A/HRC/40/48 D. Articles 10, 11 and 12 64. With respect to article 10, the Chair-Rapporteur noted that the working group’s previous discussions had highlighted the need for the draft to include reference to legal liability, in particular civil, criminal and administrative liability. The draft sought to balance prescription and flexibility, thus allowing States the freedom to determine how best to implement the article. The provisions on civil liability focused on broadly accepted principles, while those on criminal liability allowed States to apply effective non-criminal sanctions in order to garner broader acceptance by States. Articles 11 and 12 on mutual legal assistance and international cooperation were devoted to filling jurisdictional gaps; the ChairRapporteur expressed hope that they would help in realizing the implementation of the future instrument. 65. Several delegations and NGOs welcomed the inclusion of article 10, on legal liability, with many NGOs expressing appreciation that it covered civil, criminal and administrative liability. Although some were of the view that appropriate distinctions between natural and legal persons had been made in the draft, a few delegations suggested that the distinction be made clearer in several provisions of the article. Many NGOs requested that the article refer directly to the obligations of transnational corporations. There were also calls for the article to more clearly address aspects of corporate law, in particular separate legal personality and fiduciary duties. Most NGOs requested clearer provisions on piercing the corporate veil, whereas one business organization found that the current draft already disregarded separate legal personality and unfairly subjected companies that could have very tenuous connections to abuses to legal risks. Several delegations and an NGO asked for provisions focusing on situations of conflict. One delegation suggested adding references to international humanitarian law throughout the article, while another suggested including language on liability for aiding and abetting, particularly in situations of occupation. 66. Two delegations sought clarification with respect to article 10 (3), with one asking whether States would be expected to bear financial responsibility for the acts of private parties. 67. States were divided on article 10 (4) on the reversal of the burden of proof. Some delegations and a business organization considered the provision to be too broad, noting that it could lead to due process violations and other violations of defendants’ rights. Other delegations found that the provision would be problematic if it did not clearly exclude criminal cases, as reversing the burden of proof in such cases would run counter to the presumption of innocence. Several delegations and NGOs welcomed the inclusion of the provision. State delegations expressed appreciation for the inclusion of the condition that the reversal of the burden of proof was to be subject to domestic law, but many NGOs insisted that the condition be removed and that the reversal of the burden of proof be mandated by the instrument. 68. There were many calls for clarity and increased precision in article 10 (6). State delegations specifically asked what was meant by “control” in article 10 (6) (a) (one delegation suggested changing the wording to “sufficient control”) and the words “sufficiently close relation” and “strong and direct connection” in article 10 (6) (b). That ambiguity was noted by the representatives of an NGO and a business organization, both of whom argued that, as written, the provisions could subject companies to unreasonable legal risk through their business relationships, regardless of their control over events or relationship to the harm. One delegation nonetheless suggested expanding the article to cover harm indirectly related to companies, and several NGOs suggested including more references to supply chains and piercing the corporate veil. 69. Some delegations raised serious concerns about article 10 (8), as they interpreted it to require the imposition of criminal liability on legal entities, which was not a possibility in their legal systems. One delegation said that the references to dissuasive non-criminal sanctions as an alternative in articles 10 (10) and 10 (12) did not resolve the issue and that the State it represented would be unable to accede to any instrument that made corporate criminal liability an obligation. Some delegations welcomed the provision and suggested making it even stronger – for instance, by lowering the threshold of “intentional” acts to 12