Annotation.
Formulation of requirements for independent professional examination of legal circumstances and their consequences is associated with a number of issues, in particular, of a theoretical and methodological nature. One of the main issues is the development of a theory of competence of an independent professional expert institution, the starting point of which is to determine the requirements under which such an institution is able to perform certain actions (i. e., is competent), in particular, with regard to the organisation and conduct of an expert study to assess compliance with a material change in circumstances that the parties could not foresee when entering into an agreement (contract) and its legal consequences within the meaning of Article 652 of the Civil Code of Ukraine. Despite a certain number of scientific papers devoted to the study of various aspects of the possible implementation of the legal doctrine in practice, it should be noted that the legal literature has not yet formalised the requirements and established a full-fledged definition of the competence of an independent professional expert.
The purpose of the publication is to substantiate the doctrinal basis for the requirements to such a category as the competence to assess compliance with a material change of circumstances which the parties could not foresee when entering into an agreement (contract) and its legal consequences within the meaning of Article 652 of the Civil Code of Ukraine; to analyse practical situations to which attempts have been made to apply the conclusions of chambers of commerce and industry in Ukraine and to find out the reasons for their judicial devaluation.
The object is legal relations arising in the course of independent professional examinations, as well as the circumstances that significantly complicate the fulfilment of obligations under the agreement (contract) for reasons beyond the will, desires and actions of the parties; the subject is the current positive law, the practice of judicial activity and the activities of expert institutions.
The author establishes that the opinions of chambers of commerce and industry in Ukraine on assessing a material change in circumstances which the parties could not foresee when concluding an agreement (contract) and its legal consequences within the meaning of Article 652 of the Civil Code of Ukraine are widely used. The author has clarified the legal conclusions of the court which state that chambers of commerce and industry in Ukraine do not have the authority to provide such conclusions.
The optimal methodological basis for the competence of an independent professional expert to provide an assessment of compliance with a material change in circumstances that the parties could not foresee when concluding an agreement (contract) and its legal consequences within the meaning of Article 652 of the Civil Code of Ukraine may be legal requirements that: 1) are similar to the requirements of international standards, in particular, ISO 9001:2015 (Quality Management Systems), ISO 37001:2016 (Anti-Corruption Management Systems), ISO/IEC 27001:2013 (Information Security Management Systems), EN ISO/IEC 17020: 2012 (Management Systems for Inspection Bodies. Conformity Assessment), as they guarantee the adequacy and controllability of the processes of providing conformity assessment (independent professional expertise), and provide for: 2) the availability of statutory powers to carry out such activities; 3) confirmed professional qualifications and professional competence of experts; 4) voluntary insurance of professional liability risks for damage caused to third parties by the conformity assessment (expert opinion) provided.
