Does the joint-stock company have the right to hold the general meeting of shareholders through an online conference method? What is the legal basis according to Vietnamese?
Answer:SBLAW would like to advise as follows:
The online method for holding a general meeting of shareholders is regulated under Article 144 of Law on Enterprise 2020
“1. Shareholders and representatives of shareholders that are organizations may directly participate in the GMS or authorize one or some other organizations and individuals to participate the GMS or participate in the GMS is one of the forms specified in Clause 3 of this Article.
- It will be considered that a shareholder attends and votes at the GMS in the following cases:
- c) The shareholder participates and votes online or through other electronic methods;”
For the public corporation, holding a general meeting of shareholders via online conference method is followed up the Circular No. 116/2020/TT-BTC on guidelines for implementation of some articles on the administration of public companies in the government’s decree no. 155/2020/ND-CP dated December 31, 2020, elaborating some articles of the law on securities.
For a normal joint-stock company, the enterprise law still has not regulated particularly the method to hold the general meeting of shareholders via online meeting conference.
In comparison with the actual practice, General Meeting of Shareholders organized in the form of an online conference is construed as an activity to set up General Meeting of Shareholders in line with order and procedure as stipulated by laws on the normal one, nevertheless, discussion among the attending shareholders is implemented via the online conference.
According to point a clause 1 Article 115 of Law on enterprise, shareholders have the right to:
“Participate in and make comments at the General Meeting of Shareholders; exercise the right to vote directly or through authorized representatives or another method prescribed by law or the company’s charter. Each ordinary share equals one vote”
For some joint-stock companies, if the method of the general meeting of shareholders via online conference already has regulated particularly on the Charter, Regulations of holding general meeting via online conference agreed by General Shareholders, the holding general meeting of shareholders via online conferences shall be legitimate.
Even if other joint-stock companies still have not regulated the method of holding general meetings via online conference in Charter, according to point a clause 1 Article 155 mentioned-above and point c clause 3 Article 144, theoretically, it can be affirmed that the normal joint-stock company has the right to hold a general meeting in the form of online conference, even though this form has not been stated in the company’s charter.
However, this is a new method and there are no judgments related to the request to cancel the Resolution of the General Meeting of Shareholders on account of
the generality of the method of online conference, so there is still some risky of disputes shortly.