Problems of proving force majeure circumstances in contractual obligations during martial law in Ukraine

With the beginning of the full-scale invasion of Ukraine, many counterparties in contractual obligations faced the problem of not being able to fulfill part of their contractual obligations.Given the scale of business activities, the number of participants in contractual relations, circumstances that made it impossible to fulfill contracts within the specified time limits, etc., on February 28, 2022, the Chamber of Commerce and Industry published a general official letter on certifying force majeure circumstances (force majeure circumstances) during the period of martial law in Ukraine. Thus, the basis for certifying force majeure circumstances (force majeure circumstances) is the presence of one or more circumstances specified in clause 2 of Article 14-1 of the Law of Ukraine “On Chambers of Commerce and Industry in Ukraine”. The article analyzes judicial practice and highlights the problems of recognition of force majeure circumstances by national courts, despite the presence of a certificate issued by the Chamber of Commerce and Industry. A correlation has been made between such concepts as «material change in the circumstances of the contract» and «force majeure». A conclusion was drawn about the identity of the concepts of «force majeure» and «force majeure circumstances», taking into account national regulatory legal acts, as well as the UNIDROIT Principles of International Commercial Contracts. It is noted that not all regulatory legal acts use the term «force majeure», in particular, Article 79 of the UN Convention «On Contracts for the International Sale of Goods» contains «obstacle beyond control», which by its content and nature is a force majeure circumstance. The legislation of various European countries is analyzed in the context of approaches to defining and understanding force majeure. In particular, the Civil Code of Romania, the Civil Code of Spain, and the legislation of Croatia. It was concluded that the certification of force majeure by the Chamber of Commerce and Industry and the receipt of a certificate by the interested party are not a presumption that in any case is the basis for exemption from civil liability. It was established that force majeure circumstances are not of a prejudicial (pre-established) nature.