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

Publication Type

Journal Article

Publication Date

11-2022

Abstract

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.

Discipline

Asian Studies | Common Law | Constitutional Law

Research Areas

Asian and Comparative Legal Systems

Publication

International Journal of Constitutional Law

Volume

20

Issue

3

First Page

1257

Last Page

1280

ISSN

1474-2640

Identifier

10.1093/icon/moac078

Publisher

Oxford University Press

Additional URL

https://doi.org/10.1093/icon/moac078

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