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Expert Analysis

But Which State-Owned Entities Are Not Instrumentalities?

Law360, New York (May 23, 2014, 12:21 PM EDT) -- With the decision in United States v. Esquenazi, an appellate court has, for the first time, defined "instrumentality" as that term is used in the Foreign Corrupt Practices Act.[1] Though FCPA practitioners hoped Esquenazi would bring greater clarity to determining whether any given state-owned entity is an instrumentality, that determination remains dependent on nonexhaustive lists of nondispositive factors. The Esquenazi court's attempt to provide ex ante direction on instrumentality leaves important questions unresolved, and does not provide guidance as to which state-owned entities are not instrumentalities of a foreign government....

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