* [Reproduced from the text provided by the U.S. Court of Appeals for the Second Circuit. The text also appears at 757 F.2d 516 (2d Cir. 1985).

[On April 30, 1985, a petition for rehearing in banc, filed by Banco Credito Agricola de Cartago, et al., was denied. It was noted “that the suggestion for rehearing in banc has been transmitted to the judges of the court in regular active service and to any other judge that heard the appeal and that no such judge has requested that a vote be taken thereon.”

[The court's previous decision of April 23, 1984, appears at 23 I.L.M. 742 (1984).]

^* Charles, M. Honorable Metzner, United States District Judge for the Southern District New York sitting by designation.Google Scholar

¹ The underlying obligations had been assumed by the Costa Rican banks after the failure of the Latin American Bank, abank doing business principally in Costa Rica, pursuant to the bank's reorganization. The Costa Rican banks issued new promissory notes and executed side letter agreements with the syndicate of creditor banks in 1976.

² This estimation may be guided but not controlled by the position,if any, articulated by the executive as to the applicabilityvel von of the doctrine to a particular set of facts. Whether to invoke the act of state doctrine is ultimately and always ajudicial question.

³ It seems clear that if the decrees are given effect and Allied's right to receive payment in accordance with the agreement is thereby extinguished, a “taking” has occurred

⁴ Each agreement specifically provided:

⁷ Events of Default:If any of the following events of default should occur and isnot remedied within a period of 30 days as of the date of occurrence, the Agent Bank may, by a written notice to the Borrower declare the promissory notes to be due and payable.In such an event, they shall be considered to be due without presentment, demand, protest or any other notice to theBorrower, all of which are expressly waived by this agreement:

Any payment of principal or interest under this transactionshall not have been paid on its maturity date.If the Borrower shall not effect any payment of principalor interest on the promissory notes at maturity, duesolely to the omission or refusal by the Central Bankof Costa Rica to provide the necessary U.S. Dollars,such an event shall not be considered to be an eventof default which would justify the demandability of theobligation, during a period of 10 days after such maturitydate.