The Court Explained the Limits of Force Majeure: Simple Delay with the Certificate issued be CCI Does Not Deprive the Right to Protection
The mere fact of untimely submission of the Chamber of Commerce and Industry of Ukraine certificate, in the absence of directly stipulated legal consequences of such a violation in the contract, cannot be regarded as an unconditional basis for depriving a party of the right to invoke force majeure circumstances. This conclusion was reached by the Eastern Commercial Court of Appeal.
By the ruling dated 30.07.2025, the Eastern Commercial Court of Appeal upheld the decision of the Commercial Court of Donetsk Region dated 11.03.2025 in case No. 905/541/16, which partially satisfied the claim for debt recovery, 3% annual interest, and inflation losses under a standard contract for the purchase and sale of natural gas.
The appellate court, agreeing with the conclusions of the local commercial court, proceeded from the fact that the buyer (defendant) identified the conduct of hostilities and acts of terrorism in the city of Novoazovsk and Novoazovsk district of Donetsk region (in the ATO zone) as force majeure circumstances, which made it impossible to timely fulfill contractual obligations, as certified in the prescribed manner by the Chamber of Commerce and Industry of Ukraine certificate. The defendant had legitimate expectations that the problems with the impossibility of receiving funds from the state budget for payment for natural gas used by budgetary institutions would not last for such a significant time and would be resolved, enabling timely fulfillment of obligations to the plaintiff. Only after the buyer (defendant) absolutely and indisputably confirmed and became convinced of the duration of such problems and that these problems would prevent fulfilling obligations within the contractual term, did he notify the supplier and send the Chamber of Commerce and Industry certificate. Thus, not only the fact of the ATO being conducted in Novoazovsk and Novoazovsk district of Donetsk region is a force majeure circumstance, but also the fact that such circumstances became prolonged. Therefore, the appellate commercial court considered that the defendant's actions to notify the plaintiff about the presence of force majeure circumstances occurred after the defendant realized the duration of the ATO and related negative circumstances and consequences in Ukraine, which made it impossible to fulfill obligations within the contractual term. The arguments of the appeal that the subject of the dispute is the recovery of debt for supplied natural gas during periods when the defendant had force majeure circumstances are unfounded, since, as established by the court during the case, the plaintiff unjustifiably did not consider the contract terms regarding the offset of funds and the date of debt occurrence according to adjustment annexes to acceptance-transfer acts, and also the plaintiff did not recognize the force majeure circumstances in October – November 2014, as noted in the expert's conclusion.
By the ruling dated 01.05.2026, the Supreme Court in the composition of the United Chamber of the Cassation Commercial Court supported the position of the courts of first and appellate instances, stating that notification of force majeure circumstances must be made within the term established by the contract, and if such term is not defined by the parties (nor by law), then immediately from the moment the party became aware of their occurrence or the possibility of impact on the fulfillment of obligations. Meanwhile, obtaining the Chamber of Commerce and Industry of Ukraine certificate as evidence of such circumstances is objectively linked to the relevant procedure of applying to the authorized body and may occur later, including after the breach of obligation performance. Therefore, the mere fact of untimely submission of the Chamber of Commerce and Industry certificate, in the absence of directly stipulated legal consequences of such violation in the contract, cannot be regarded as an unconditional basis for depriving a party of the right to invoke force majeure circumstances. At the same time, the opposite is possible only if the corresponding prohibition or negative consequences are directly established by the contract terms. Thus, when resolving the dispute, courts must establish whether the party complied with the obligation to timely notify about force majeure circumstances, and only after that evaluate the appropriateness and timeliness of submitting the Chamber of Commerce and Industry certificate as evidence.
Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp, Facebook page and Instagram to stay informed about the most important events.
