In process of effecting of foreign economic activity companies sometimes face unconscientious foreign counterparties which refuse to fulfil their obligations under the contract properly.
The result can lead not only to the loss of profit expected by the company when signing the contract, but also to sanctions, applied to the company by the state authorities.
In this case we are talking about the penalty stipulated by the Law of Ukraine "About the procedure of settling payments in foreign currency", which for our convenience will be further referred to as "Law".
According to the articles 1 and 2 of the Law:
- Income of residents in foreign currency is to be remitted to foreign currency accounts in authorized banks within the terms of payment indicated in contracts, but no later than 180 calendar days from the date of customs clearance (issuing of export cargo customs declaration) of goods which are exported, and in the case of export of services, intellectual property rights - from the date of signing of act or other document that certifies the execution of works, provision of services, export of intellectual property rights. For exceeding of the indicated terms it is required the conclusion of the central executive body that implements the state policy in the field of economic development.
- for import operations of residents effected with deferred delivery terms, when such delay exceeds 180 calendar days from the date of the advance payment or the date when the bill (promissory note) was drawn in favor of the supplier of goods (works, services) which are imported, the conclusion of the central executive body that implements the state policy in the field of economic development is also necessary.
At the same time, the National Bank of Ukraine has the right to settle other terms of payments, than indicated in points 1 and 2 of the Law for the term up to 6 month. Nowadays according to the Decision of the National Bank of Ukraine №116 dd. 14.05.2013, the payment settlements of transactions indicated in Articles 1 and 2 of the Law are to be carried out within a period that does not exceed 90 calendar days.
Responsibility for violation of the terms indicated below is stipulated by the Article 4 of the Law, according to which the violation of terms by the residents indicated in Articles 1 and 2 of the Law, entails the collecting of fines for each day of delay at the rate of 0,3% of the amount of not received income (cost of undelivered goods) in foreign currency converted in the currency of Ukraine according to the currency rate of the National Bank of Ukraine on the day of the appearance of the debt. The total amount of accrued penalty cannot exceed the amount of not received income (cost of undelivered goods).
The only way to avoid the accrual of penalties indicated above is to submit a claim to the foreign counterparty to the International Commercial Arbitration Court or Maritime Arbitration Commission at the Chamber of Commerce and Industry of Ukraine.
Article 4 of the Law stipulates directly that in case of acceptance of the claim of the resident about the recovery from the a non-resident of the debt which arose as a result of non-compliance by the non-resident of terms stipulated in export-import contracts terms and indicated in Articles 1 and 2 of the Law for consideration by the International Commercial Arbitration Court and Maritime Arbitration Commission at the Chamber of Commerce and Industry of Ukraine, the accrual of penalties stops and penalties for violations in this period are not paid.
If the court decides to decline the claim in total or partially, or in case of termination (closing) of legal proceeding or if the claim was left without consideration, the terms stipulated by the Articles 1 and 2 of the Law, renew and penalties for their violation is paid for each day of delay, including the period for which these terms were stopped.
Experts of our company will defend your rights in the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine, will charge the debt from non-resident unconscientious counterparty and will help to avoid sanctions from the state authorities.