Date of publication: 19 November 2025
Marina Riashchenko, Attorney at Law, Counsel
Oleksandr Denysenko, Attorney at Law, Counsel
Source: Yurydychna Gazeta
The category of force majeure has been one of the most frequently mentioned in contractual and judicial practice in recent years, especially since the start of full-scale war in Ukraine. Its role has changed significantly: whereas previously references to force majeure were mainly formal in nature, this institution has now become a tool for maintaining the balance of interests between the parties to a contract in conditions of unpredictable socio-economic and military upheaval.
The Legal Essence of Force Majeure
Force majeure circumstances (circumstances of insurmountable force) are a legal category designed to release a party to an obligation from liability for its non-performance or improper performance if it is proven that this was the result of an event that the party could not have foreseen or prevented.
The concept of force majeure is based on the principles of good faith and fairness in contractual legal relations, and its purpose is not to release the debtor from the obligation itself, but to temporarily remove liability due to the impossibility of its fulfilment as a result of objective factors beyond its control.
Key Provisions and Role of the Chamber of Commerce and Industry in Confirming Force Majeure
The legal regulation of force majeure in Ukraine is complex. The basic provisions are enshrined in Article 617 of the Civil Code of Ukraine, which stipulates that a person who has breached an obligation is exempt from liability if they prove that the breach was the result of force majeure. In addition, the Law of Ukraine “On Chambers of Commerce and Industry in Ukraine” is of great importance, in particular Article 14-1, which grants the Chamber of Commerce and Industry of Ukraine and its authorised regional chambers of commerce and industry the power to certify the occurrence and effect of force majeure circumstances by issuing a corresponding certificate.
Under current legislation, force majeure circumstances are understood to be extraordinary and unavoidable circumstances that objectively made it impossible to fulfil an obligation. In this case, “extraordinary” means that the conscientious party to the obligation, acting with a sufficient degree of prudence, could not have expected or foreseen the occurrence of such circumstances. ‘Inevitability’ means that force majeure in principle makes it impossible to perform the obligation, regardless of the measures that the party to the obligation has taken or could have taken to avoid breaching the obligation.
Force Majeure in Contracts
When concluding a contract, the parties specify which circumstances will be considered force majeure by them, as well as what they will consider to be proper and sufficient evidence of the occurrence of such circumstances. As a rule, such evidence, as agreed by the parties to the contract, is a certificate from the relevant chamber of commerce and industry.
In practice, this construct has several key functions. First of all, it performs a compensatory and protective function aimed at restoring the balance of rights and obligations of the parties when one of them is objectively unable to perform the contract. Force majeure also plays a preventive role, as it encourages the parties to anticipate risks in contracts and to properly regulate the procedure for action in the event of extraordinary events.
How Courts Interpret the Concepts of Extraordinary and Unavoidable Circumstances in 2025
When a dispute arises over the performance of contractual obligations, it is often insufficient to refer to the occurrence of force majeure circumstances, even if confirmed by a relevant certificate. As judicial practice shows, a party must not only provide formal confirmation of the occurrence of force majeure circumstances with a certificate from the Chamber of Commerce and Industry, but also carefully prove the causal link between the event and the impossibility of performing a specific contractual obligation.
In previous years, court practice showed a significant tendency to recognise the CCI certificate as sufficient evidence of the occurrence of force majeure circumstances. Under Ukrainian law (in particular, Article 14-1 of the Law of Ukraine “On Chambers of Commerce and Industry in Ukraine”), it is the CCI that is authorised to certify facts of force majeure by issuing a certificate. In this context, commercial courts have noted that the issuance of a CCI certificate creates a strong, albeit not automatic, basis for recognising force majeure. Even before 2022, a number of decisions analysed the certificate as a key element of evidence.
At the same time, in subsequent practice, the Supreme Court has repeatedly emphasised that the existence of a CCI certificate does not in itself exempt a party from liability if that party has not proven that it was precisely the circumstances of force majeure that made the performance of its obligations impossible.
After the start of the full-scale invasion, the circumstance most often referred to by the parties in the context of the impossibility of fulfilling their contractual obligations was the armed aggression of the russian federation and the related consequences: the occupation of Ukrainian territory, active hostilities, the closure of transport routes, hostile shelling and destruction of property or production facilities, etc.
Supreme Court Practice on the Application of Force Majeure
In 2025, the Supreme Court’s practice on the application of force majeure (circumstances of insurmountable force) is becoming increasingly defined. The court confirms that to be released from liability for failure to perform an obligation under a contract, it is not sufficient to simply indicate the occurrence of an unforeseeable event – the party invoking force majeure must duly prove both the fact of the circumstance and its direct impact on the specific performance of the obligation. In practical terms, this means that a party relying on a CCI certificate must convince the court that it was precisely these circumstances, confirmed by the certificate, that made it impossible to perform its obligations under a specific contract, and that it complied with the procedures for notifying the counterparty and took measures to minimise the consequences. In other words, the CCI certificate opens the way for argumentation, but does not replace evidentiary analysis. Court practice in 2023–2025 shows that the model of assessment “certificate” + “evidence” + “assessment of circumstances” has become predominant.
Given the practice of the Supreme Court in 2025, courts most often overturned the decisions of the courts of first and appellate instances due to incorrect interpretation of the principle of inevitability. In this context, the Supreme Court pointed out that the courts had disregarded the partial performance of the obligation, whereas the principle of inevitability makes it impossible to perform the obligation in principle. Let us consider several interesting conclusions of the Supreme Court in cases concerning the interpretation of force majeure.
Significant Cases of the Supreme Court in 2025 Regarding the Interpretation of Force Majeure
In case No. 916/4411/23, the Supreme Court, in its ruling of 30 September 2025, referred the case to the court of appeal for a new trial. The Supreme Court called the conclusion of the court of appeal regarding the existence of force majeure circumstances in connection with the occupation of the Skadovsk district of the Kherson region premature. The Supreme Court pointed out that it was impossible to determine from the text of the court of appeal’s ruling what specific factual circumstances in this particular case gave grounds for concluding that there was a causal link; the court of appeal did not investigate and did not indicate in its ruling whether the fact of the occupation of the Skadovsk district of the Kherson region actually led to the complete impossibility of the defendants to carry out economic activities, and therefore made it impossible for the defendants to fulfil their obligations under the loan agreement. In particular, the court did not examine the issue of the defendants’ production capacity in other unoccupied territories, the continuation/cessation of the defendants’ economic activity in general after the occupation of the Skadovsk district of the Kherson region, and the defendants’ sources and resources that would enable them to fulfil their obligations under the loan agreement.
In its decision in case No. 922/1290/24 of 4 March 2025, the Supreme Court noted that the existence of force majeure cannot be based solely on a general reference to martial law or hostilities. The court found that the debtor in the case had proven the existence of a certificate from the Chamber of Commerce and Industry, timely notification of the counterparty, orders to suspend activities, and that the place of performance of obligations was in the combat zone (the town of Sharivka and the village of Zabrody in the Bohodukhiv district of the Kharkiv region) – all of which made it possible to conclude that force majeure existed.
In its ruling of 21 May 2025 in case No. 913/333/24, the Supreme Court stated that the courts of previous instances proceeded from the fact that the mere imposition of seizures on the assets of an agricultural enterprise operating in the public sphere could not be considered an unforeseeable or extraordinary circumstance within the meaning of Article 617 of the Civil Code of Ukraine. Such risks objectively fall within the scope of the business entity itself and, taking into account normal business practices, are part of its entrepreneurial activity. The Supreme Court agreed with this position of the courts of first and appellate instances, stating that the defendant’s breach of the terms of the supply contract was directly caused by the peculiarities of its own economic activity, which, accordingly, excludes the existence of objective grounds for exemption from liability under Article 617 of the Civil Code of Ukraine.
In case No. 910/2003/24, the court of first instance concluded that the defendant had confirmed with a sufficient degree of certainty the existence of force majeure circumstances which, starting from 1 January 2024, made it impossible for the latter (as the contractor) to fulfil its obligations under the contract, and recognised the claims as not subject to satisfaction. Although the court of appeal agreed with these conclusions, it nevertheless satisfied the claim in part, ordering the defendant to pay interest on the use of the advance payment, stating that the contractor’s fault under the contract was not necessary for the recovery of such funds. The Supreme Court, in its ruling of 18 September 2025, overturned the ruling of the court of appeal and upheld the decision of the local court, stating that the amount of interest claimed by the plaintiff was a separate type of liability in accordance with the contractual settlement between the parties, and therefore, the recovery by the court of appeal of interest for the use of advance payment funds in the absence of any fault on the part of the defendant contradicts the terms of the agreement concluded by the parties and the above-mentioned provisions of law (regarding force majeure).
The court also draws attention to procedural aspects. For example, the notification of the other party about the occurrence of force majeure circumstances must be timely, otherwise it may become a ground for refusing to apply the exemption. In case No. 910/6519/24 of 18 February 2025, the Supreme Court emphasised that the party must take measures to minimise damage – merely referring to force majeure without taking adequate action does not automatically result in exemption.
How Not to Lose the Right to Exemption from Liability for Force Majeure: Advice for Businesses
The Supreme Court’s current interpretation of force majeure is aimed at maintaining a balance between formal legal certainty and flexibility in law enforcement. Force majeure ceases to be a mechanical excuse and becomes an instrument of legal balance – a kind of test of the parties’ good faith in crises.
The key practical guidelines formulated by the Supreme Court can be summarised as follows: the circumstances must be extraordinary, beyond the control of the party, and unavoidable; the party must prove the impact of such circumstances on the performance of a specific obligation; it must follow the notification procedure and take measures to minimise the consequences; finally, a printed certificate or letter from the Chamber of Commerce and Industry is important but not sufficient evidence.
For legal practice, this means that the contract must contain clear provisions on force majeure: a list, notification mechanisms, deadlines, and a regime for minimising losses. In the event of a dispute, the debtor party must be prepared to provide a body of evidence: letters, acts, orders, CCI documents, logistics data, and factual confirmation that it was precisely due to the circumstances specified that performance became impossible at this place and during this period. Court practice in 2025 shows that the automatic application of force majeure is a thing of the past; today, it is all about a careful evidence strategy and individual analysis of each obligation.
