The reversal of the decision that declared Uber as a disloyal competitor

After our article on this subject on our last Bulletin and in the midst of the mandatory isolation context in the era of the COVID-19 pandemic, a piece of extremely important news went almost unnoticed in Colombia: The Bogota Judicial District Superior Court, through a plea bargain issued on June 18th of 2020, revoked the first instance sentence issued in December of 2019 by the Jurisdictional Affairs Delegation of the of the Industry & Trade Superintendence (SIC), in the famous Cotech vs. Uber case. The discretion with which the media have treated the matter contrasts with the attention that the unfortunate sentence by the SIC was given at the time, despite the valuable content and effect of the second instance sentence.

The Court issued a plea bargain within the case, since as is its procedural duty, it had to do so (and the SIC should have also), by having proven the exception of the statute of limitations for disloyal competition initiated by the plaintiff, Cotech.

Article 23 of Law 256 from 1996 establishes that “the disloyal competition actions prescribe after two (2) years from the time in which the defendant had knowledge of the person who executed the disloyal competition act (ordinary statute of limitations), and in any case, over the course of three (3) months counted from the moment of the occurrence of the act (extraordinary statute of limitations)”. Uber, in the lawsuit’s response, formulated the exception of ordinary statute of limitations of the action based on the knowledge of the plaintiff regarding the existence and activities of Uber in Colombia, that is, the term of two years.

However, the Court observed that the SIC, in its sentence, stopped to analyze how the term of the extraordinary statute of limitations had expired for the action (that of 3 years), and for this reason performed the analysis of the continued acts, unnecessary when what is being discussed is the moment in which the plaintiff had knowledge of the allegedly disloyal proceedings of the defendant. From the time of the lawsuit and that of its amendment, Cotech’s attorney confessed that its client had knowledge of Uber’s “disloyal” proceedings in Colombia approximately 2 years and 6 months before presenting the lawsuit that initiated the disloyal competition process. That is, from the beginning of the process, the plaintiff had admitted, through its attorney, having initiated the process 6 months after the statute of limitations for the action.

The Court also concluded that the SIC exceeded its jurisdictional functions by filling out normative gaps with its interpretations. And the fact is that the SIC stopped to review article 23 of Law 256 from 1996 to conclude that said norm does not differentiate with respect to instantaneous and continued acts, but even then, the SIC interpreted the norm to conclude that an expiration corresponds to certain acts, and another one to the others. Before this, the Court resolved the question by emphasizing that the duration of the act being accused of illegal, has nothing to do with the expiration of the term, since the normative criteria are clearly two: on one hand, the plaintiff’s knowledge of the defendant’s activity (subjective), and on the other, the moment of realization of the act – and not its completion – which is what is dealt with in the theory of instantaneous and continued acts (objective).

The Court’s decision is received with joy and even relief, because with it, the damage that had been caused to legal security through the introduction of an unfortunate thesis that applied imprescriptibly to something that by nature must expire, has been remedied.  And it is that, the statute of limitations of the legal actions is basically a means of materialization of legal security. It is convenient for the public order and the general interest to eliminate the perpetual pendency of actions, and in this way, consolidate situations and realities. And in addition, it is important to remind the judges that it is their duty, and not their faculty, to issue plea bargains when the statute of limitations is proven, since in a legal system as congested as ours, it is not admissible that a legal office wastes its time and resources analyzing in detail (imprecisely and with no technical basis, apart from everything else), and with no need, when the action’s titleholder, out of laziness, disinterest or any other reason, missed its opportunity for a Nation´s Judge to review its arguments and pretensions. In this case, the SIC’s decision left a feeling of an underlying political interest that surpassed the evidence of the technicalities, as is this of the statute of limitations. Fortunately, in the double instance system, the Court rescued the statute of limitations institution, and along the way, placed the discussion related to the viability of a business model such as the Uber one in the Colombian market in the technology era, back on the table.

Tatiana López Romero
Associate Attorney in Litigations and Conflict Resolution