A procedure has been approved for confirming force-majeure circumstances under contracts concluded in the context of domestic economic activity
Pepeliaev Group advises that, the Chamber of Commerce and Industry of the Russian Federation (the “CCI of Russia”) has adopted the Regulations on the certification by authorised chambers of commerce and industry of force-majeure circumstances under agreements (contracts) concluded in the context of domestic economic activity[1] (the “Regulations”).
Authorised chambers of commerce and industry will certify the force-majeure circumstances and issue an opinion on such force-majeure circumstances which have emerged in the relevant constituent entity or municipality of the Russian Federation where the chamber in question operates.
Authorised chambers of commerce and industry may not certify force-majeure circumstances that have emerged (1) out of the scope of a non-contractual relationship; (2) under a contract to which an individual who does not have the status of an individual entrepreneur is a party; (3) out of foreign trade transactions for which the certification of force-majeure circumstances lies within the exclusive competence of the CCI of Russia[5].
The following should be attached to the application: (a) a copy of the contract and supplemental agreements and specifications to it (if available and/or if required) which are relevant to the applicant’s obligation; (b) information regarding the scope of obligations performed under the contract at the time the applicant has filed its application; (c) copies of documents issued by competent authorities which confirm the events that the applicant is citing as force-majeure circumstances; (d) a copy of the charter of the legal entity; (e) an extract from the Unified Register of Legal Entities/ Unified Register of Individual Entrepreneurs (in Russian abbreviated to ‘EGRUL' and 'EGRIP’ respectively); (f) a document confirming the appointment (election) of the head of the applicant that is a legal entity (an individual entrepreneur submits a copy of pages 2 and 3 of his/her national passport).
The information and documents submitted will be reviewed and a decision on whether an opinion or a grounded refusal is to be issued or forwarded will be adopted within 10 business days after the registration date of the application[6].
The Regulations determine the procedure for and stages of reviewing an application, as well as the grounds for refusing to issue or for revoking an opinion. Moreover, the Regulations provide for the form of an opinion on force-majeure circumstances.
In the case of court proceedings, an opinion on force-majeure circumstances will make it easier for its holder to prove the legally relevant circumstances. The opinion, however, will not have any predetermined force for a court (article 71(5) of the Russian Commercial Procedure Code), and nor will it release the party that is relying on such opinion to substantiate that party's claims or objections from the obligation to prove same (article 65(1) of the Commercial Procedure Code).
Accordingly, if the other party has objections regarding the existence of a force majeure, this will entail an obligation on the holder of the opinion to present other admissible evidence to the court.
We are also ready to provide other legal support, including in the context of settling disputes and pre-trial dispute resolution, during negotiations with contracting parties, in drafting agreements during the crisis, within proceedings in commercial and courts of all levels. We will also provide recommendations on selecting optimal business solutions for any commercial and corporate law matters.
[1] Resolution No. 7-2 of the CCI of Russia dated 24 June 2021
[2] Clause 1 of section IV of Minutes No. 3 of the meeting of the Government Committee on Enhancing the Sustainable Development of the Russian Economy.
[3] Letter No. 02v/0241 of the CCI of Russia ”On the Guidelines for the issuance by chambers of commerce and industry of opinions regarding force-majeure circumstances under contracts concluded by Russian business enterprises” dated 27 March 2020.
[4] https://tpprf.ru/ru/news/tpp-rf-eksperty-obsudili-voprosy-svidetelstvovaniya-obstoyatelstv-nepreodolimoy-sily-v-ramkakh-vnutr-i419837/
[5] The CCI of Russia certifies force-majeure circumstances in accordance with the conditions of foreign trade transactions and international treaties of the Russian Federation (article 15(3)(n) of Russian Law No. 5340-1 “On chambers of commerce and industry of the Russian Federation” dated 7 July 1993).
[6] The above deadline can be extended further to a decision of the head of the authorised chamber of commerce and industry, but by no more than 10 business days.
That the Regulations have been adopted marks the next step towards implementing best practices in the Russian economic environment where transparent anti-crisis mechanisms are being stipulated for all market participants through the active involvement of the apparatus of chambers of commerce and industry.
Competencies of chambers of commerce and industry
The Regulations establish that authorised chambers of commerce and industry will certify the existence of force-majeure circumstances and issue a relevant opinion.Authorised chambers of commerce and industry will certify the force-majeure circumstances and issue an opinion on such force-majeure circumstances which have emerged in the relevant constituent entity or municipality of the Russian Federation where the chamber in question operates.
Authorised chambers of commerce and industry may not certify force-majeure circumstances that have emerged (1) out of the scope of a non-contractual relationship; (2) under a contract to which an individual who does not have the status of an individual entrepreneur is a party; (3) out of foreign trade transactions for which the certification of force-majeure circumstances lies within the exclusive competence of the CCI of Russia[5].
The procedure for certifying force-majeure circumstances and issuing a relevant opinion
To have force-majeure circumstances certified an applicant will file an application according to the established form which will be signed by the head of the applicant (by an individual entrepreneur) or a person (acting under a power of attorney) authorised by the applicant and will bear the applicant’s stamp (if any).The following should be attached to the application: (a) a copy of the contract and supplemental agreements and specifications to it (if available and/or if required) which are relevant to the applicant’s obligation; (b) information regarding the scope of obligations performed under the contract at the time the applicant has filed its application; (c) copies of documents issued by competent authorities which confirm the events that the applicant is citing as force-majeure circumstances; (d) a copy of the charter of the legal entity; (e) an extract from the Unified Register of Legal Entities/ Unified Register of Individual Entrepreneurs (in Russian abbreviated to ‘EGRUL' and 'EGRIP’ respectively); (f) a document confirming the appointment (election) of the head of the applicant that is a legal entity (an individual entrepreneur submits a copy of pages 2 and 3 of his/her national passport).
The information and documents submitted will be reviewed and a decision on whether an opinion or a grounded refusal is to be issued or forwarded will be adopted within 10 business days after the registration date of the application[6].
Other important aspects of the procedure for certifying force-majeure circumstances
Force-majeure circumstances are certified and opinions regarding force-majeure circumstances are issued for a fee according to the tariffs approved by the CCI of Russia. No fee will be charged for a refusal to issue an opinion regarding force-majeure circumstances.The Regulations determine the procedure for and stages of reviewing an application, as well as the grounds for refusing to issue or for revoking an opinion. Moreover, the Regulations provide for the form of an opinion on force-majeure circumstances.
What to think about and what to do
The procedure for certifying force-majeure circumstances expands the range of anti-crisis instruments for resolving disputes and conflicts. The use of the instrument is aimed at making it easier to prove the fact of a default on obligations owing to force-majeure circumstances. This, in turn, will promote pre-trial dispute resolution provided that the parties to the contract have no disagreements.In the case of court proceedings, an opinion on force-majeure circumstances will make it easier for its holder to prove the legally relevant circumstances. The opinion, however, will not have any predetermined force for a court (article 71(5) of the Russian Commercial Procedure Code), and nor will it release the party that is relying on such opinion to substantiate that party's claims or objections from the obligation to prove same (article 65(1) of the Commercial Procedure Code).
Accordingly, if the other party has objections regarding the existence of a force majeure, this will entail an obligation on the holder of the opinion to present other admissible evidence to the court.
Help from your adviser
Pepeliaev Group’s lawyers are ready to provide comprehensive legal support to companies and individual entrepreneurs on matters related to an assessment of the circumstances (facts) when specific obligations are fulfilled and to develop a legal position with respect to the most prudent behaviour taking account of the situation.We are also ready to provide other legal support, including in the context of settling disputes and pre-trial dispute resolution, during negotiations with contracting parties, in drafting agreements during the crisis, within proceedings in commercial and courts of all levels. We will also provide recommendations on selecting optimal business solutions for any commercial and corporate law matters.
[1] Resolution No. 7-2 of the CCI of Russia dated 24 June 2021
[2] Clause 1 of section IV of Minutes No. 3 of the meeting of the Government Committee on Enhancing the Sustainable Development of the Russian Economy.
[3] Letter No. 02v/0241 of the CCI of Russia ”On the Guidelines for the issuance by chambers of commerce and industry of opinions regarding force-majeure circumstances under contracts concluded by Russian business enterprises” dated 27 March 2020.
[4] https://tpprf.ru/ru/news/tpp-rf-eksperty-obsudili-voprosy-svidetelstvovaniya-obstoyatelstv-nepreodolimoy-sily-v-ramkakh-vnutr-i419837/
[5] The CCI of Russia certifies force-majeure circumstances in accordance with the conditions of foreign trade transactions and international treaties of the Russian Federation (article 15(3)(n) of Russian Law No. 5340-1 “On chambers of commerce and industry of the Russian Federation” dated 7 July 1993).
[6] The above deadline can be extended further to a decision of the head of the authorised chamber of commerce and industry, but by no more than 10 business days.
At present, the CCI of Russia has, in conjunction with the governmental agencies concerned, developed a draft law authorising the CCI of Russia to determine which chambers of commerce and industry will certify force-majeure circumstances that arose during the performance of contracts concluded among Russian business enterprises and to establish the procedure for such chambers to issue relevant opinions[4].