expansive definition is legally flawed and contrary to legislative intent.