Pro Bono Innovators 2024 Honoree K&L Gates

In our 2024 edition of Pro Bono Innovators, Bloomberg Law honors K&L Gates for its work with the National Center for Missing and Exploited Children, a nonprofit group, to develop the Global Platform for Child Exploitation Policy. The firm also is honored for incorporating human-rights related elements in The Gambia’s model bilateral investment treaty, in collaboration with two other organizations.

Your firm’s key matters include working with more than 60 lawyers from your international offices to work with NCMEC, to create what you call the first online Global Platform for Child Exploitation Policy. It serves as an information clearinghouse of data analytics concerning online child sexual exploitation that will provide policy, legislative analysis, and advocacy to combat these crimes globally. K&L Gates also worked to incorporate human-rights elements in The Gambia’s model bilateral investment treaty. How did your firm strategize on how to approach these matters?

Child Exploitation Platform matter: We had an early all-hands project launch meeting in person and discussed, among other things, the goal of having a tool that was readily accessible and easy for local counsel to use in entering their responses to research questions and that our team could use in reviewing those responses.

We considered different platforms that our IT team presented and, after testing by our attorneys, the client’s attorneys, and the client’s business and IT professionals, we decided to use a platform system that automatically saves work as it is entered. In addition, our IT department set up a regular back-up of the entire system, and we shared exported research responses through a secure file-share system with authorized personnel.

In terms of our approach, we worked with different organizations and individuals within those organizations. In addition to the indispensable assistance of local attorneys at firms around the world, we worked closely with the client and involved both our legal and information technology teams.

Since we were developing research materials for an online global platform, we included IT specialists from NCMEC and our firm from the beginning, to work with firm attorneys who were supervising the development of content by local counsel. Both the client’s and our firm’s IT teams remained involved throughout the project, and Molly Moran served as the K&L Gates liaison between IT teams. The technology plan we developed at the outset is what we used throughout the project, and NCMEC found the materials easy to incorporate into the final Global Policy Platform.

The Gambia Treaty matter: K&L Gates’ strategy in developing the Sustainable Investment Facilitation & Cooperation Agreement (SIFCA) model bilateral investment treaty for The Gambia was simple: listening to the client. Like many other least-developed countries, The Gambia would negotiate bilateral investment treaties in order to promote inbound foreign investment.

Having recently emerged from over 20 years of rule by a leader who was subsequently exiled and accused of murder, rape, torture and other alleged crimes, however, the client’s focus was not only on boosting foreign investment but also on good governance more broadly. The Gambia needed to reach beyond promoting foreign investment to protect the Gambian environment and the human rights of all Gambians, some of whom are among the world’s most disadvantaged people.

We responded with innovation, combining lessons learned from a range of treaty instruments and the Reform Accelerator of the United Nations Conference on Trade and Development to develop a draft treaty that incorporated the best practices in modern treaty practice. We also built from scratch new consent mechanisms that require foreign investors to meet the expectations of the UN Guiding Principles on Business and Human Rights as a condition for access to investor-state arbitration, and which aim to provide recourse for individual Gambians should the foreign investment cause violations of their internationally recognized human rights. This, like other innovative aspects of the SIFCA model, has never been done before in modern treaty practice.

What were the most innovative aspects of two of your client matters in your view? And who took the lead on driving innovation with the work?

Child Exploitation Platform matter: The NCMEC project involving the Global Platform for Child Exploitation Policy was innovative in many ways. One of the most innovative aspects was adapting our research to the challenges arising from emergent technologies such as artificial intelligence.

To combat online child sexual exploitation, the laws and their enforcement must keep up with the technology tools used by the perpetrators. By having the subject countries’ laws available for worldwide inspection, countries can learn from their peers and work together to fight this global, borderless scourge.

This effort leveraged NCMEC’s decades of experience with child exploitation, our firm’s global footprint of dedicated pro bono lawyers, and the legal acumen of local counsel. The result is a resource that can be used around the world in fighting online sexual exploitation of children.

Throughout this project, we assisted NCMEC not only with the research, but with how to leverage the research within the platform to make it usable by governments, NGOs, legislators, law enforcement, and others working to fight this horrific form of child abuse.

From our firm, Linda Odom drove innovation and drew on her perspective from 25 years of legal experience in financial services technology and years of pro bono experience in the human trafficking space. She worked closely with NCMEC’s chief legal officer and its internal experts from the outset of the project, and she brought in technological resources from our firm to support the work.

Thinking ahead to minimize data transfer to the platform, she had a firm IT team work closely with the NCMEC IT team to devise an online questionnaire that was easy for local counsel to access and use and that resulted in work product immediately usable in the platform. This novel platform will be a widely available resource for comparative law research, policy development, and law enforcement for the benefit of vulnerable children.

The Gambia Treaty matter: For The Gambia’s model bilateral investment treaty, the most innovative aspects were incorporating the following human rights-related elements for the first time in such a treaty: 1. Investor obligations based on the UN Guiding Principles on Business and Human Rights, 2. The first-ever state agreement to investment arbitration under the Hague Rules on Business and Human Rights Arbitration; and 3. The first-ever tribunal jurisdiction over third-party claims asserted against the investor by natural persons who have suffered the violation of internationally recognized human rights arising from a covered investment.

Our senior associate Robert Houston took the lead on driving innovation, in collaboration with Chester Brown of the University of Sydney and Alessandra Mistura, then of the International Development Law Organization. Robert’s commitment went beyond drafting and advising from his desk in Singapore, as he traveled to Banjul to explain the model treaty and help with the validation process, which was ultimately successful.

Tell us more about the impact of these two matters on the local, national, and/or global level.

Child Exploitation Platform matter: The NCMEC platform will serve as an information-sharing and advocacy clearinghouse of data analytics concerning online child sexual exploitation and will provide policy and legislative analysis and advocacy to strengthen global efforts to combat these crimes.

The platform will have a profound impact on efforts to fight the online sexual exploitation of children. Lawmakers, policy makers, and others will have global access to relevant domestic law at their fingertips, along with substantial other expert resources to assist those dedicated to eradicating this behavior. Having these tools at their fingertips should help expedite the enactment, updating, and enforcement of these laws.

The Gambia Treaty matter: The impact of the model bilateral investment treaty could be quite significant, not only for The Gambia but for other developing countries, as well. The potential long-term implications could include the creation of a new generation of international investment agreements that unites the previously separate spheres of human rights, environmental protection, and investment protection for the first time in negotiated legal instruments in public international law. Our team is making this model available and speaking on these issues, which could lead to further adoption and greater protection for developing countries and their people.

Why do you think your team ultimately achieved successful results in these two matters?

Child Exploitation Platform matter: For the NCMEC platform project, our team was in frequent communication with our local counsel, other internal team members, and NCMEC throughout the entire process. Given the needs of the platform, we strived to get the same information on laws in each country even though the laws and legal systems were very different. Our local counsel, most of whom had existing relationships with firm attorneys, were dedicated, hard-working, and flexible in developing their responses.

Adina Darbyshire and Robert Houston coordinated the project in the Eastern Hemisphere, leveraging the efforts of lawyers across eight of our global offices (Sydney, Melbourne, Taiwan, Hong Kong, Singapore, Tokyo, Dubai, and Doha) to collaborate with local counsel in over 19 firms across 26 jurisdictions.

In the West, Linda Odom, Molly Moran, and others led a team of 22 volunteers in Boston, Chicago, London, Newark, Paris, San Francisco, Sao Paolo, and Washington, D.C., who worked with local counsel in 22 countries.

The responses developed by our local counsel have provided critical insights into how domestic legal frameworks can be strengthened. Many of them have already committed to updating their work from time to time. Their dedication inspired all of us.

This type of global cooperation is key to combating these horrific crimes. We will work with local counsel to update, expand, and improve the platform in the future.

We are also working with NCMEC to research the role of international law in supplementing domestic legal frameworks for the protection of children. Ultimately, the platform will provide a complete picture on child protection laws at the country and international levels.

The Gambia Treaty matter: Our team achieved successful results in our work for The Gambia because we were willing to think outside the box and incorporate new human rights components into a model bilateral investment treaty. We had also built a relationship with this client through earlier pro bono work.

Prior to undertaking this novel project, we assisted with capacity building in international investment law and arbitration for the Ministry of Trade, Industry, Regional Integration & Employment of The Gambia. As part of that work, we co-presented sessions with an international economic and trade lawyer, highlighting such key topics in public international law as customary international law, treaty interpretation, state attribution, state responsibility, treaty negotiation, investor-state dispute settlement, and the contemporary landscape of international investment agreements.

After completing the model treaty, the client demonstrated its confidence in us by inviting our lawyers to Banjul to participate in a validation process and explain the model, interacting with other ministries and the executive branch. Ultimately, the model treaty was adopted and can serve as an example for other developing countries.

Responses provided by K&L Gates Partner Linda Odom, Payments, Banking Regulation and Consumer Financial Services Practice Group for the NCMEC matter.

Responses provided by K&L Gates Senior Associate Robert Houston, International Arbitration Practice Group for The Gambia matter.