When penalties for violation of payment terms for foreign trade transactions are suspended

Pursuant to part one of Article 13 of Law of Ukraine No. 2473-VIII "On Currency and Currency Transactions" dated June 21, 2018, the National Bank is authorized to set deadlines for settlements under transactions for the export and import of goods.

Pursuant to Article 13(2) of Law No. 2473, if the NBU sets a deadline for settlements under resident export transactions, funds must be credited to resident accounts in Ukrainian banks within the timeframe specified in the agreements, but no later than the timeframe and in the amount established by the NBU.

The debt repayment period is calculated from the date of customs clearance of the exported products, and in the case of export of works, services, intellectual property rights and/or other non-property rights - from the date of execution in writing (in paper or electronic form) of an act, invoice or other document certifying their provision.

Pursuant to Article 13(3) of Law No. 2473, if the NBU sets a deadline for settlements under resident import transactions, the goods must be delivered within the timeframe specified in the contracts, but not later than the deadline for settlements set by the NBU from the date of advance payment (prepayment).

Part five of Article 13 of Law No. 2473 stipulates that violation by residents of the settlement period established in accordance with Article 13 of Law No. 2473 shall result in the accrual of a penalty for each day of delay in the amount of 0,3 percent of the amount of unpaid funds under the contract (the value of the undelivered goods) in the national currency (in case of settlements under a foreign economic agreement (contract) in the national currency) or in a foreign currency converted into the national currency at the NBU exchange rate set on the day the debt arose. The total amount of the accrued penalty may not exceed the amount of the unpaid funds under the contract (the value of the undelivered goods).

The liability provided for in part five of Article 13 of Law No. 2473 does not apply to resident business entities that have committed the relevant offense if import operations cannot be completed as a result of the Resolution of the Cabinet of Ministers of Ukraine "On the Application of the Ban on the Import of Goods from the Russian Federation" No. 426 dated April 09, 2022 (Article 16(13) of Law No. 2473).

Pursuant to Article 13(6) of Law No. 2473, if the performance of an agreement provided for in Article 13(2) or (3) of Law No. 2473 is suspended due to force majeure, the payment term established in accordance with Article 13(1) of Law No. 2473 and the accrual of penalties in accordance with Article 13(5) of Law No. 2473 shall be suspended for the entire period of force majeure and shall be resumed on the day following the day on which such circumstances expire.

Confirmation of the occurrence and termination of force majeure is a certificate of the authorized organization (body) of the country of location of the party to the foreign economic agreement (contract) or a third country in accordance with the terms of this agreement (contract).

Pursuant to part seven of Article 13 of Law No. 2473, if a resident's claim for recovery from a non-resident of a debt arising from the non-resident's failure to comply with the deadline provided for in a foreign economic agreement (contract) is accepted for consideration by a court or international commercial arbitration, or if a document on recovery of such debt from a non-resident debtor in favor of a resident is accepted for proceedings by the authorized body of the relevant country, the term established in accordance with Article 13 of the Law No. 2473 shall be set at least one year.

In case of a court or international commercial arbitration decision to dismiss a claim in whole or in part as to property claims or to refuse to initiate proceedings or to leave a claim without consideration, as well as in case of recognition of a document on debt collection from a non-resident debtor as unenforceable, invalid, unlawful, etc., and (or) closure (termination) of proceedings without crediting funds to the accounts of residents in Ukrainian banks under such a document, the period established in accordance with Article 13 of Law No. 2473 shall be renewed and a penalty for its violation shall be charged for each day of delay, including the period for which the period was suspended.

If the court or international commercial arbitration makes a decision to satisfy the claim, only the penalty accrued before the date of acceptance of the claim for consideration by the court or international commercial arbitration shall be paid.