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 \u201cinstrumentality of a foreign government.\u201d 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\u2019s go-to rule for determining which entities qualify as an \u201cinstrumentality of a foreign government.\u201d However, ambiguity remains around what attributes will make an entity an \u201cinstrumentality.\u201d<\/p>\n
This Note attempts to improve upon the Esquenazi court\u2019s \u201cinstrumentality\u201d test. The Note discusses the present test for which entities qualify as an \u201cinstrumentality.\u201d It then compares the FCPA approach to comparable anti-bribery frameworks. Based on the Australian Criminal Code\u2019s approach to defining \u201cpublic entities\u201d for purposes of foreign bribery, the Note proposes a categorical test for determining which entities qualify as an \u201cinstrumentality of a foreign government.\u201d<\/p>\n