On 26 June 2014, Atakas instituted a delictual action in personam against the operator of the coal terminal, Richards Bay Coal Terminal (Pty) Ltd. A considerable time later, in February 2016, the vessel’s owners were joined to the proceedings. Atakas then applied in terms of s.5(1) of Admiralty Jurisdiction Regulation Act2 (AJRA) to join Glencore as the third defendant in the action. Glencore resisted the joinder on the basis that the sale contract between Atakas and Glencore provided that disputes should be referred to arbitration. Clause 17 of the contract read: “[a]ny dispute arising out of in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration (LCIA), which Rules are deemed to be incorporated by reference into this clause”. Glencore contended that cl.17 of the sales contract was an “arbitration agreement”’ as defined in s.1 of the International Arbitration Act3 (IAA) and that, in accordance with Art.8 of IAA, Sch.1, which incorporated the Model Law on International Commercial Arbitration,4 the court should stay those proceedings and refer the parties to arbitration unless it finds that agreement is null and void, inoperative or incapable of being performed.

The KwaZulu-Natal Division of the High Court, exercising its Admiralty jurisdiction, found in favour of Glencore.5 Atakas appealed that decision.