Abstract

TOBAR TORRES, Jenner Alonso. Hardship theory during the pandemic: Is it a bridge between lex mercatoria and human rights. Civilizar [online]. 2022, vol.22, n.42, e20220101.  Epub Jan 11, 2023. ISSN 1657-8953.  https://doi.org/10.22518/jour.ccsh/20220101.

In international contract law, the hardship theory has been recognized as a component of the so-called lex mercatoria, based on its inclusion in different normative texts. However, despite its wide doctrinal recognition, before the pandemic hardship theory had few scenarios of practical application in national and international courts. The enormous effects and challenges that COVID-19 has posed in contractual-related matters have generated a favorable scenario for making of this theory one of the main tools for private law and lex mercatoria to generate justice solutions and solidarity, as well as to ensure the respect of human rights for citizens whose business relationships were affected during the pandemic. This paper addresses this problem by analyzing the potential of hardship theory for building bridges between lex mercatoria and human rights in the post-pandemic era, which could assist in overcoming the long-lasting division between both regimes.

Keywords : Hardship theory; contractual performance; human rights; contractual solidarity; lex mercatoria..

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