- 1. The story begins. A husband and wife in the United States desperately want to adopt a baby girl and decide to get one from China.
- 2. Contract terms (private, but arise under Chinese adoption law which is summarized by the State Dep’t. http://travel.state.gov/family/adoption/country/country_365.html.)
- 3. How did we get to such a situation that our State Department would tell our citizens that they have to follow Chinese law if they want to adopt a baby from China? Hague Adoption Agreement.
- 4. Questions showing how to read a private international law agreement:
- What are some of the actions that governments are to take according to this agreement?
- What are the purposes or goals of this international agreement?
– Who, specifically, is given instructions to follow in this agreement?
– Where would you look to find out whether those instructions were carried out?
– How are disputes that arise under that agreement supposed to be resolved?
- 5. The story continues (Twenty years have passed and the adoptive parents have died leaving, in their will, almost everything to the adopted child and also a generous gift to the adopted child’s birth parents in China.)
- 6. Does the executor really have to go find these people in China and, if he doesn’t, do those beneficiaries have a right to sue for their inheritance? Hague convention on conflicts of laws relating to the form of testamentary dispositions.
- 7. Questions #2
- - Who is given instructions to follow in this agreement?
- - What is the goal of this agreement?
- - How is that goal specifically set forth in Article I?
- 8. The story continues again. One of the witnesses to the will comes forward and asserts that the will’s foreign gift provision must be considered invalid because he didn’t know about it when he witnessed the will and he never would have signed as a witness had he known of that provision.
- 9. Now, we’re talking about the FORM of the will, so we’re looking for an international agreement about that…sort of a gap-filler. Who does gap-filling agreements? UNIDROIT-Int. Inst. Unif. Priv. L. 1973 Unif. L. on form of an International Will.
- 10. Questions #3
- Who is given instructions to follow in this agreement?
- What are they supposed to do?
- 11. Note that we have to look at the Annex to the actual agreement to ascertain whether there’s a rule about witnesses’ observations of the will’s contents.
see article 4 of the annex
- 12. On with the story… The family in China is absolutely thrilled with this windfall and decides that they will use it to improve family sewing business. There is a particular type of sewing machine, manufactured in Germany, which will enable them to double their production. They use the inheritance to order four of these great sewing machines and two months later, upon learning from the shipping agent that their machines have arrived in Shanghai, they begin making preparations to travel there and collect the sewing machines. The trip goes as planned. They bring the sewing machines back to their small town and expect to thrive in business. But when they open the machines to set them up in their studio, they discover that one of them is defective. They contact the German company to arrange for an exchange to get a non-defective machine, but the manufacturer declares that he has no contractual obligation to exchange the machine.
- 13. What law applies? CISG
- 14. Questions #4
- What is the goal of this agreement?
- Who is obligated under this agreement?
- What are they obligated to do? Incorporate these contract terms as fall-backs when transnational contracts do not specify their own terms on an issue contained in the CISG or else when the contract states that the parties agree to follow CISG terms.
- What is the relevant CISG term for our story?
- Where would a dispute over “reasonableness” be heard? China or Germany?
- Where would you look to find out how much time is “reasonable”? (domestic law)
