International Conventions and Interpreting the FCPA

Among the interesting aspects of the Eleventh Circuit’s recent decision in United Statesv. Esquanazi, 2014 U.S. App. LEXIS 9096, Fed. Sec. L. Rep. (CCH) P97,966, 24 Fla. L. Weekly Fed. C 1349 (11th Cir. Fla. May 16, 2014), is the degree to which it relies upon the Commentaries to the OECD Anti-Bribery Convention. The Eleventh Circuit looked to the Commentaries in seeking guidance as to what constitutes a public official under the FCPA.  A critical factor in this process was the ratification of the OECD Convention without any reservations, understandings, or declarations.  The Fifth Circuit’s decision inUnited States v. Kay, 359 F.3d 738, 755 n.68 (5th Cir. 2004), also took into account similar considerations.

Even though the United States is not a party to the Vienna Convention, the Commentaries and similar preparatory materials may bear on interpreting U.S. law:

In accordance with article 32 of the Vienna Convention of the Law of Treaties, to which the United States is not a party but which reflects several commonly accepted principles of treaty interpretation, preparatory work such as that memorialized in the Interpretative Notes may serve as a supplementary means of interpretation, if an interpretation of the treaty done in good faith and in accordance with the ordinary meaning given to the terms of the treaty results in ambiguity or is manifestly absurd. Thus, the Interpretive Notes, while not binding as a matter of treaty law, could be important as a guide to the meaning of terms in the Convention and Protocols.

S. Exec. Rep. No. 18, No. 18, 109th Cong., 2d Sess., at 60 (2006).

Given that judicial review of the FCPA has, to date, been limited, reference to the Commentaries of the OECD Anti-Bribery Convention and, as well, similar provisions, such as the Interpretative Notes for the Official Records (Travaux Preparatoires) of the Negotiations of the Untied Nations Convention against Corruption can be an invaluable resource in better understanding many of the nuances associated with the FCPA. Indeed, they may also be of assistance in understanding the domestic legislation adopted by other countries in the course of their ratification of the OECD Anti-Bribery Convention, the United Nations Convention against Corruption, and other anti-bribery conventions.

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