This paper examines whether the current exception to the Foreign Corrupt Practices Act (FCPA), or the affirmative defenses provided by the FCPA, allow American companies to be this positive influence. Part I examines the background of the FCPA, the current exception and affirmative defenses, and the recent increase in enforcement. Part II examines the issue of whether the current exceptions and affirmative defenses permit US companies to invest in countries currently exiting major internal strife. 4 Unfortunately, neither the exception nor the affirmative defenses provide companies the leeway necessary to enter these markets without serious risk of running afoul of the FCPA enforcers. Part IV argues that a new affirmative defense should be enacted, creating a system where companies can approach the DOJ and SEC with an outline of a strong compliance program and receive permission to enter these countries without fear of being targeted for investigation.
Chris Rohde, New Affirmative Defense to the FCPA for Countries Exiting Major Internal Strife, 13 Rich. J. Global L. & Bus. 545 (2014).