|Le Van Duong, partner at Indochine Counsel |
The Vietnamese government has applied various measures for the prevention of the pandemic such as social distancing policies, stay-at-home orders, mobility restrictions, quarantine, and community lockdowns. This has affected the normal operation of businesses, particularly affecting the organisation of physical meetings of members’ council of limited liability companies or boards of management and/or annual general meetings of joint-stock companies (together referred to as company meetings).
Most enterprises have preferred to hold company meetings online rather than approve decisions or resolutions via collecting opinions in writing as this allows them to discuss options and collect more opinions from the members or shareholders.
As the pandemic may not be fully resolved in the near future, it is critical for enterprises to know that they can still solicit member or shareholder consent in a timely manner.
There are several procedures that can be adapted to allow meetings to continue to be held under the current restrictions, along with practical steps that members, shareholders, and enterprises as a whole should take in order to ensure that the procedures of company meetings remain robust.
Convening a meeting
The first step for holding a company meeting is typically the publication of a notice to the members and shareholders, given not less than 21 days (for JSCs) prior to the date of the meeting. Such notice must include the date, time, and venue of the meeting and set out the resolution(s) to be considered at the meeting and the procedures by which members or shareholders may vote by proxy or attend and vote in person.
If, at the time of issuing this notice, it is known that physical attendance at the meeting will not be possible, the details of its conduct should be set out in more detail in the notice for the meeting. It would also be prudent for the notice convening the meeting to encourage members or shareholders to cast their votes by proxy and avoid attending in person.
|A huge number of businesses now are having to organise company meetings via online systems. Photo: Shutterstock |
Does the law allow for virtual meetings?
Meetings might not be entirely virtual as they may be considered to be a physical meeting convened wherever the chairman happens to be. The virtual aspect would be through the attendance of other meeting participants by telephone, videoconference, Zoom, or Skype.
The laws of Vietnam require that the meeting minutes include the venue of the meeting. If the chairman hosted a virtual meeting from his home address, however, it may not be appropriate to list that location in the publicly accessible meeting minutes. We see no conceptual reason why the meeting could not simply be “conducted through such teleconference or videoconference facility as shall be specified by the chairman of the meeting”.
The laws of Vietnam allow members or shareholders to attend and vote via an online meeting, by casting an electronic vote or voting via other electronic forms (Articles 59.4 and 144.3 of the 2020 Law on Enterprises). Therefore, the company meeting may validly have attendance via telephone or videoconference.
Suggested virtual procedures
Some procedures are suggested as a pragmatic but secure way of confirming the identity of those wishing to attend the company meeting electronically.
A video or audio conference facility should be set up for the meeting by the host (for example the chairman), and the conference should be recorded for further confirmation if necessary. Prior to the meeting, the chairman or a delegate should email each person who has asked to attend, notifying them that they may attend and vote virtually. They should request that each individual who wishes to attend virtually send an email including a copy of their ID and authorisation letter if any, ahead of the meeting, with appropriately redacted personal information if necessary, to match the details provided to the meeting secretary and shown in the tabulation spreadsheet.
Shortly before the start of the meeting, to limit the risk of unauthorised distribution, each virtual attendee should be emailed the detailed agenda of the meeting. Attendees should then join the meeting using the audio or videoconference facility at the appointed time. The chairman should check off the attendees by way of a roll call against those that have indicated that they intend to attend virtually.
The chairman will follow the usual procedure regarding announcing whether the meeting has met the quorum requirements or not, and allow the attendees to speak and ask questions. When it comes to voting, attendees should be polled one by one for their vote, unless all the attendees are on a videoconference and their votes can be shown by a raising of hands visible to the chairman and secretary of the meeting.
The secretary should repeat each voting instruction, so that everyone present can understand what is happening and voters can confirm that their votes have been received and recorded correctly.
Finally, the chairman should then announce the result of the voting in the usual way, to finalise the meeting and execute the meeting minutes.
It is noted that the meeting minutes shall be signed by the chairman and the secretary of the meeting. Any attendees disagreeing to pass the minutes (if any), should be accommodated to review the recording of the meeting later on for the purposes of reconciliation, after which they can signed the minutes.