Power outages and force majeure: why a Chamber of Commerce certificate is not enough
A Chamber of Commerce certificate is evidence, not an indulgence. The court looks at the contract, the notice to the counterparty and the causal link with the specific obligation.
What the courts say
Force majeure is an extraordinary and unavoidable circumstance that objectively makes performance impossible (Article 617 of the Civil Code, Article 218(2) of the Commercial Code, Article 14-1 of the Law "On Chambers of Commerce and Industry in Ukraine"). The power-limit schedules that applied to business in all regions on 17 October do not by themselves release anyone from liability. According to the Supreme Court's case-law digest:
- martial law alone does not prove force majeure: a causal link with the inability to perform this specific obligation is needed, and the burden of proof lies on the breaching party (Commercial Cassation Court, cases No. 910/8580/22, No. 910/13000/22, No. 906/540/22);
- a Chamber certificate is assessed together with other evidence (Joint Chamber, No. 908/2287/17); in case No. 910/1345/24 a certificate describing shelling, grid failures and outages was accepted as proper evidence, but as evidence, not as automatic release;
- a late certificate does not in itself deprive a party of the right to invoke force majeure unless the contract provides for such a consequence; what matters is timely notice to the counterparty (Joint Chamber, No. 905/541/16);
- lack of funds and hryvnia devaluation do not release from obligations (No. 912/3323/20, No. 910/8580/22); in case No. 910/13000/22 the court reduced the penalty by 80% but did not release the party from the debt.
When force majeure is not enough
Force majeure is about a temporary inability to perform a specific contract. If disruptions last for weeks and payments do not hold, the problem becomes structural. The Bankruptcy Code has a book "Preventive restructuring" (Law No. 3985-IX, in force since 1 January 2025): the plan is agreed with creditors before bankruptcy, cannot give a creditor less than in liquidation, and protective measures last no more than 6 months. According to a Mind column (14 October), about 15 companies have used it, because business usually turns to it only after a default.
In my view, the main mistake is postponing talks with creditors until arrears have piled up.
What to do in practice
- Record every disruption. Schedules, operator notices, downtime reports, correspondence with counterparties.
- Notify the counterparty in writing and within the contractual period, even if the certificate comes later.
- Check the contract: what it says about force majeure and which body must issue confirmation.
- Do not confuse the instruments. Force majeure (Article 617 of the Civil Code) and a material change of circumstances (Article 652) have different conditions.
- Negotiate with creditors before default and assess preventive restructuring.