I'm Not Going to Disneyland: Illusory Affirmative Defenses Under the Foreign Corrupt Practices Act

Abstract:     
This article analyzes the two affirmative defenses provided by the Foreign Corrupt Practices Act (FCPA) and argues that the defenses are virtually useless in practice. Recent restrictive judicial interpretation, developing international business customs and the statutory language itself have rendered the defenses – the local law defense and the promotional expenses defense – meaningless for FCPA defendants at trial. This article describes the problems with the defenses and suggests that Congress modify existing law to allow for greater fairness in FCPA prosecutions.

Number of Pages in PDF File: 31

Keywords: Foreign Corrupt Practices Act, FCPA, corruption, bribery, affirmative defenses, local law defense, promotional expenses defense, Department of Justice

JEL Classification: K00, K22, K33, K42

Accepted Paper Series