Mobilization of force majeure

Mobilization of force majeure



The Ministry of Finance intends to recognize mobilization as a force majeure event in the execution of government contracts. Such a rule will allow customers and suppliers to adjust the essential terms of contracts and eliminate the risk of entering the register of unscrupulous companies. So far, "internal circumstances", unlike external ones, are not considered force majeure, and the existing mechanisms for adjusting contracts are ineffective due to the resistance of customers. The business community supports the department’s initiative: the topic of the impossibility of fulfilling part of the obligations under the new conditions was discussed at a meeting with First Deputy Prime Minister Andrei Belousov and has already been included in the first package of measures to address the “mobilization” problems that have arisen in business.

The Ministry of Finance published on regulation.gov.ru a draft government decree allowing mobilization in the Russian Federation to be recognized as a force majeure circumstance within the framework of the application of the law on public procurement (FZ-44). As a result, customers and suppliers will be able to change the essential terms of contracts concluded to meet federal needs. In addition, after the adoption of the document, companies will not be included in the register of unscrupulous suppliers if they could not fulfill their obligations properly due to mobilization. In this case, they will also be charged penalties. The Ministry of Finance recommends that local authorities also ensure the possibility of adjusting regional and municipal contracts due to mobilization.

The Ministry of Finance explained to Kommersant that the amendments will apply to both partial and general mobilization. They add that the contract, by agreement of the parties, can be changed based on the decision of the government. If it is impossible to further fulfill the contract, it can also be terminated unilaterally at the initiative of one of the parties to the contract. “It is important to keep in mind that the mobilization of the IP does not automatically mean the impossibility of fulfilling the contract, since the contract may continue to be executed, including by employees hired by the IP,” the ministry added.

Let us explain that the Chamber of Commerce and Industry (CCI) is engaged in issuing certificates of force majeure, but now we are talking only about foreign trade transactions and international treaties. As Elena Dybova, vice-president of the Chamber of Commerce and Industry, explained to Kommersant, the Civil Code does not contain a rule that would allow considering internal circumstances as force majeure. “Until now, entrepreneurs had a formal opportunity to terminate the contract without consequences through the Federal Antimonopoly Service, but in practice this mechanism turned out to be inoperative: customers did not agree to change the terms and termination of contracts, and suppliers were threatened with harsh sanctions for unilateral refusal,” she explains. Meanwhile, the recruitment of employees in the framework of partial mobilization has already affected the ability to fulfill contracts. For example, in the case of mobilization of an employee with a unique license, the enterprise can no longer fulfill obligations. As practice has shown, agricultural enterprises and small processing industries are especially affected by what is happening.

Amendments in the field of contractual relations are part of the first package of government measures to solve business problems due to partial mobilization - and the authors of the project in the explanatory note refer to the corresponding order of First Deputy Prime Minister Andrei Belousov. According to the minutes of the meeting on these topics (Kommersant has it), the instructions also concern the possibility for servicemen to remain business owners during mobilization, while the law "On the Status of Servicemen" directly prohibits this. At the same time, the Ministry of Justice was instructed to work out the possibility of simplifying the procedure for transferring cases during mobilization and when changing the director, the Ministry of Defense - to prepare a rule on a two-week delay to complete such procedures. The Ministry of Labor should develop a special procedure for the dismissal of employees of companies, the Ministry of Finance and the Ministry of Economy - rules for freezing tax and other mandatory payments. All decisions based on the results of the meeting should be taken this week (see also Kommersant of October 3).

Diana Galieva, Evgenia Kryuchkova



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