| Krylova O.I., Executive Director, Junior Research Fellow in Law at IPE LLC, https://orcid.org/0009-0009-3365-2404 Security in the intellectual dimension: materials of the VI All-Ukrainian scientific and practical conference (October 11, 2024, Kyiv) / compiled by V.S. Kucherenko, editors R.B. Shyshka, N.P. Khrystynchenko. Kyiv: “Lyudmila Publishing House”, 2024. 288 p. (pp. 103-107). |
Generalised theses.
The formation of the institution of a significant change of circumstances in domestic legislation took place on the basis of the use of legal doctrines and principles of different countries of the world, which is quite logical and correct from the point of view of using positive experience in regulating legal relations, harmonization with international legislation. However, currently the practical implementation of the norms of Art. 652 of the Civil Code of Ukraine shows existing gaps, legal uncertainty of a significant change of circumstances, due to which there are frequent cases of abuse by one of the parties to a contractual obligation of its rights to change (terminate) the contract in connection with a significant change of circumstances.
Having significant scientific developments on this issue, extensive practical experience and judicial practice, it is necessary to further adapt the norms of Article 652 of the Civil Code of Ukraine to the modern realities of life, the peculiarities of Ukrainian legislation, specifying the criteria for determining a “material change in circumstances”. They must take into account a wide range of factors and their criteria that can significantly affect the possibility of fulfilling obligations under the contract. Such criteria may include: the influence of external factors (economic crises, natural disasters, etc.); changes in legislation and regulatory conditions (changes in legal regulation, international sanctions); social changes (wars, mass protests, civil conflicts, etc.); technological changes (the introduction of new technologies or the failure of critical technological systems that significantly affect the fulfilment of obligations).
In addition, it is necessary to determine the mechanism for proving the existence of a significant change in circumstances, one of the stages of which is to determine negotiations between the parties. It may include: mandatory notification by one party to the other of the occurrence of circumstances that, in its opinion, are significant; determination of deadlines for response and commencement of negotiations; clear delineation of the rights and obligations of the parties during the negotiation process; the possibility of involving independent legal experts for an objective assessment of the changes; establishment of a mediation procedure or other alternative methods of dispute resolution in the event that negotiations do not lead to consensus.
Thus, improving the legal framework will contribute to a more flexible, objective approach to assessing a significant change in circumstances and balancing the interests of the parties in contractual relations.
