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Unpublished Paper
Blatant Bribery or Locally Lawful?: Is the Foreign Corrupt Practices Act’s “Local Laws” Defense Extinct?
ExpressO (2012)
  • Erik J King, George Washington University
Abstract
Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other FCPA statutory elements have rendered this defense useless. The local laws affirmative defense should be eliminated from the FCPA. For the remaining types of foreign laws that could still implicate the defense’s concept, as partially highlighted by the United Kingdom’s Bribery Act approach, this Note also suggests ways the U.S. Department of Justice should explain the effect of local law compliance when evaluating other FCPA elements.
Keywords
  • fcpa,
  • ukba,
  • fcpa guidance,
  • uk bribery act,
  • local laws,
  • fcpa defense,
  • corrupt,
  • anti corruption,
  • kozeny,
  • bourke,
  • foreign official,
  • bribery,
  • doj,
  • offsets,
  • foreign laws,
  • comparative law
Disciplines
Publication Date
September 11, 2012
Citation Information
Erik J King. "Blatant Bribery or Locally Lawful?: Is the Foreign Corrupt Practices Act’s “Local Laws” Defense Extinct?" ExpressO (2012)
Available at: http://works.bepress.com/erik_king/4/