Trevor Wan on Unshackling from Shadows of the Anisminic Orthodoxy: 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 Law, First View, pp. 1 - 27
Published online: October 2024

Abstract: Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, where clashes between legislative and judicial powers unfold in open fora. Recent jurisprudential advancements in the United Kingdom and Singapore demonstrate how judicial approaches to ouster clauses can evolve in the face of constitutional developments. Hong Kong has, however, remained muted while these jurisprudential advancements bear fruit in other parts of the common law world, notwithstanding the fact that its constitutional framework, umpired by the Basic Law, has been in existence for over twenty-five years. This article argues for the need 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 interplay between various ‘macrocontextual’ and ‘microcontextual’ factors, ranging from a localised version of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional right of access to courts, allocation of judicial power, and constitutional supremacy.