Navigating the FCPA: Definition of a "Foreign Official" under the FCPA

Many of us in the business world have heard about the Foreign Corruption Practices Act (FCPA), and know that in its simplest form, it’s an anti-bribery act. Common sense tells us that to comply with the Act, our representatives shouldn’t bribe a foreign official. Easy enough. Or is it? During my career, I’ve seen companies inadvertently become crosswise with the Act, because their employees or representatives didn’t realize their actions could be construed as a bribe. Or worse yet, in their haste to finalize a deal or move product, they knowingly crossed the line because they felt they didn’t have a choice. Either scenario, could land your company in hot water with the DOJ.

The first step in staying compliant with the FCPA is knowing the FCPA’s definition of the term “foreign official” and the term “bribe.”

Definition of a "Foreign Official" 

The FCPA defines a "foreign official" broadly to include anyone acting on behalf of a foreign government in an official capacity, as well as individuals associated with public international organizations.

Here is a breakdown:

• Government Employees: This encompasses any officer or employee of a foreign government, regardless of their level or branch of government.
• Representatives of Government Entities: The definition extends to individuals working for any department, agency, or instrumentality of a foreign government. This includes state-owned enterprises, state-controlled companies, and other entities that are part of or controlled by a foreign government.
• Public International Organizations: This category includes organizations like the United Nations (UN) or the World Bank. The FCPA recognizes that corrupting officials within these organizations can have significant global implications.
• Political Figures: The definition covers individuals involved in the political sphere, including members of foreign political parties and candidates running for political office.

As you can see, the FCPA’s definition of a “foreign official” is quite expansive. It’s crucial for businesses operating in international markets to understand this definition and to train their employees accordingly. By being aware of who constitutes a foreign official, companies can take proactive steps to prevent inadvertent violations of the FCPA and mitigate the associated risks. In my next post, I’ll delve into the definition of a “bribe” and explore the various forms that it can take.

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