The court of the first and appellate courts satisfied the claims in part, while refusing the defendant. Courts motivated their position by the lack of desire of both parties to submit the dispute to the arbitral tribunal and the presence of the plaintiff' constitutional right to apply to the commercial court.

However, the board of judges of the Commercial Court of the Supreme Court did not agree with such a decision.

The Supreme Court indicated that the agreement on the transfer of all disputes to the arbitral tribunal was not declared invalid, it is valid and complies with the requirements of the law, and therefore is binding on the parties.

According to Art. 12 of the Commercial code of Ukraine, subordinate to the economic courts, the dispute may be transferred to the parties to the arbitral tribunal, except for disputes regarding the invalidation of acts, as well as disputes arising during the conclusion, modification, termination and performance of economic contracts related to satisfaction of state needs, disputes, provided for in paragraph 4 of part one of this article, and other disputes provided by law. The decision of the arbitral tribunal may be appealed in the manner prescribed by this Code.

At the same time, according to Art. 226 of the Commercial Code, the court leaves the claim without consideration if the parties have entered into an agreement on the transfer of the dispute to an arbitral tribunal or international commercial arbitration, and the defendant not later than the commencement of consideration of the case in substance, but before the submission of the first statement on the substance of the dispute, objections to the decision a dispute in a commercial court, unless the court finds that such an agreement is invalid, has expired or can not be enforced.

Thus, the obligation to comply with the requirements of the arbitration agreement can not be considered a limitation of the plaintiff's right to apply to the court.

The relevant conclusion was made by the Supreme Court on February 5, 2019 in the case № 913/783/17.