For how much longer can companies continue to hold remote meetings?
Dolores M Gallo
Richards, Cardinal, Tützer, Zabala & Zaefferer, Buenos Aires
The Covid-19 pandemic has undoubtedly affected almost every area of law. Corporate law is no exception.
Aligned with the measures adopted to reduce the impact of the Covid-19 pandemic, the City of Buenos Aires Public Registry of Commerce (Inspección General de Justicia (IGJ)) eased the regulation relating to the promotion of virtual meetings, even for companies which were not authorised by their by-laws to hold meetings remotely.
The new section 84 of General Resolution No 7/2015 now states that the by-laws of companies registered under the IGJ may include mechanisms to hold governmental and management bodies meetings remotely, using means which allow the attendees to communicate simultaneously, provided the regulations included in the by-laws guarantee the following:
- free accessibility to the meetings for all attendees:
- the possibility of participating remotely through video or digital platforms which allow simultaneous transmission of audio and video;
- the participation of attendees with voice and voting rights and members of the statutory auditors, as applicable;
- the recording of the meeting on digital media;
- the recorded meeting is kept on a digital copy, which shall be made available to any partner on request, for a five-year period;
- the meeting held is copied to the corporate books, stating an exact record of the meeting’s participants, and signed by the legal representative; and
- in the call for the meeting by the legal and statutory means, the chosen means of communication and the corresponding means of access to guarantee attendees’ participation is clearly informed.
The IGJ regulations state that as long as the restrictions on general circulation continued to be in force, as a transitory measure, companies and other entities might hold their meetings remotely, even if they were not authorised to do so by their by-laws.
At the time of writing, Covid-19 cases significantly decreased and lockdowns and protective measures were eased, is it still possible to hold remote meetings in companies which do not contemplate virtual meetings in their by-laws?
The answer is significant as there is much at stake: not only the validity of the meeting but also the possibility of obtaining the registration of the approved resolutions before the IGJ.
As mentioned above, the undertaking of remote meetings with no statutory provision was admitted as an exceptional measure with a limited lifetime.
In fact, General Resolution No 11/2020 (later complemented by IGJ General Resolution No 46/2020) allowed the holding of remote meetings ‘throughout the period in which by order of the government the circulation of individuals is prohibited, limited, or restricted because of the state of health emergency’ declared by Decree No 297/2020 and its extensions.
In other words, for it to be applicable, a condition was necessary: the existence of restrictions on circulation imposed by the state of health emergency.
What is the current status of the restrictive measures?
Decree No 678/2021 of 30 September 2021 has significantly eased the restrictions in force by such date but it still sets out several preventive measures within the frame of the health emergency.
Among others, the Decree states that:
- individuals must keep a minimum distance of two metres apart;
- individuals must wear facemasks in communal rooms;
- rooms must be constantly and properly ventilated;
- all economic activities must be performed in compliance with the protocols and recommendations of the national, province and city of Buenos Aires authorities;
- under no circumstances will individuals who qualify as a ‘confirmed case’, ‘suspected case’ or ‘close contact’ be allowed to circulate;
- foreign individuals not resident in Argentina shall not be allowed to enter the country except if coming from neighbouring countries.
Similarly, the City of Buenos Aires has approved a protocol for the holding of in-person meetings by legal entities, which mainly requires attendees to keep a minimum distance of two metres, the use of facemasks and the ventilation of rooms (Resolution No 289).
In view of the above restrictions, we are of the opinion that the holding of remote meetings is still possible under the IGJ regulations. Even though the holding of in-person meetings is allowed while respecting the protective measures, we understand that the existence of such restrictive measures is the condition which permits the holding of remote meetings when such a possibility is not set out in the by-laws.
We undertake the IGJ’s regulation which implies a relief of corporate requirements for the holding of corporate meetings, and we expect the IGJ to continue with the integration of new technology to simplify and facilitate the governance and administration of companies, even when the pandemic is over.