The Foreign Corrupt Practices Act (FCPA) is the cornerstone of the global fight against corruption, and it has served as the inspiration for many of the anti-bribery frameworks in other countries. In a global economy where state-owned enterprises play an increasingly important role, the FCPA notably lacks a definition for what it means to be an “instrumentality of a foreign government.” The Eleventh Circuit addressed this question in United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014), and the fact-based inquiry that the court produced has become the federal government’s go-to rule for determining which entities qualify as an “instrumentality of a foreign government.” However, ambiguity remains around what attributes will make an entity an “instrumentality.”

This Note attempts to improve upon the Esquenazi court’s “instrumentality” test. The Note discusses the present test for which entities qualify as an “instrumentality.” It then compares the FCPA approach to comparable anti-bribery frameworks. Based on the Australian Criminal Code’s approach to defining “public entities” for purposes of foreign bribery, the Note proposes a categorical test for determining which entities qualify as an “instrumentality of a foreign government.”

Crafting A Clearer Definition of “Instrumentality” After United States v. Esquenazi