Untimely submission of a certificate from the Ukrainian Chamber of Commerce and Industry does not deprive a party of the right to rely on force majeure circumstances if the contract does not provide for such consequences – SC CommCC JC

The mere fact of untimely submission of a certificate from the Ukrainian Chamber of Commerce and Industry does not deprive a party of the right to rely on force majeure circumstances if the contract does not expressly provide for the loss of such a right. When resolving a dispute, the decisive factor is the timely notification of the counterparty about the occurrence of force majeure circumstances, while the Chamber of Commerce and Industry certificate serves only as proof of their existence and may be obtained later.

This conclusion was reached by the Joint Chamber of the Commercial Cassation Court within the Supreme Court.

JSC “Naftogaz of Ukraine” filed a lawsuit against PJSC “Mariupolgaz” for the recovery of debt under a natural gas sale and purchase agreement, as well as 3% per annum and inflationary losses. The claimant believed that the respondent could not rely on force majeure circumstances because it had provided the Ukrainian Chamber of Commerce and Industry certificate in violation of the 14-day deadline established by the contract.

The commercial court of first instance, whose decision was upheld by the appellate commercial court, partially granted the claim.

The lower courts established that the respondent had timely notified the claimant of the occurrence of force majeure circumstances related to acts of terrorism in Donetsk region, while the Chamber of Commerce and Industry certificate was provided later.

When reviewing the case, the Supreme Court noted that it is necessary to distinguish between the obligation to notify the other party of the occurrence of force majeure circumstances and the obligation to provide evidence of their existence. Notification must be made within the period specified in the contract or immediately after such circumstances arise, whereas obtaining a Chamber of Commerce and Industry certificate depends on a separate procedure and may occur significantly later.

The Joint Chamber of the Commercial Cassation Court of the Supreme Court emphasized that, in the absence of a direct contractual provision stipulating the loss of the right to rely on force majeure in the case of untimely submission of the Chamber of Commerce and Industry certificate, such a violation cannot automatically result in negative consequences for the party. Compliance with the obligation to timely notify the counterparty of force majeure circumstances is decisive.

The Court also noted that a Chamber of Commerce and Industry certificate does not have predetermined evidentiary value and is subject to evaluation by the court in conjunction with other evidence. At the same time, the parties are entitled to independently determine in the contract the procedure for confirming force majeure and the consequences of non-compliance with the relevant procedures.

Following the review of the case, the Joint Chamber of the Commercial Cassation Court of the Supreme Court clarified the legal conclusion regarding the application of a force majeure clause and stated that untimely provision of the Chamber of Commerce and Industry certificate, in the absence of expressly stipulated contractual consequences, does not deprive a party of the right to rely on force majeure circumstances.

Resolution of the Supreme Court dated May 1, 2026, in case No. 905/541/16 – http://reyestr.court.gov.ua/Review/137418594.  

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.