Force majeure and martial law in Ukraine

Introduction

Despite the ongoing war and the martial law regime in Ukraine, commercial relations continue. Ukrainian businesses are still operating, supplying goods, providing services, and entering into new contracts, including with foreign partners. However, many foreign companies are reluctant to engage with Ukrainian counterparties. One of the main reasons is the concern that martial law in Ukraine may serve as a universal justification for any non-performance of contractual obligations, since war is considered an automatic force majeure
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This perception, however, is not entirely accurate. While it is true that the Ukrainian Chamber of Commerce and Industry has simplified the procedure for certifying force majeure following the introduction of martial law, this does not mean that any failure to perform is automatically excused by the war.

Force Majeure Under Ukrainian Law

Under Ukrainian law Force majeure is defined as extraordinary and unavoidable circumstances that prevent the performance of obligations, including natural disasters, wars, terrorist acts, epidemics, and other unforeseeable events. The law specifies a broad range of such circumstances, encompassing not only natural disasters but also socio-political events that significantly complicate or render impossible the performance of contractual obligations (part 2 of Article 14-1 of the Law of Ukraine «On Chambers of Commerce and Industry in Ukraine»).

Before the introduction of martial law in February 2022, a party unable to perform its obligations due to force majeure was required first to notify the counterparty of the impossibility of performance as soon as possible. Thereafter the party could apply to the Chamber of Commerce and Industry of Ukraine to obtain an official certificate certifying force majeure. This certificate is an official document issued by the Chamber of Commerce and Industry to confirm the occurrence of force majeure circumstances, serving as one of the pieces of evidence but not a mandatory prerequisite for invoking force majeure.

The Simplified Procedure: What Changed After 24 February 2022

Following the introduction of martial law on 24 February 2022, the Chamber of Commerce, taking into account the extremely difficult situation faced by the country, decided to simplify this procedure. The main goal was to relieve businesses of the obligation to apply to the Chamber and prepare a package of documents during the period of martial law.
By letter of the Chamber of Commerce dated 28 February 2022 No. 2024/02.0-7.1, the military aggression of the Russian Federation against Ukraine, which served as the basis for the introduction of martial law from 5 hours 30 minutes on 24 February 2022 for a period of 30 days, was recognised as a force majeure (circumstance of irresistible force) for the entire period until its official termination. This decision of the Chamber is of a general nature for all persons concerned and does not require the issuance of a separate individual certificate to certify these circumstances.

Therefore, if a Ukrainian counterparty breaches its obligations to a foreign due to military actions, it is entitled to attach a printed copy of the Chamber's general letter to its notice of force majeure. It does not need to obtain an individual certificate for each contract. At the same time, the right to obtain an individual certificate remains available.

War Alone Is Not an Automatic Excuse

However if a Ukrainian partner sends a force majeure notice with a printed copy of the Chamber's general letter, it is not necessary to assume that this automatically excuses their non-performance. The letter alone is not conclusive proof. You are entitled to ask for additional evidence demonstrating how the war specifically prevented performance of that particular obligation. 

In other terms, the mere introduction of martial law in the country is not an indisputable ground for exemption from liability. Such a circumstance will constitute force majeure only if a causal link is proven between the specific circumstances and the impossibility of performing the obligation. In other words, it must be proven that the military actions themselves became the obstacle to the performance of the contractual terms.

What Ukrainian Courts Require: Lessons from Recent Case Law

Court practice clearly demonstrates that the mere existence of war does not automatically trigger force majeure. A party must still comply with the requirements set forth by law. The burden of proof lies exclusively with the party that has breached its obligation. That party must provide convincing evidence confirming both the existence of force majeure and its direct impact on performance. The relevant legal criteria are universal, but their application always requires an analysis of the specific circumstances.

For example, in its ruling of 31 August 2022 in case No. 910/15264/21, the Supreme Court of Ukraine added an important clarification: there must be a direct causal link between the force majeure circumstances and the impossibility of performing the obligation. This means that a party cannot rely on force majeure if the non-performance occurred for other reasons, such as its own negligence or commercial risks that should have been foreseen and accounted for when entering into the contract.

Another significant aspect of the Supreme Court's practice is that the mere submission of evidence by a party in support of force majeure is not sufficient for automatic recognition of its claim. One of the most recent examples of judicial practice concerning force majeure and its impact on contractual obligations is the new ruling of the Supreme Court, rendered by the panel of judges of the Cassation Commercial Court on 18 February 2025 in case No. 910/6519/24.

In this decision, the court examined a situation where one party to a contract invoked force majeure as grounds for non-performance. The court carefully analysed the evidence submitted, including documents confirming the occurrence of force majeure circumstances, their duration, and the direct causal link with the impossibility of performing the contract.

An important aspect of the ruling was that the court drew attention to the necessity of timely notification of the other party about the occurrence of force majeure, as well as to whether the party had taken all possible measures to mitigate the consequences of such circumstances. One of the key conclusions of this decision is that force majeure is not an automatic ground for exemption from performance. The court emphasised that the party invoking force majeure must prove not only the fact of its occurrence but also that these circumstances objectively made performance of the contract impossible.

Checklist: What a Valid Force Majeure Claim in Ukraine Requires

Consequently, when a Ukrainian counterparty claims force majeure, the following elements should be present:

• Timely notification of the counterparty (usually within a reasonable time after the force majeure events occur);
• A direct causal link between the military aggression and the impossibility of performing the specific obligation (as opposed to other causes, such as the party's own negligence or commercial risks);
•  Evidence that the party took all reasonable measures to mitigate the consequences of the force majeure circumstances;
•  Evidence that performance of the obligation became objectively impossible, not merely more difficult, more expensive, or less profitable.

Conclusions

Thus, the fact that the Chamber of Commerce and Industry of Ukraine has recognised martial law as a force majeure circumstance does not guarantee the absence of disputes. It means that Ukrainian law does not give local counterparties a blank cheque to walk away from their contractual obligations simply because there is a war. Force majeure remains a narrow exception, not a general excuse. 

Studio Legale de Capoa