On e the third party became part of the transaction at What Affirmative Defenses Are the express request or insistence of the foreign Available? official; The FCPA’ anti-bribery provisions contain two affir- e the third party is merely a shell company incorpo- mative defenses: (1) that the payment was lawful under the rated in an offshore jurisdiction; and written laws of the foreign country (the “local law” defense), e the third party requests payment to offshore and (2) that the money was spent as part of demonstrating a bank accounts. product or performing a contractual obligation (the “reason- Businesses may reduce the FCPA risks associated able and bona fide business expenditure” defense). Because with third-party agents by implementing an effective com- these are affirmative defenses, the defendant bears the burden pliance program, which includes due diligence of any pro- of proving them. spective foreign agents. The Local Law Defense ———————— For the local law defense to apply, a defendant must United States v. Kozeny, et al. establish that “the payment, gift, offer, or promise of any- thing of value that was made, was lawful under the writ- In Bemba a0 1, the WS Gourt af Appeals ten laws and regulations of the foreign official’s, political for the Second Circuit upheld a conscious avoidance instruction given during the 2009 trial of a businessman party’, party official's, or candidate's country."'* The defen- who was convicted of conspiring to violate the FCPA’s dant must establish that the payment was lawful under the anti-bribery provisions by agreeing to make payments to foreign country’s written laws and regulations at the time Azeri effisials in scheme ta enneuinge the privatization of the offense. In creating the local law defense in 1988, one “ — Ce cane BS ipa tne Congress sought “to make clear that the absence of written a factual predicate, citing evidence and testimony at laws in a foreign official’s country would not by itself be suf- trial demon