Supreme Court: A Force Majeure Certificate Obtained After Contract Termination Can Still Confirm Earlier Force Majeure

⚖️ Ukraine | Commercial Disputes | Force Majeure

Case Details

Case No.: 922/193/23
Court: Supreme Court, Commercial Cassation Court
Decision Date: 13 December 2023
Case Category: Commercial Law
Subject Matter: Termination of Supply Agreement
Sub-Subject: Force Majeure / Unilateral Termination / Force Majeure Certificate / Martial Law
Underlying Contract: Supply Agreement
Relief Sought: Termination of the contract and declaration that the purchaser had no right to demand contractual performance
Contractual Mechanism: Right to unilateral termination where force-majeure circumstances continued for more than 30 days
Key Issue: Whether a force-majeure certificate obtained only after termination of the contract could confirm circumstances that had already prevented contractual performance
Outcome: The Supreme Court upheld the appellate court’s conclusion that the supplier had validly exercised its contractual right to terminate the agreement.

Background of the Dispute

Agristar LLC brought a counterclaim seeking termination of a supply agreement and a declaration that the purchaser had no right to demand performance under the contract.

The company argued that Russia’s military aggression against Ukraine and the introduction of martial law had created force-majeure circumstances that made performance of its contractual obligations impossible.

The first-instance commercial court rejected the counterclaim.

The appellate commercial court reversed that decision and adopted a new judgment dismissing the relevant opposing claim and recognising the legal significance of the supplier’s contractual termination.

The dispute subsequently reached the Commercial Cassation Court of the Supreme Court.

The Supreme Court agreed with the appellate court’s conclusions.

The Contract Contained a Specific Force Majeure Termination Mechanism

An important feature of the case was the wording of the parties’ contract.

Clause 8.3 of the supply agreement permitted unilateral termination where force-majeure circumstances continued for more than 30 days.

The contract therefore did not leave the consequences of prolonged force majeure entirely to general statutory rules.

The parties had themselves agreed in advance what could happen if extraordinary circumstances persisted beyond the specified period.

This contractual allocation of risk became central to the Supreme Court’s analysis.

Force Majeure Had Continued for More Than 30 Days

The relevant force-majeure circumstances began on 24 February 2022.

By 1 April 2022, when Agristar sent its notice to the purchaser, those circumstances had continued for 36 days.

The contractual threshold of more than 30 days had therefore been exceeded.

Agristar notified the purchaser of the early termination of the supply agreement by letter dated 1 April 2022.

The company stated that the agreement would terminate on 15 April 2022.

The notice was therefore sent 14 days before the intended termination date, in accordance with the contractual notice mechanism.

The Supreme Court agreed that these circumstances enabled Agristar to exercise the unilateral termination right contained in clause 8.3 of the contract.

A Force Majeure Certificate Does Not Have to Be Obtained Immediately

One of the most practically significant aspects of the judgment concerned the timing of force-majeure certification.

The Supreme Court explained that obtaining a certificate after the contract has already been terminated does not, by itself, affect the certificate’s legal nature or evidential relevance.

Under the applicable certification rules of the Ukrainian Chamber of Commerce and Industry and authorised regional chambers, a force-majeure certificate confirms circumstances in relation to obligations whose performance date has already arrived.

The legislation does not establish a general period within which such a certificate must necessarily be obtained.

Consequently, the fact that certification occurs later than the underlying force-majeure event — or even after contractual termination — does not automatically make the certificate legally ineffective.

Notice of Force Majeure and Certification Are Different Steps

The Supreme Court drew an important distinction between two matters that businesses sometimes treat as if they were the same:

notification of the counterparty, and
obtaining formal certification of force majeure.

They perform different functions.

A contractual force-majeure clause may require a party to notify its counterparty of the occurrence of relevant circumstances within a specified period.

That notification obligation must be considered according to the wording of the contract.

Obtaining a certificate from the Ukrainian Chamber of Commerce and Industry, however, is a separate process.

The Court noted that certification may only become relevant once performance of a particular obligation has fallen due and the force-majeure circumstances have affected that performance.

It follows that the certificate may legitimately be issued considerably later than the date on which the party first discovered that force majeure was affecting the contract.

Late Certification Does Not Necessarily Destroy a Force Majeure Defence

The Supreme Court referred to its earlier approach in case No. 910/15264/21, reflected in the Grand Chamber’s judgment of 31 August 2022.

The principle is commercially important.

A party may become aware that force-majeure circumstances make performance impossible at one point in time, notify its contractual counterparty in accordance with the agreement, and obtain formal certification later.

Those dates need not necessarily coincide.

Accordingly, a counterparty should not assume that a force-majeure position fails solely because the relevant certificate was obtained after the event, after the missed performance date or after termination of the contract.

The substantive question remains whether the relevant circumstances existed and whether the contractual and legal requirements for relying upon them were satisfied.

Timely Notice Remains Critical

Although the Supreme Court accepted that certification may occur later, the case does not mean that timing is irrelevant.

Agristar had sent its termination notice on 1 April 2022.

The force-majeure circumstances had then continued for 36 days, exceeding the contractual 30-day threshold.

The company also gave the purchaser 14 days’ notice of termination, specifying 15 April 2022 as the termination date.

The distinction is therefore important:

a certificate may be obtained later, but contractual notification requirements should still be complied with.

Foreign companies dealing with Ukrainian counterparties should consequently examine the force-majeure clause itself before assessing whether a notification or termination was valid.

Contractual Drafting Determined the Result

The judgment also demonstrates the practical importance of contractual drafting.

The supplier’s position did not depend merely on a general argument that war made performance difficult.

The agreement contained an express mechanism dealing with prolonged force majeure.

That mechanism established:

• the relevant event;

• a duration threshold of more than 30 days;

• a right to unilateral termination; and

• a notification procedure.

Once the factual conditions specified by the parties had arisen and the agreed procedure had been followed, the contractual mechanism could operate.

This distinguishes the case from disputes in which a party relies only on general statutory concepts without a clearly drafted contractual termination right.

The Supreme Court’s Decision

The Commercial Cassation Court agreed with the appellate court that the circumstances allowed Agristar LLC to exercise its contractual right to unilateral termination.

The Supreme Court emphasised that:

• force-majeure circumstances had continued for more than the 30-day period specified in the contract;

• Agristar sent the purchaser notice of early termination within the procedure contemplated by the agreement;

• the termination date was set 14 days after the notice;

• obtaining the force-majeure certificate after termination did not deprive it of its legal significance;

• Ukrainian legislation did not establish a general deadline within which such a certificate had to be obtained; and

• notification of the counterparty and obtaining a formal force-majeure certificate were legally distinct matters.

The Supreme Court therefore upheld the appellate court’s conclusions.

Why This Decision Matters

The judgment is particularly relevant to foreign companies contracting with Ukrainian suppliers, purchasers and other counterparties during wartime.

It shows that force-majeure disputes should not be reduced to the simple question:

“When was the force-majeure certificate issued?”

The more important analysis concerns the contract itself and the chronology of events.

Businesses should determine:

• what the contract defines as force majeure;

• whether the relevant event actually affected contractual performance;

• when the force-majeure circumstances began;

• how long they continued;

• whether the contract requires immediate notification;

• whether that notification was properly given;

• whether prolonged force majeure creates a right to suspend or terminate the contract;

• whether a particular notice period applies; and

• what evidence is required to establish the relevant circumstances.

A certificate issued later may still be relevant evidence. But it does not replace compliance with contractual notification and termination requirements.

Lions Lawyers’ Analysis

This judgment should be read together with other Supreme Court decisions concerning force majeure rather than as establishing that a certificate automatically proves a force-majeure defence.

The decisive point is narrower.

Late certification and late notification are not the same thing.

Where a contract requires prompt notification of force majeure, a party should comply with that requirement. Formal certification by the Ukrainian Chamber of Commerce and Industry may follow later because certification performs a different evidential function.

The case also demonstrates why carefully drafted force-majeure clauses can materially reduce uncertainty.

Instead of leaving the consequences of prolonged force majeure unresolved, the parties may specify a defined period after which either party acquires a right to terminate, together with the required notice procedure and evidential requirements.

For foreign companies entering into Ukrainian-law contracts, particular attention should therefore be paid to the relationship between force majeure, notification, certification, suspension of performance and termination. These concepts are related but legally distinct.

Lions Lawyers advises Ukrainian and international clients on commercial disputes and contracts in Ukraine, including force majeure, termination of supply agreements, wartime contractual performance, contractual notices, Ukrainian Chamber of Commerce and Industry certification and cross-border commercial disputes. We provide full-service legal representation as well as standalone Ukrainian-law opinions for foreign companies and international counsel assessing contractual rights and risks in Ukraine.

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