Privy Council on Double Actionability and Renvoi in Tort

This post was written by Dr Franziska Arnold-Dwyer, Associate Professor of Law at University College London (UCL).

On 24 November 2025, the Privy Council handed down judgment in Credit Suisse Life (Bermuda) Ltd v Ivanishvili [2025] UKPC 53 in an appeal from the Court of Appeal for Bermuda.

By way of background, it is worth noting that the Privy Council is the final court of appeal for UK overseas territories, Crown dependencies, and those Commonwealth countries – like Bermuda – that have retained the appeal procedure to the Privy Council. The Justices of the Privy Council are identical to the Justices of the UK Supreme Court (which is the highest court in the United Kingdom).

In Credit Suisse, the Privy Council decided an important point of substantive law – that the claimant’s awareness of a representation is not an element of the tort of fraudulent misrepresentation under Bermudian law and English law – but the focus of this note will be on two principles of private international law: the double actionability rule and the doctrine of renvoi.

Facts and Issues

The factual background to the case was, in brief, that, on the advice of Credit Suisse AG (“the Bank”), Mr Ivanishvili transferred cash and other assets amounting to some US$750 million, held on trust, to Credit Suisse Life (Bermuda) Ltd (“CS Life”, a subsidiary of the Bank) in 2011 and 2012 as premiums for two life insurance policies. In 2015, Mr Ivanishvili discovered that his relationship manager, Mr Lescaudron, an employee of the Bank, had been dealing fraudulently with the policy assets. Mr Lescaudron was convicted of criminal offences in Switzerland in 2018. Mr Ivanishvili brought proceedings against CS Life in the Bermudian courts, alleging breach of contract and breach of fiduciary duty in 2017, and fraudulent misrepresentation in 2020.

As regards the fraudulent misrepresentation claim, the issues on the cross-appeal were whether the Bermuda Court of Appeal was right to hold that the misrepresentation claim failed because: (1) Mr Ivanishvili had not pleaded and proved that he had any conscious awareness or understanding of the representations made to him; and/or (2) the claim was subject to the law of Georgia relating to limitation and was brought after the expiry of the three-year limitation period prescribed by Georgian law. It was in this context that the Privy Council examined what system of law applied to the misrepresentation claim [116].

It was common ground between the parties that the place where the acts constituting the alleged tort were committed was Georgia [124]. By recommending investment in the policies, Mr Lescaudron (on behalf of CS Life) impliedly represented to Mr Ivanishvili that the Bank did not intend to manage the policy assets fraudulently [115]. This implied misrepresentation was made at meetings in Georgia in 2011, at which the life insurance policies were proposed [114]. It was also where the misrepresentations were acted on by Mr Ivanishvili by signing documents necessary to enter into the life insurance policies [124].

Double Actionability

At common law, a claim in tort arising from an act done in a foreign country is generally “actionable” only if the act gives rise to liability under both (1) the law of the forum where the claim is brought and (2) the law of the foreign country where the act was done (Boys v Chaplin [1971] AC 356). This is known as the double actionability rule. The Privy Council pointedly noted that it would have been open to either party to invite the Privy Council not to follow the double actionability rule and that instead the court should apply only the law of the place where the tort was committed [123]. That the Privy Council might have been receptive to such an argument might be deduced from that the Privy Council noted:

• the uncertain scope of the “flexible exception” to the double actionability rule ([118]-[119], referencing Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 and Sophocleous v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 2167),
• that the double actionability rule had been strongly criticised by the UK Law Commissions (see Private International Law: Choice of Law in Tort and Delict , Law Com No 193 and Scot Law Com No 129 (1990)) ([120]),
• that in the UK the double actionability rule had been replaced first by a locus delicti choice of law rule for most torts under the Private International Law (Miscellaneous Provisions) Act 1995, s.11(1) ([120]), and then by a lex loci damni rule in the Rome II Regulation (EC) No 864/2007, art. 4(1) (which has been retained in UK law after the withdrawal of the United Kingdom from the European Union) ([121]), and
• that the double actionability rule has also been rejected in Canada and Australia ([122]).

The defects of the double actionability rule identified by the UK Law Commissions are usefully summarised in Dicey, Morris & Collins on The Conflict of Laws (16th ed, 2022), [35-013] and were also cited by the Privy Council ([120]):

• it is anomalous to require actionability by two systems of law, such an approach being unknown in any other area of UK private international law,
• it is “parochial in appearance” and unjustifiable in principle to apply the substantive law of the forum in cases involving a tort regardless of the factual situation,
• it gives an unfair advantage to the defendant because the claimant cannot succeed unless liability is established under two systems of law, and
• the formulation and application of the “flexible exception” is speculative and uncertain.

Yet, the double actionability rule remains applicable in England in defamation claims (excepted from the 1995 Act and the Rome II Regulations) where it serves to protect English publishers from claims under foreign – potentially draconic – laws. Moreover, the alternatives – lex loci delicti and lex loci damni rules – have also given rise to problems. The Australian courts have resorted to renvoi (rejected by the Privy Council – see below) to moderate outcomes from applying a strict lex loci delicti rule (see Neilson v Overseas Projects Corporation of Victoria [2005] HCA 54). The Rome II Regulation lex loci damni rule can cause friction with the loci delicti rule for choice of forum in the Brussels I Regulation (EC) No 1215/2012, art.7(2) by leading to different outcomes on choice of law and jurisdiction which could ultimately reflect in the complexity and costs of litigation.

On the basis of the Privy Council’s decision that there is no legal requirement that the claimant was aware of the representation and understood it to have been made, Mr Ivanishvili could show an actionable tort under Bermudian law. But under the double actionability rule the claim would still be barred because the claim was outside the applicable limitation period under Georgian law ([183]-[184]). The “flexible exception” did not apply because the claim did not have a significant connection with Bermuda ([188]-[189]). To get around the limitation period bar under Georgian law, Mr Ivanishvili sought to rely on, inter alia, “renvoi”.

Renvoi

“Renvoi is concerned with what happens when the … court refers an issue to a foreign system of law … and where under that country’s conflict of laws rules the issue is referred to another country’s law” (Lord Collins in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46, [124]). The foreign law expert evidence showed that, if the misrepresentation claim were brought in Georgia, then under its conflict of laws rules the claim would be regarded as governed by the law of Bermuda. Seeking to build on an article by Professor Adrian Briggs (‘In Praise and Defence of Renvoi’ (1998) 47 ICLQ 877), Mr Ivanishvili argued that, applying the doctrine of renvoi, the misrepresentation claim, including the question of limitation, would be governed solely by Bermudian law ([192]).

The Privy Council forcefully rejected that argument: English law, from which Bermudian law is not said to differ in that respect, has never applied the doctrine of renvoi in the field of tort ([193]). Several key textbooks (Briggs on Private International Law in English Courts; Dicey, Morris & Collins on The Conflict of Laws; Cheshire, North & Fawcett on Private International Law) were cited in support ([193]). The Privy Council noted that, except for specific areas of law outside the law of obligations, renvoi had been discredited for introducing unnecessary complexity, the possibility of renvoi stalemate (“circulus inextricabilis”) and the undesirability of subordinating the choice of applicable law to another country’s choice of law rules ([197]-[200]). To the extent renvoi could be used as a tool to restrain forum shopping, the Privy Council commented that forum shopping can be controlled directly under the doctrine of forum non conveniens ([216]). Accordingly, Mr Ivanishvili’s misrepresentation claim failed.

However, he did not leave empty-handed as his breach of contract claim was upheld ([58]).

Assessment

The renvoi argument was spirited but bound to fail. The Privy Council made it abundantly clear that there is no room for the doctrine in tort law and the law of obligations more widely. Perhaps more importantly, there is no judicial appetite for deferring “to the rules chosen by another country’s legal institutions, whatever those rules and the policies underlying them might be” [200]. As for double actionability, the Privy Council gave some hints that it does not look favourably on the rule and might have been prepared to abolish or restrict it had the point been argued by one of the parties. Given how rarely double actionability issues come before the courts, this is a missed opportunity. To me, this Privy Council judgment stands out for its engagement with the academic scholarship as well as practical concerns in the areas of private international law discussed in this note (and also in relation to the substantive law issues which I have left out).