Microcontextual considerations in ouster clause analysis: A comparative study of parallel trends in the United Kingdom and Singapore

• Main Author: CHNG, Kenny
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2022
• Subjects: Asian Studies; Common Law; Constitutional Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/4074; https://doi.org/10.1093/icon/moac078
• Institution: Singapore Management University

The classic legal approach to legislative ouster clauses in the common law was articulated by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission. However, recent developments in both the United Kingdom and Singapore indicate a judicial desire to shift away from that approach towards a more flexible analysis of an ouster clause’s effect, centered on the rule of law. This article highlights the significance of those parallel developments, especially given the starkly differing constitutional contexts shaping the approach to ouster clauses in the two jurisdictions. Capitalizing on these trends, it proposes a comparative assessment of the materiality of various microcontextual considerations in ouster clause analysis in the two jurisdictions—considerations such as the nature of the subject matter and the characteristics of the decision-maker—and inquires into the normative implications in each jurisdiction of these developments in ouster clause doctrine.