Violation of foreign trade deadlines due to delays at the border

Article 13(1) of the Law of Ukraine dated June 21, 2018 No. 2473-VIII "On Currency and Currency Transactions" (Law No. 2473) stipulates that the National Bank of Ukraine (the "NBU") has the right to set deadlines for settlements under transactions for the export and import of goods, as well as exceptions and/or specifics of the introduction of this protection measure for certain goods and/or industries.

Pursuant to part two of Article 13 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 contracts, but no later than the timeframe and in the amount established by the National Bank of Ukraine.

If the NBU sets a deadline for settlements under residents' import transactions, the goods must be delivered within the timeframe specified in the contracts, but no later than the deadline for settlements set by the NBU from the date of advance payment (prepayment) (Article 13(3) of Law No. 2473).

Part six of Article 13 of Law No. 2473 stipulates that if the performance of an agreement provided for in parts two or three of this Article is suspended due to force majeure, the payment term established in accordance with part one of this Article and the accrual of penalties in accordance with part five of this Article shall be suspended for the entire period of force majeure and resume on the day following the day on which such circumstances expire.

The occurrence and termination of force majeure shall be confirmed by a relevant 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).

At the same time, the mere existence of force majeure (force majeure) does not exempt from liability for failure to fulfill obligations under the terms of the contract, nor from obligations under legislative and other regulatory acts.

In accordance with the current legislation of Ukraine, a document confirming the occurrence of force majeure (force majeure) is a certificate issued by the Ukrainian Chamber of Commerce and Industry (the "CCI") or its authorized regional CCI.

A business entity that violates its obligations under a contract (agreement) or obligations stipulated by laws and regulations has the right to apply to the competent authority (CCI) of the country where the circumstance (blockade, strike and other restrictions) occurred to obtain a relevant document confirming the force majeure and its duration.

The Polish-Ukrainian Chamber of Commerce prepares and issues documents in accordance with the requirements of the legislation of the Republic of Poland regulating the content and form of the document. In the Republic of Poland, force majeure is certified by issuing a conclusion - Confirmation of Force Majeure (Potwierdzenia fors-mażoru).

At the same time, the confirmation of the Polish-Ukrainian Chamber of Commerce is not a ground for suspension of the deadline for payments established in accordance with part one of Article 13 of Law No. 2473 and the accrual of penalties in accordance with part five of Article 13 of Law No. 2473.

The State Tax Service of Ukraine emphasizes that in case of force majeure (force majeure) circumstances (extraordinary and unavoidable circumstances), which make it impossible for a resident of Ukraine to comply with the deadlines for settlements for export and import of goods set by the NBU, he should apply to the Ukrainian Chamber of Commerce and Industry or an authorized regional CCI with a statement certifying such circumstances.

In this case, the Chamber of Commerce and Industry, upon receiving an application from a resident of Ukraine who violates the obligations to meet the deadlines for payments due to force majeure in the territory of the Republic of Poland, must take into account the confirmation of the competent authority (CCI), in particular, the Polish Chamber of Commerce and Industry and/or the Polish-Ukrainian Chamber of Commerce, to establish a causal link between the circumstances/event and the inability to fulfill its specific obligations.

Thus, force majeure is not an automatic ground for exemption from obligations and suspension of payment deadlines and penalties, in accordance with part five of Article 13 of Law No. 2473, the party to the contract must confirm not only the fact of force majeure, but also its impact on the fulfillment/inability to fulfill contractual obligations.

In addition, a certificate of the Ukrainian Chamber of Commerce and Industry may confirm the occurrence of force majeure and contain a conclusion on the impact of this event on the ability of a resident or non-resident to fulfill specific obligations, but the supervisory authority may take such a certificate into account only if there are grounds to believe that the failure to fulfill obligations arose under the circumstances specified in the certificate.