"Nobody knows how the provisions on force majeure caused by the coronavirus will be applied, however, analyzing the existing judicial practice, we can predict exemption from liability under certain circumstances."
Russian legislation has long known such a concept as force majeure, it is enshrined in clause 3 of Art. 401 of the Civil Code of the Russian Federation and refers to a situation in which the party that committed a violation of its obligations is not responsible for this, if such violations were the result of irresistible force circumstances.
The legislative concept of force majeure does not contain a specific list of circumstances that fall under the criterion of force majeure circumstances.
However, the law mentions force majeure in the laws governing various branches of law, therefore, for a more detailed understanding of the force majeure circumstances, you can refer to the following statutory acts:
Basically, in judicial practice, the courts classify “natural phenomena” (earthquakes, floods, etc.), public actions (war, strikes, turmoils, restrictive measures taken by the state) to force majeure circumstances. Such actions should be a direct cause for non-fulfillment of civil obligations of the parties. Resolution of the Eleventh Arbitration Court of Appeal dated 09.10.2019 N 11AP-13830/2019 in case N A55-13848 / 2019, Resolution of the Arbitration Court of the Far Eastern District of 10.01.2018 N F03-4621 / 2017 in case N A59-5255 / 2016
In the letter of the Ministry of Economic Development of the Russian Federation dated 09/08/2009 No. D05-4387, the list of force majeure circumstances has been expanded to include such circumstances as: epidemics, drought, hurricane and other circumstances that violate the usual order of public relations. These events are unpredictable and unavoidable.
• FORCE MAJEURE IN A FOREIGN TRADE TRANSACTION
The actions of the parties in the event of force majeure circumstances during the foreign trade transaction execution (when the counterparty is a foreign company) are regulated by clause 3 of Art. 15 of the Law on the Chamber of Commerce and Industry, according to which the Chamber of Commerce and Industry of Russia issues a Force Majeure Certificate, which confirms force majeure circumstances.
As for the confirmation of force majeure between Russian companies, then in this case you need to contact the Ministry of Emergency Situations, the Ministry of Internal Affairs, the meteorological service, since the Chamber of Commerce and Industry does not issue certificates of force majeure when both companies are Russian.
• FORCE MAJEURE DURING TRANSPORTATION OF GOODS
TRANSPORTATION BY LAND TRANSPORT
A carrier transporting goods by any land mode of transport is not responsible for delayed delivery of goods, damage, etc. if these violations were the result of force majeure circumstances (Art. 36 Charter of automobile and urban land transport). Also, such circumstances include restrictions imposed by government agencies, for example, traffic bans.
TRANSPORTATION BY AIR
The provisions of Art. 120 of the Air Code of the Russian Federation states that the carrier is not liable for improper fulfillment of passengers, baggage, cargo transportation obligations if the failure is caused by force majeure. A separate rule is also devoted to flight delays or changes in other flight conditions by the carrier as a result of restrictive actions of a state authority (Order of the Ministry of Transport of Russia dated June 28, 2007 N 82 (as amended on January 14, 2019).
Our team of practicing lawyers and attorneys monitors current judicial practice, as well as general uncertainty between participants in civil legal relations on existing obligations and can provide you with legal assistance, including remotely, in Moscow, Kemerovo:
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