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Over the last few days, immediately after the announcement of the Decree of the President of Ukraine "On the imposition of martial law in Ukraine" enquiries have been coming to the Ukrainian Chamber of Commerce and Industry and its regional chambers as to whether the UCCI can certify force majeure circumstances (circumstances of irresistible force) in connection with this situation.
Certification of force majeure by the Ukrainian Chamber of Commerce and Industry is one of its duties provided by the Law of Ukraine "On Chambers of Commerce and Industry in Ukraine" No. 671, dated 02.12.1997, as well as the Charter of the Ukrainian Chamber of Commerce and Industry. In addition, this duty may be performed by its authorized regional chambers of commerce and industry.
Certification of force majeure circumstances (circumstances of irresistible force) based on general situations and / or imposed/ current regimes is not envisaged by legislation of Ukraine. At the same time, a number of prerequisites are needed to confirm force majeure circumstances that may arise in a particular case.
Fully aware of the urgency of this issue, we consider it expedient to explain the basic mechanism of certifying force majeure circumstances (circumstances of irresistible force) in accordance with the current legislation.
Thus, Art. 14-1 of the Law of Ukraine "On Chambers of Commerce and Industry in Ukraine" defines such circumstances as follows: "Force majeure circumstances (force majeure) are extraordinary and inevitable circumstances that objectively make it impossible to fulfill the obligations provided by the terms of an agreement (contract, treaty, etc.), duties prescribed by legislative and other regulatory acts, namely: threat of a war, an armed conflict or a serious possibility of such conflict, including but not limited to enemy attacks, blockades, military embargoes, acts of a foreign enemy, general military mobilization, hostilities, declared and undeclared warfare, acts of a public enemy, disturbances, acts of terrorism, sabotage, piracy, confusion, invasion, a blockade, a revolution, a mutiny, an insurrection, mass riots, the imposition of a curfew, expropriation, forcible seizure, seizure of enterprises, requisition, a public demonstration, a blockade, a strike, an accident, illegal actions of third parties, a fire, an explosion, long breaks in the work of transport, which are regulated by provisions of relevant decisions and acts of state authorities, closure of sea channels, embargo, prohibition of (restrictions on) export / import, etc., as well as events caused by exceptional weather conditions and natural disasters, namely, an epidemic, a strong storm, a cyclone, a hurricane, a tornado, a storm, a flood, accumulation of snow, ice, hail, frost, freeze-ups on the sea, straits, ports, passes, a earthquake, a lightning, a fire, a drought, subsidence and landslides, other natural disasters, etc."
The ground for certification of force majeure circumstances (circumstances of irresistible force) is the occurrence of one or more of the above-mentioned circumstances, as well as those specified by the parties under an agreement, contract, treaty, model agreement, legislative, departmental and / or other regulatory acts that affected the obligation in such a way as to make it impossible to fulfill within the prescribed period.
The documents submitted by the applicant to obtain certification of force majeure circumstances (circumstances of irresistible force) must prove:
the extraordinary nature of such circumstances;
their unpredictability;
their inevitability;
the existence of a causal link between a circumstance / event and the inability of the applicant to fulfill its specific obligations.
The procedure for certifying force majeure circumstances (circumstances of irresistible force) is established by the Rules of Certification of force majeure circumstances (circumstances of irresistible force) by the Ukrainian Chamber of Commerce and Industry and regional chambers of commerce and industry (hereinafter referred to as the Rules).
In accordance with the Rules, force majeure circumstances (circumstances of irresistible force) are certified at the request of economic entities and/or individuals for each separate agreement by a particular tax obligation and/or other obligation/duty, the performance of which became due in accordance with the terms and conditions of an agreement, contract, treaty, or legislative or other regulatory acts and the performance in respect of which became impossible due to such circumstances.
An application requesting certification of force majeure circumstances (circumstances of irresistible force) must be executed in accordance with the established form (in accordance with Annexes No.1,2,3,4 to the Rules) and signed by the head of an enterprise or organization and stamped with the enterprise seal, and may be submitted by a person authorized by the head of an enterprise or organization to act on their behalf. An application submitted by an individual shall be signed and submitted personally or by their authorized person. Each application must accompanied by a separate package of documents.
The application, among other things must indicate which obligation under an agreement, contract, treaty and/or a law or a regulatory act cannot be fulfilled in due time as a result of the occurrence of force majeure circumstances (circumstances of irresistible force); specific force majeure circumstances (circumstances of irresistible force) which are referred to by the applicant, including such reference and proof of such circumstances; their onset date and validity term, as well as other relevant information.
For more information, please visit the website of the Ukrainian Chamber of Commerce and Industry (http://www.ucci.org.ua/). To obtain advice apply to the Legal Support Directorate of the UCCI https://www.ucci.org.ua/en/departments/department-legal-support
A financial or economic crisis, a default, an increase of official and commercial foreign exchange rates of foreign currencies to the national currency, a failure to fulfill its obligations or a breach of its obligations by the counterparty of the debtor, unavailability on the market of goods needed to perform one's obligations, insufficiency of the debtor's funds, etc. are not by any means considered force majeure circumstances (circumstances of irresistible force).
