Dr. Velimir Zivkovic, MJur, is an Associate Professor and Director of LLM ICL, IEL and ICGFR programs at the University of Warwick School of Law. Velimir’s work focuses on the interplay of international investment law and other areas of international and national law, as well as the rule of law issues affecting these areas. Velimir is also the author of many publications in the ISDS arena, including the new book, “Fair and Equitable Treatment and the Rule of Law.”

Velimir kindly agreed to sit with us and share his research and views on the FET standard, future of ISDS and the relevance of academic work in arbitration practice.

Young EFILA: Let’s start with the origins: what attracted you to a career in arbitration and public international law?

Velimir Zivkovic: Vis Moot, FDI Moot and Jessup Moot, plain and simple. I generally liked commercial and international law-oriented subjects during my undergraduate studies, but getting involved deep into mooting, researching, arguing…gripped me so much that I never looked back. Specific areas, issues, and questions crystallised later, but this was the start.

YE: Like many of us, the starting point of your main research topic came up accidentally from a meeting on a consultancy project proposal. Can you tell us more about how you started analysing and researching the Fair and Equitable Treatment standard?

VZ: I did research on various investment law issues during my MJur degree and for the FDI moot, but this particular topic – what is FET and how does it relate to the rule of law – came from a fairly simple question during a project meeting. A non-specialist colleague asked, ‘so, what do we tell the state institutions during the training sessions, how not to fall foul of FET?’ and that got me thinking. I could not quite put my finger on what the essence of it was, but it just seemed to hover around the rule of law. And once I started to dig deeper, I just knew this was something I wanted to explore in-depth academically, hence my PhD and all the research that culminated in my recent book.

YE: On a similar note, what is your best advice for young practitioners trying to land their first research project or publication?

VZ: Deep interest in a particular issue or topic coupled with the readiness and opportunity to spend an inordinate amount of time really getting to grips with the cases and literature on it. If there is something that just keeps popping into your mind as you go about your day or get ready to fall asleep, and you know that you will be fine with reading about it for hours and still not get bored – that’s your project.

YE: Going back to the FET. My understanding is that your position is to ground the FET standard in general principles of law, other than, for example, in customary international law. Can you tell us more about this interpretation and why it may be a more viable interpretative route than grounding the FET on customary international law?

VZ: Put quite briefly, it is a more viable interpretative route if you want to do as much of a proper evidentiary job as possible to ground your arguments. Although often invoked, actually proving the existence of customary international law (practice + opinio juris) is an incredibly onerous task that is rarely done well in comparative and evidentiary terms. Simple, broad assertions that something is customary law (coupled with reference to one case and one, sometimes Victorian-era, author) simply do not meet the benchmark for me. But general principles of law do not require evidence of them being obeyed by the states and followed as such – just the evidence that they are accepted in their legal systems and/or international law. And I do believe that the rule of law requirements are both widespread and that this can be proven much more persuasively than the customary law path. Put together, I believe it provides a considerably firmer foundation for the FET standard.

YE: Let’s switch to another sensitive topic. The future of ISDS. Recent trends seem to show a revival of economic nationalism and anti-arbitration attitudes. What do you think is the future of ISDS and international arbitration for Europe and beyond?

VZ: ISDS and protection of foreign investment, more generally, are tied to a particular, liberal economic philosophy and, at their very essence, deem foreign investment as a good thing for everyone involved. Without engaging in the complex debates about the empirical merits of such a position, and whilst reserving the right to say that I do not think economic nationalism will bring much good, it is clear that ISDS cannot survive without political support. I do believe it can be a force for good things, as I try to argue in my book. It is also unlikely to disappear overnight or anything like that. But without a new source of legitimacy, or at least a deeply enhanced perception of such legitimacy, it will eventually decline back into days before the AAPL v. Sri Lanka launched it into the mainstream.

YE: One thing that attracted me to international arbitration and public international law is the relevance that academic writing and scholars’ opinion may have in the decision-making process. What do you think is today’s relevance of academic writing in the international arbitration practice?

VZ: International arbitration, of virtually all sub-types, is shaped to a very large extent by academic writings, and the influence of some of the ‘household names’ in arbitration is indeed fascinating. There are multiple reasons for this. Some are tied to convenience – why spend too much time rehashing points that a well-known author said so well? Some are due to the overlap of academics and practitioners in this epistemic field. And part of it is because there are many excellent scholars who do interesting work, and there is simply good work to cite. Be it as it may, it does make it additionally appealing to be an academic in this sphere.

YE: And last, to end on a lighter note, what would you have done if you weren’t working in law and as a law professor?

VZ: If I was still allowed to be an academic, then history – I always loved it and always will. But if I was not to go anywhere close to academia, then football – I was quite a talented goalkeeper. I could have actually had a decent career if only my love for scholarship had not prevailed!

YE: Thank you for joining us today, Velimir!

**** This interview was conducted by Cristian Gallorini  and forms part of Young EFILA’s Interview Series with Arbitration Practitioners ****