1.  In respect of existing business-to-business (B2B) agreements that do not contain an explicit price adjustment clause:
    1. a. Is the supplier permitted to unilaterally increase prices (or does it have other rights regarding price increases)? If so, to what extent?
    2. b. Do (extreme) price increases give the customer the right to terminate the agreement? If so, are there any specific rules or regulations to comply with?
  2.  In respect of future B2B agreements:
    1. a. Is it permissible to include an explicit price adjustment clause in the agreement? If so, what price adjustment clauses typically exist in your jurisdiction?
    2. b. What legal issues need to be considered (if any) to ensure that the price adjustment clause is enforceable? Is there any key legislation or case law that parties should be aware of regarding enforceability of price adjustment clauses in your jurisdiction?
    3. c. Are there any other issues that parties should consider when formulating a price adjustment clause (e.g. any sector-specific regulation)?
  3. Do any additional considerations or rules apply to the inclusion of price adjustment clauses in business-to-consumer (B2C) agreements?

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Ukraine
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1. In respect of existing business-to-business (B2B) agreements that do not contain an explicit price adjustment clause:

a. Is the supplier permitted to unilaterally increase prices (or does it have other rights regarding price increases)? If so, to what extent?

No, the supplier is not entitled to unilaterally increase prices without having a specific clause in the agreement. As price is a material term of the commercial contract, it can only be changed by the agreement of the parties.  

b. Do (extreme) price increases give the customer the right to terminate the agreement? If so, are there any specific rules or regulations to comply with?

Unless a price adjustment clause is included in the contract, price increases can only be implemented with the mutual agreement of the parties. Thus, if both parties consent to such price increase, they shall have no grounds to terminate the agreement.

2. In respect of future B2B agreements:

a. Is it permissible to include an explicit price adjustment clause in the agreement? If so, what price adjustment clauses typically exist in your jurisdiction?

Yes, Ukrainian legislation does not prevent the parties from including an explicit price adjustment clause in the agreement. For instance, the parties may agree in the contract to additional payments above the established price for products (works, services) of higher quality or for the performance of works within a shorter timeframe than the standard timeframe. Further, it is common practice to include price adjustment clauses with reference to specific factors such as changes in tax rates, fluctuations in foreign currency exchange rates, utilities charges increases, changes in suppliers’ costs etc.

For the agreement to be valid, the parties should agree on the price or have a mechanism in the agreement to determine it. Thus, if a price adjustment clause is included in an agreement, it should include: 

  • a clear and specific mechanism on how the price should be recalculated; 
  • specific reference to circumstances that may trigger such price adjustment; and  
  • a description of the mechanism for documenting the adjustment by the parties (e.g. price adjustment notification, invoice, etc). 

Parties should ensure that the price adjustment clause in their contract complies with key legislation such as the provisions of the Commercial Code, as well as any relevant provisions of the Civil Code. For instance, according to Ukrainian legislation a price change in the contract is not allowed after it has been executed.

c. Are there any other issues that parties should consider when formulating a price adjustment clause (e.g. any sector-specific regulation)?

In Ukraine, public procurement contracts have specific requirements for price adjustment clauses (e.g. there is an exclusive list of grounds for price changes)

3. Do any additional considerations or rules apply to the inclusion of price adjustment clauses in business-to-consumer (B2C) agreements?

Price adjustment clauses in B2C agreements are void if they provide for the possibility to increase the price without giving the consumer the right to terminate the agreement on the ground of such price increase.