1. Aim of the chapter – After substantiating why this book chooses to analyse the possibility for mandatory home state regulation from the perspective of nondirectly affected states’ and international organisations’ aggravated responsibility regime (see supra Chapter 4, s 3.5.2.), the next question to be tackled is how this aggravated responsibility regime is shaped de lege lata and how it may serve as a legal basis for mandatory home state regulation of potentially harmful business activities in or pertaining to situations created or maintained in serious breach of jus cogens.

1. Aim of the chapter – After having substantiated that there are persuasive arguments to be advanced in support of a positive component attached to the traditionally negatively conceptualised duty of non-assistance requiring home states and competent international organisations to regulate business activities of their corporate nationals potentially rendering aid or assistance to the maintaining of situations created in serious breach of jus cogens (see supra Chapters 5 and 6), as well as having uncovered the core characteristics and particularities of the due diligence notion under international law – in particular in relation to the regulation of potentially harmful transnational conduct originating from private (corporate) actors (see supra Chapter 7) – this final chapter aims to bring all the separate building blocks uncovered in the previous chapters together to formulate a concrete answer to this book's central research question. More specifically, this chapter will test whether potentially harmful business activities in or pertaining to illegally occupied territories (as defined supra in Chapter 2) – which constitute situations created in serious breach of jus cogens (see supra Chapter 1) – can be challenged through the duty of non-assistance (see supra Chapter 5) incumbent upon these businesses’ state of nationality (home state) (see supra Chapters 3 and 4) by imposing on the latter a positive due diligence obligation to ensure that their private (corporate) nationals do not render aid or assistance to the maintaining of situations created in serious breach of jus cogens (see supra Chapters 6 and 7).

1. Aim of the chapter – In the previous chapter, we have demonstrated that – based on burgeoning subsequent practice, as well as the application of the traditional interpretation techniques to the duty of non-assistance – there are reasonable grounds to substantiate that the duty of non-assistance, besides its negative conceptualisation, also contains a positive component requiring states and competent international organisations to ensure that their (corporate) nationals do not render aid or assistance to the maintaining of situations established in serious breach of jus cogens. Building on this finding, this chapter now turns to the question of how such a positive component must be given concrete content.

The relationship between party autonomy and market regulation has been analysed extensively for consumer law and regulated industries. It seems to be a common understanding that European contract law in this area is predominantly characterised by a regulatory approach and consequently contains a regulated construction of party autonomy.1 In his chapter, Stefan Grundmann traces this relationship between party autonomy and regulation conceptually and he does so in a historically thoughtful and ambitious manner.2 He identifies three core regulatory phases, which are black-, red-, and green-box regulation, which, in other publications, he saw equally occurring in European company law.3 The black box refers to regulation to foster the functioning of the internal market, the red box to that for the internal empowerment of actors, and the green box to that for the pursuit of broader societal goals, such as sustainability.

European contract law has now followed a trajectory of 40 years at least, assuming its true beginnings are to be traced back to the directives of the mid-1980s, perhaps the most powerful being the Consumer Credit Directive (1985). One could see it as being even longer, for instance including Dassonville (1974) and Cassis de Dijon (1979) too, or shorter, but certainly and powerfully beginning in the 1990s at the latest, with the Unfair Contract Terms and the (Consumer) Sales Directives (1993/1999). Over this period, up until the present day, it has solidified as a reality impacting significantly on the legal systems of the Member States, profoundly transforming them. Some of contract law's provisions, starting with the 1993 Directive on Unfair Contract Terms, can undoubtedly be considered the frontier of the most significant change in private law since World War II.

Consumer transactions are ubiquitous and highly varied. They encompass everyday transactions, like buying groceries or supplies from Amazon.com, occasional commitments such as fitness club memberships and dating app subscriptions, and sporadic, substantial ones like purchasing a car.

As consumers move their lives online, they navigate numerous websites, often agreeing to Terms of Use, Privacy Policies, and Cookie Notices. Regardless of their frequency or magnitude, these transactions share one thing in common: an asymmetry between sellers, or content providers, and consumers.

This asymmetry is concerning, as sellers, equipped with superior information, sophistication, and experience, may engage in exploitation, especially online. Sellers can monitor consumers’ online activities and design their websites in ways that take advantage of this information. This can lead to consumers unknowingly paying hidden fees, signing up for unwanted services, or buying less valuable products. Unfortunately, some websites are designed to confuse or tempt consumers instead of helping them to understand these complexities. The details of most of these transactions are often buried in the fine print, making them hard for consumers to find and understand.

As Professor Zimmermann did in the last part of his chapter, I would like to recount the beginning of my academic journey in Rome in 2005 at the University of Roma Tre. Like many Italian students, I was preparing for the oral exam in private law with a fellow student. It is common for Italian students to memorise entire books of thousands of pages without fully grasping their contents. I vividly remember the day we were discussing distance contracts, consumer sales of goods, and travel packages. At one point, my colleague interrupted me and said, ‘This European law stuff is never asked about by the professor. Let's skip it’.

This was my first contact with what I thought was European law. After graduation, in 2010, I spent a year in Munster, Germany, where I had the opportunity to meet Professor Reiner Schulze, one of the co-founders, together with Reinhard Zimmermann and Stefan Grundmann, of the German-European Private Law Journal Zeitschrift fur Europaisches Privatrecht. During a meeting of the doctoral students, Professor Schulze told us that we were lucky because we had very important times ahead of us: we would probably be doctoral students during the period in which the European Civil Code or a similar instrument would be enacted at the European level.

1. Aim of the chapter – As alluded to in the introduction, the aim of the first part of this book – consisting of its first four chapters – is to set the stage and outline the broader research framework against which the book's central research issue is to be understood. This will be done, first, by determining the premises upon which this study on mandatory home state regulation of potentially harmful business activities in or pertaining to illegally occupied territories is based, and, secondly, by justifying why these premises – rather than others – are taken as a starting point. One of these premises or “building blocks” pertains to the notion of “illegal occupation” and to what extent this subcategory of “military occupation” constitutes a situation created or maintained in serious breach of jus cogens, making it subject to the aggravated responsibility regime for non-directly affected states under Articles 40–41 ARSIWA and international organisations under Draft Articles 41–42 DARIOWA.