ABSTRACT
Rectification being a discretionary remedy, a court has a residual discretion to refuse the remedy because it will serve no purpose, because of delay in bringing the application or if the interests of third parties will be affected. The courts have emphasised on more than one occasion that rectification on the grounds of unilateral mistake is a harsh remedy because it imposes upon the defendant a contract that the defendant did not wish to make. Many construction contracts contain arbitration clauses. It is a matter of construction of a particular arbitration clause as to whether an arbitration clause confers upon an arbitrator appointed thereunder jurisdiction to decide whether a contract should be rectified. It is clear that the courts lean towards construing such clauses as conferring that jurisdiction. An arbitration clause referring to arbitration disputes "arising out of" a contract or "in connection with" a contract confers jurisdiction upon an arbitrator to decide claims for rectification.
