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Force majeure for entrepreneurs and other solutions to problems

25 March 2020
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In connection with the introduction of the State of Emergency in Kazakhstan, which restricts the observance of business contracts, the Chamber of International Commerce of Kazakhstan (CICK) receives daily numerous appeals of entrepreneurs on issues of witnessing force majeure.

Recognition of a force majeure may offset liability and avoid penalties for failure to fulfill obligations under the contract.

From March 16 to March 24, the CICK received more than 1.200 calls from entrepreneurs throughout the country with questions about the evidence of force majeure.

A large number of consultations were provided on the lease (233 consultations), disruption of contractual obligations (66 consultations), credit relief (53 consultations). The absolute majority of entrepreneurs were interested in what package of documents is required to submit an application.

Speaking about written applications, during these 9 days 624 applications of business entities were received, for which 19 certificates, 37 refusals and 66 written explanations were issued. 502 applications are under consideration.

The main reasons for refusals to certify force majeure circumstances are as follows:

- Lack of contractual relations between the parties (the parties agreed orally);

- lack of a causal link between the violation of the obligation and the restrictions imposed during the State of Emergency;

- the fact of violation of obligations before the State of Emergency was introduced;

- fall in demand for products, works and services in the absence of an actual ban on certain activities;

- change in the exchange rate of the national currency.

Written explanations are provided in cases when entrepreneurs apply for a certificate without presenting documents with a request to recognize the situation as a force majeure as a whole, as well as in cases when the actual breach of obligations under the contract by entrepreneurs has not yet been committed (the term of obligations has not yet come, and entrepreneurs applied for a certificate in advance).

What are the other solutions?

If your activity is suspended by an act of a state official or the demand for services has decreased due to the ban on entering the country, it is recommended to apply in writing to your counterparty to freeze the fulfillment of obligations for the term of the State of emergency, to pay the rent in installments, to reduce the rent payment, to postpone the fulfillment of obligations or not to impose penalties for violation of obligations under the agreement, etc.

You should understand that even with a Force Majeure Certificate, the counterparty may not release you from your obligations, and the court will consider this certificate only as one of the evidence in the dispute.

The certificate of occurrence of force majeure circumstances is not the basis for unconditional release from liability.

But for violations of foreign trade transactions due to the occurrence of force majeure circumstances, obtaining a Force Majeure Certificate is mandatory!

Templates for notifications of counterparties can be downloaded here:

- notice of exemption from liability;

- notice of termination of obligations under the contract.

To receive the Force Majeure Certificate you need to write an application in any form with the following documents attached:

- Certificate of registration/re-registration of a legal entity (or a certificate of IE registration);

- scan version of the contract, specifications, annexes, additional agreements to the contract;

- scan version of the documents issued by the competent authorities on the territory of Kazakhstan and confirming impossibility to fulfill contractual obligations (these may include the Presidential Decree on the introduction of the state of emergency, resolutions of the Chief State Sanitary Doctor of Kazakhstan or regions, decisions of the headquarters);

- in the event that force majeure has occurred outside Kazakhstan, an official document issued by the relevant body of the State in whose territory the force majeure has occurred is also required.

All documents should be sent by e-mail to online@atameken.kz.

If all documents are available, the CICK will consider the application within 5 working days for the period of the State of Emergency. The Force Majeure Certificate during the State of Emergency is issued free of charge.

For detailed information, please contact the Chamber of International Commerce of Kazakhstan + 7 7172 27 90 54; 27 90 55; 27 90 56.

You can write a message to WhatsApp of the CICK employees, who currently work in the emergency mode, working above the norm to provide advice to all entrepreneurs.

Please write and contact:

Beeline

Omirzhan   8 705 395 31 23

Caster         8 705 852 25 05

Zhadyra      8 747 254 67 72

Zhanar        8 705 564 19 26

Madina       8 777 499 49 92

Ainur                   8 776 021 08 04

Assel          8 776 993 95 82

Aigerim      8 771 691 30 88

 

Tele2, Altel.

Aigerim      8 707 909 01 52

Nuriya        8 707 490 32 29

Gaukhar     8 747 793 32 53

Adlet          8 708 682 72 45

Laura        8 707 705 82 02

 Ibragim      8 747 470 49 25

 Albina        8 700 299 29 42

 

Activ, Kcell

 Sandugash   +7 778 563 83 95

 Zarina         8 778 867 32 69

 Yelnarр      8 775 530 16 94

 Abai          8 778 185 24 64

 Nurbolat     8 778 758 07 91


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