• Estudio Alvarez Calderón

Shareholders' meetings and virtual assemblies last until the end of the year

The application of the measures approved in the Emergency Decree No. 100-2020 will allow to resolve the debate on the validity of convening and holding meetings or non-face-to-face or virtual assemblies, which in the current context are necessary in order to adopt agreements that make possible the development of activities, as well as for the registration of acts that require it. Through Emergency Decree No. 100-2020, measures were approved to allow, temporarily, that until December 31, 2020, companies, associations, foundations or committees or other private legal entities regulated by special laws can: In the first place, call and hold general or special shareholders' meetings and / or general assemblies, not in person or virtually. Thus, for such purposes, the use of technological or telematic means and of communications or of a similar nature is required, which allow communication and guarantee the authenticity of the agreement. This even though the statutes of the mentioned entities only recognize the possibility of calling and holding meetings or face-to-face assemblies. It is established that, in order to convene these boards or assemblies, the boards of directors and / or boards of directors of the aforementioned entities may also hold sessions in a remote or virtual manner. Likewise, it is provided that, for the registration in Public Registries of the resolutions adopted in non-face-to-face or virtual meetings, the minutes of general or special meetings and / or general assembly meet the following requirements: indicate the body that met; date; the start and end time of the meeting or assembly; full name and DNI number of those who acted as president and secretary; number of participants; matters discussed in the session; resolutions adopted with indications of the meaning of the votes; and means used for the celebration. Provisions Although the compulsory social isolation measures were progressively diminishing through the resumption of commercial activities, it nevertheless impacted, for example, in the calling and holding of mandatory annual shareholders' meetings that are held no later than during the first three months of each year and that are relevant to approve the management of the previous year, approve the economic results, appointment of the board of directors, as well as pronounce on the application of profits and appointment of external auditors, resulting, even, from these meetings, agreements that require registration in Public Records. It should also be considered that closed stock companies (SAC) are already authorized by law to hold non-face meetings, which is not the case of ordinary stock companies. In addition, these approved measures have as a precedent the provisions indicated in the Emergency Decree No. 056-2020 applicable to the entities in charge of the Superintendency of the Securities Market (SMV) and in the Emergency Decree No. 075-2020 applicable to cooperatives; in both cases referred to authorizing measures to exceptionally allow the convening and holding of non-face-to-face or virtual meetings as a result of the state of national emergency declared by the Government. Some conclusions Now, as a result of the promulgation of Emergency Decree No. 100-2020, it is possible to conclude the following points applicable to companies, associations, foundations or committees or other private legal entities regulated by special laws during the validity of this standard: 1. No shareholder, partner, associate, or any other person or public entity can ignore or oppose the validity of a meeting or assembly called and held in a non-face or virtual way, as long as technological or telematic means and communications have been used or of a similar nature, that allow communication and guarantee the authenticity of the agreement. 2. No legal void in the General Law of Companies and in the statute can be used as support to ignore the validity of the agreements adopted, by meetings or non-face-to-face or virtual assemblies. 3. The societies and assemblies have legal support to ensure the timely registration of their agreements before the Public Registries, this gives them the necessary predictability regarding the origin of their registration requests and compliance with the registration deadlines. 4. With the approval of the temporary measures in comment, a normative application is generated, avoiding the interpretation of the possibility or not of convening and holding non-face-to-face or virtual corporate meetings for those cases in which this possibility had not been foreseen in the statute social of each company. 5. The measures adopted are optional; However, this does not restrict them from choosing to call and hold their meetings or assemblies in person, if deemed appropriate. 6. The temporality of the approved measures extends until December 31, 2020. This means, for example, that in the case of companies that after this date do not contemplate in their statutes the possibility of holding non-face-to-face or virtual corporate meetings They must hold these meetings in person. Source: El Peruano




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