Pursuant to Article 23 of Law 256 of 1996, the unfair competition action prescribes two years from the time the claimant became aware of the author of the unfair competition act and, in any case, three years from the commission of such act.
According to the Superintendency of Industry and Commerce, in the first case we refer to ordinary prescription, which, according to case law, is subjective in nature and occurs after two years from the time the claimant becomes aware of the act that it deems unfair.
Therefore, this limitation period begins to run from the moment the allegedly unfair act and its perpetrator are known until the relevant judicial complaint is filed, during which period no more than two years may elapse, which in turn constitutes a limit for the injured party to bring the action.
In the case at hand, it was sought to consider that Terpel and ExxonMobil created a strategy to expel Ludesa from the market, but the defendant companies demonstrated that the aforementioned two-year term had expired, insofar as the plaintiff filed the action after said term.
Ludesa filed a conciliation request on September 16, 2019, which, pursuant to Article 21 of Law 640 of 2011, entails the suspension of the limitation period from that date until the issuance of the certificates mentioned in Article 2 of that law. However, since the two-year term to file the action had already elapsed by that date, the filing of the conciliation request did not result in the suspension of the prescription.
Thus, since the prescription was not interrupted in a timely manner, the action prescribed insofar as the plaintiff became aware of the unfair acts of business union between the defendants on February 28, 2017 (so the deadline expired on February 28, 2019).