State-Owned Enterprises: What’s All the Hullabaloo?

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1 Response

  1. Jon May says:

    I like the simplicity and ease of application of the control test but I can envision situations where a foreign nation might obtain a small interest in a company in order to obtained banned technology. Would that company not be an instrumentality as well?
    Also, although majority control does give the foreign government the ability to skew the market, generally bribery has nothing to do with with the foreign nation, but everything to do with the foreign official who is in a position to enrich himself. So its seems to me that the question of control is often unrelated to the bribery itself.
    Which leads me to the conclusion that the real virtue of your test is that it furthers the interest of the law by making it easier for everyone to know where the lines are drawn. If some cases escape prosecution, so what. The government can’t prosecute everyone. Better to achieve widespread obedience to an easily followed law, than to attempt to achieve the same by capricious prosecution of a confusing statute.