REGARDING FORCE MAJEURE CIRCUMSTANCES
BALTPOOL UAB, the operator (hereinafter the Operator) of the Energy Exchange (hereinafter the Exchange), with consideration to inquiries concerning the effect of consequences of natural phenomena on the implementation of contracts concluded in the Exchange received from participants of the Exchange, would like to emphasise the following:
- Participants of the Exchange must properly and timely fulfil their obligations under contracts concluded in the Exchange, including the obligation to deliver biomass. Should a participant seller of the Exchange fail to fulfil or properly fulfil its obligations connected with delivery of biomass, the issue of application of contractual civil liability on the participant seller of the Exchange arises and the participant seller must compensate to the participant buyer of the Exchange, which is the other party to the contract, for the loss incurred by the other party and pay the participant buyer the set penalty;
- Pursuant to Article 6.256(4) of the Civil Code of the Republic of Lithuania (hereinafter the Civil Code) and the provisions of documents regulating contracts concluded in the Exchange, a participant of the Exchange (a company or an entrepreneur) that fails to fulfil its contractual obligation to deliver biomass under a contract concluded in the Exchange is in all cases subject to liability for failure to properly fulfil its contractual obligation to deliver biomass if the defaulting supplier of biomass fails to prove that it has not fulfilled or properly fulfilled the biomass delivery obligation due to force majeure;
- Pursuant to Article 6.212 of the Civil Code and clause 7.4.1 of the Energy Exchange Regulation (hereinafter the Regulation), participants of the Exchange shall be exempt from liability for failure to fulfil (properly fulfil) a contract concluded in the Exchange if they are able to prove that they have not fulfilled (have improperly fulfilled) the contract due to force majeure circumstances;
- Not all natural phenomena whose consequences interfere with the fulfilment of the obligation to supply biomass may be viewed as force majeure Force majeure circumstances shall include circumstances that could not have been foreseen or avoided or eliminated by any means and that satisfy all the characteristics listed below:
- The party that infringed the contract could not control or reasonably foresee such circumstances at the time of conclusion of the contract;
- The party that infringed the contract was unable to prevent the appearance of such circumstances or the consequences of such circumstances.
- Pursuant to clause 3 of the Rules of Exemption from Liability on Appearance of Force Majeure Circumstances approved by Resolution No. 840 dated 15 July 1996 of the Government of the Republic of Lithuania, force majeure circumstances may be provoked by the following:
“3.1. War (either declared or undeclared), civil war, uprisings and revolutions, piracy, sabotage;
3.2. Natural disasters: violent storms, cyclones, earthquakes, sea or river floods, lightning strikes;
3.3. Explosions, fires, destruction of machinery, production buildings and/or any (or all) of their internal communications;
3.4. Boycotts, strikes, lockouts, slowdown as a form of strike, occupation of production or administrative buildings and termination of work at the company of the party that requests exemption from obligations;
3.5. Lawful and/or unlawful actions of state authorities (with the exclusion of actions, which, based on the other provisions of the contract, are taken by the party that requests exemption from obligations and with the exclusion of actions listed in clause 4 of these rules);
3.6. Other types of force majeure.”
- The participant of the Exchange that is unable to deliver biomass due to force majeure circumstances must notify the other party to the contract and the Operator about such obstacles and their effect on the fulfilment of contractual obligations as soon as possible. Grounds for exemption from liability shall appear from the moment the respective obstacle appears or, if the obstacle has not been communicated timely, from the moment notice is given. A defaulting party that fails to give timely notice shall become partially liable for compensating for loss that otherwise could have been prevented;
- The duty to prove that the inability to fulfil (properly fulfil) the obligation to supply biomass has resulted from force majeure circumstances shall be the duty of the supplier of biomass and this duty must be fulfilled according to the procedure prescribed by legal acts;
- Pursuant to the Description of the Procedure for Issuing Certificates Certifying Force Majeure Circumstances approved by Resolution No. 222 dated 13 March 1997 of the Government of the Republic of Lithuania, certificates certifying force majeure circumstances shall be issued, according to their respective service zones, by chambers of commerce, industries and crafts of Vilnius, Kaunas, Klaipėda, Šiauliai and Panevėžys (hereinafter the chamber). The chamber must be provided with the documents and information required for issuing the respective certificate as specified in the aforementioned description.
- Rules of Exemption from Liability on Appearance of Force Majeure Circumstances;
- Description of the Procedure for Issuing Certificates Certifying Force Majeure Circumstances.