Reconceptualising Approaches to Ouster Clauses in Hong Kong (AsJCL)

“Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong“
Trevor Wan
Asian Journal of Comparative Regulation, First View, pp. 1 – 27
Printed on-line: October 2024

Summary: Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, the place clashes between legislative and judicial powers unfold in open fora. Current jurisprudential developments in the UK and Singapore reveal how judicial approaches to ouster clauses can evolve within the face of constitutional developments. Hong Kong has, nevertheless, remained muted whereas these jurisprudential developments bear fruit in different components of the frequent regulation world, however the truth that its constitutional framework, umpired by the Primary Regulation, has been in existence for over twenty-five years. This text argues for the necessity to reconceptualise approaches to ouster clauses in Hong Kong, grounded firmly in its post-1997 constitutional framework. Drawing on comparative jurisprudence, it presents a spectrum of approaches, animated by the dynamic interaction between numerous ‘macrocontextual’ and ‘microcontextual’ components, starting from a localised model of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional proper of entry to courts, allocation of judicial energy, and constitutional supremacy.