In order to ensure courts correct and uniform application of law regulating the credit relationships, the Plenum of the Supreme Court of Ukraine dedicated to the consideration of civil and criminal cases (VSSU) gave the courts a clarification on this matter by means of its Regulation № 5 dated 03.30.2012 (Regulation).

One of the issues raised in the Resolution was about the arbitration clause in the loan agreements.

VSSU, in particular, explained that in case of arbitration clause in a loan agreement (a separate arbitration agreement) existence, a court must take into account the provisions of the Law "On arbitration courts" while resolving the dispute. The mentioned Law prescribes that cases on consumer`s rights protection, including consumers of banking services (credit union) are not an subject to be reviewed by arbitration courts.

Thus, in case of arbitration clause in a loan agreement (a separate arbitration agreement) existence, the abandonment of a consumer`s claim without consideration pursuant to paragraph 6 of Section 207 of the Civil Procedural Code (CPC) is not valid. Such claims are subject to be resolved in court even if there is a decision on such case of an arbitral tribunal, taken outside its jurisdiction.

At the same time VSSU draws attention to the fact that under the provisions of the Law of Ukraine “On protection of consumers” bank is not a consumer.

VSSU also emphasized the fact that an agreement of parties to submit a dispute to an arbitral tribunal is not a waiver of the right to petition the court for protection, but is a way of exercising the right to protect their rights and interests.