Party Autonomy and (Public Interest) Regulation have a complex relationship. This relationship does not necessarily become less complex if one reduces the topic to one area, at least not if this area is European Contract Law – as the overall framing of this book would indeed suggest. On the contrary, focusing the discussion of this relationship on European Contract Law in particular adds at least three types of complexity. First is the complexity of several levels of rule-setting and their multiple application issues (see below sections 2.2. and 4.2.). Second is the complexity of a theoretical basis and underpinning nourished by multiple traditions (comparative history of thought – which runs in parallel, at the level of theories, to what is comparative law at the level of rules, concepts and legal solutions). Finally, there is also the complexity of starting from more than one concept of private autonomy and one concept of regulation – probably more complex than within one legal tradition, for instance one national law such as German law. Indeed, and just as an example, ‘regulating contracts’ can be understood as a concept where contract law is analysed and designed mainly from an incentive perspective, steering human behaviour. In this case, one would for instance analyse such concepts as unfair contract terms law from this perspective, but also any regulation of breach of contract or very traditional private law concepts such as the theory of mistake.

Building on Muriel Fabre-Magnan's thought-provoking Chapter 6 of this volume, I endeavour here to offer another view of Rouen Cathedral. I mainly juxtapose her egalitarian views with more liberal ones; at the same time, I do not conceal my own preference for certain positions in relation to the content of freedom of contract and its reasonable limits. In this context, I use some illustrative examples that help capture the strained relationship between freedom of contract and paternalistic interventions mainly in favour of weaker transacting parties.

The structure of this chapter is as follows. In section 1, I elaborate on an account of the jurisprudential background that underpins freedom of contract, personal autonomy, and their limits. In section 2, my main focus is on practical cases in which some sort of paternalistic interference may come into play. In section 3, I first briefly present the limits of freedom of contract according to civil law and then deal with a typical case of intervention for the protection of the weaker party, namely spousal and parent suretyships, which are usually characterised by a structural bargaining imbalance between the contracting parties. In section 4, I try to shed light on the possible power imbalances in arbitration agreements, within the framework of the general trend towards privatisation of the state's adjudicating (and enforcing) mechanisms.

1. Aim of the chapter – After having clarified the meaning of the notion of “illegal occupation” and how it relates to non-directly affected states’ and international organisations’ aggravated responsibility in case of serious breaches of jus cogens (see supra Chapter 1 and also infra Chapter 5), this second preliminary chapter focuses on the actual object of this study: business activities of private corporate actors in or pertaining to (illegally) occupied territories. What are they? How may they impact illegal occupations and potentially render aid or assistance to the maintaining of situations created in serious breach of jus cogens? What does international law have to say about them? These are but some of the questions which will be zoomed in on in this chapter. In the broader framework of this book, this chapter mainly aims to provide insight into the potential connection between private business conduct in or pertaining to illegally occupied territories and the maintaining of illegal occupations. This is crucial as it facilitates the understanding of which forms of corporate conduct may fall within the ambit of the obligation advanced in this book: a duty incumbent on home states and competent international organisations to regulate potentially harmful private business activities in or pertaining to illegally occupied territories based on their aggravated responsibility in case of serious breaches of jus cogens – more in particular, the duty of non-assistance.

1. Aim of the chapter – The previous chapter demonstrated why the duty of non-assistance is advanced in this book as a potentially adequate legal basis for mandatory home state regulation of potentially harmful private business conduct in or pertaining to illegally occupied territories, as well as how this customary obligation is traditionally shaped in terms of ratio legis, nature, scope and content. Building on these findings, the current chapter turns to the issue of whether this obligation – which is initially conceptualised as a negative obligation – may also include a positive component, obliging states and competent international organisations not only to refrain from certain conduct, but also to take positive action to protect against potentially harmful conduct of private entities, such as businesses. In this context, we recall this book's central research issue, which seeks to examine to what extent the customary duty of non-assistance imposes on home states and competent international organisations a positive obligation to ensure that their private corporate nationals do not render aid or assistance to the maintaining of illegal occupations and, if existing, what such a positive obligation would entail. Before addressing the possible nature, scope and content of such a positive obligation (see infra Chapter 7 and 8), we must, thus, first verify whether a positive component may be read into the duty of non-assistance and, if so, on what legal arguments such contention rests. As such, this chapter aims to give an overview of the different “legal techniques” available under international law to substantiate that the duty of non-assistance, apart from its negative reading, also contains a positive component.

1. Aim and structure of the conclusion – After having responded in detail to the two components of the book's central research question, namely with regard to (1) the adequacy as a legal basis and (2) the potential operationalisation of the suggested positive due diligence component attached to the customary duty of non-assistance obliging home states and competent international organisations to ensure that their corporate nationals do not render aid or assistance to the maintaining of illegal occupations in the previous chapter, we thought it useful to, on a concluding note, take a step back and put the book's findings as such under scrutiny. What follows is a vetting exercise of the book's findings, in which we aim to provide an overview of both the strengths and challenges the conducted research has unveiled. We start by highlighting how this book has proved to be of added value to provide an additional, adequate legal avenue for home states and competent international organisations to address potentially harmful business conduct in or pertaining to illegally occupied territories on the international plane – both from an academic, legally-scientific perspective, as well as in light of resolving practical issues regarding potentially harmful transnational business activities on the ground (see infra, s 2.). Secondly, we will explain that this legal avenue, by grounding mandatory home state regulation of potentially harmful business conduct in or pertaining to illegally occupied territories on states’ and competent international organisations’ customary duty of non-assistance, is, in and of itself, not sanctifying and presents certain challenges of itself (see infra, s 3.).