Confirmation of force majeure circumstances
While the companies and entrepreneurs run business, they often face situations when one of the parties to the contract cannot fulfill their obligation due to circumstances out of their control, and, this party refers to force-majeure circumstances.
- relief from civil, economic and legal responsibility for non-fulfillment of terms and conditions of the contract;
- delay of payment and tax obligations.
Term “force majeure” means “irresistible force” as translated from French. However in the national theory of law there exists an opinion that these terms shall not be equated. Notion “Irresistible force” only means acts of elements while “force majeure” is a wider category including, in addition to natural phenomena, public, political, social and other phenomena which the parties define by themselves in the contract as a basis for non-fulfillment of their obligations during action of the appropriate circumstances.
According to Part 2, Article 141 of the Law of Ukraine “On the Chambers of Commerce and Industry in Ukraine”, the force-majeure circumstances (contingencies) are extraordinary and unpreventable circumstances making objectively impossible fulfillment of the obligations stipulated by the terms and conditions of the agreement (contract, etc.), obligations according to laws and other regulatory documents, namely: threat of war, military conflict or serious threat of such conflict, including, without limitation, attacks of enemy, blockades, military embargo, actions of foreign enemy, nation-wide military mobilization, military actions, declared and undeclared war, actions of public enemy, disturbances, acts of terrorism, sabotages, piracies, disorders, invasions, blockade, revolution, conspiracy, insurrections, mass disorders, imposing a curfew, expropriation, confiscation, seizure of enterprises, requisition, public demonstration, blockade, strike, emergency, unlawful actions of the third parties, fire, explosion, durable interruptions in functioning transport caused by provisions of the appropriate decisions and documents of state authorities, blocking sea straits, embargo, prohibition (limitation) of export/ import, etc., as well as circumstances caused by extreme weather conditions and acts of elements, namely epidemic, severe storm, cyclone, hurricane, tornado, flood, snow build-up, ice crust, glazed rain, freezing sea, straits, ports, mountain passes, earthquake, lightning, fire, drought, soil subsidence and displacement, other acts of elements, etc.
Extreme weather conditions and acts of elements (epidemic, cyclone, tornado, severe storm, hurricane, flood, snow build-up, ice crust, earthquake, drought, fire, soil subsidence and displacement).
Unforeseen situations caused by action of the party no being a party to the contract (military actions or their threat, civil disorders, revolution, strikes, piracy, sabotage, explosions, emergency, fires, etc.).
Lawful and unlawful actions of state authorities, including adoption by them of some regulatory documents.
Conclusion on availability of force majeure
According to Part 1, Article 14-1 of the Law of Ukraine “On the Chambers of Commerce and Industry in Ukraine”, the Chamber of Commerce and Industry of Ukraine and authorized by it regional chambers of commerce and industry certify force-majeure circumstances and issue certificates confirming such circumstances. The procedure used for certification of force-majeure circumstances is presented in the (Regulation) Proforma application on confirmation of force majeure for contractual obligations (Form 1) Proforma application on confirmation of force majeure for tax obligations (Form 2) for: - extension of deadlines (Article 102 of the Tax Code of Ukraine);; - delay in relation to payment obligations and tax debt (Article 100 of the Tax Code of Ukraine). Proforma application on confirmation of force majeure for writing off bad debt (Form 3). Payment particulars
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