A cláusula de hardship como instrumento de conservação do negócio jurídico no direito contratual internacional

Abstract

The advancement of new technologies and the advent of globalization have helped legal and economic relations to cross traditional national borders, causing the movement of goods and services around the globe. The new forms of contracting have brought with them new difficulties and, among them, the possibility of unexpected changes of circumstances, which can be one of the biggest problems that parties may face in international trade, especially when it comes to long-term contracts. This scenario, characterized by dynamism and uncertainties, requires the ability to renegotiate and the consequent search for contractual balance, so that the contractual clauses meet the best interest of the contractors. The present study proposes to analyze a typical instrument for the maintenance of international contracts, mainly those of continuous or long duration: the hardship clause. The aim is to clarify the definition and application of this clause and to differentiate it from the force majeure clause. There will also be a parallel between the maintenance of legal business in the international sphere and in the national sphere. Finally, it is intended to analyse whether the hardship clause is an effective instrument for the conservation of the contract in international contract law.