DECONSTRUCTING THE IDENTITY AND ROLES OF ‘AGENTS’ UNDER THE UNITED STATES FOREIGN CORRUPT PRACTICES ACT: WHAT NIGERIAN PUBLIC OFFICIALS, MIDDLEMEN AND CONSULTANTS MUST KNOW

Abstract

Corruption is a global problem. Its impact is made more manifest with the advancement in the use of technology. The implication is that the scourge can be easily exported from one country to another if decisive actions are not taken to curb it. The United States is unarguably the commercial capital of the world. US businesses have tremendous influence throughout the globe. To ensure that American businesses are not vehicles for the spread of corruption involving foreign public officials but rather to safeguard their reputations and maintain public confidence, probity and integrity in the global business ecosystem, Congress enacted the Foreign Corrupt Practices Act (“FCPA”). The scope of the Act is wide with global reach – to the extent that foreign persons or companies could be held liable for violating the Act. “Agents” of US businesses in foreign countries like Nigeria or Nigerian businesses registered with the US Securities and Exchange Commissions (“SEC”) involved in corrupt practices outside the US could be held liable under the Act. Equally, US Principals may be held vicariously liable for the conduct of their Nigerian agents. This paper explores, briefly, the application of the FCPA and what it takes for a foreign person or company to be adjudged an agent. As a result, US businesses are advised on the steps to take before appointing a Nigerian agent and what a prospective agent in Nigeria must know to avoid exposing itself and its US principal in dealing with Nigerian public officials to escape the hammers of the US Department of Justice (“DOJ”) and/or SEC and save Nigerian officials from bad press and possible prosecution in Nigeria.