Further to the recent outbreak of coronavirus disease 2019 (COVID-19) in many countries, including Thailand, the Thai government has enacted the Emergency Decree on Electronic Meetings B.E. 2563 (2020) which allows the company to hold the meetings via electronic media without the requirement for the attendees to be physically present in Thailand nor to be in the same meeting room. Such Emergency Decree was announced in the Royal Gazette and became effective on 19 April 2020.
Previously, electronic meetings in Thailand was regulated by the Announcement of the National Council for Peace and Order No. 74/2557 which was not practical to most companies as it is required that one-third of the attendees must physically attend the meeting and the venue of meeting must be in Thailand only. According to the Emergency Decree on Electronic Meetings B.E. 2563 (2020), such limitations have been removed.
This Emergency Decree allows the meeting to be convened through electronic media, whereby the attendees are not required to be physically in the same place and the attendees can attend the meeting from inside and outside of Thailand via electronic media which allows the attendees to be able to communicate, discuss, express opinions and vote via audio, or video conference throughout the meeting. The notice of meeting (invitation letter) can be sent via electronic mail, provided that it was sent within the period required by law and also published in a local newspaper according to the law and the articles of association of the company.
Type of Meeting Covered by the Emergency Decree
According to the Emergency Decree, the definition of “Meeting Attendees” does not include “Shareholders”, therefore, it is not certain whether the type of meeting which are covered by this Emergency Decree includes the shareholders’ meeting or not. However, in our opinion, the shareholders’ meeting such as AGM or EGM should be covered. Even though the Emergency Decree is silent on this, but there is no explicit restriction and the prohibited types of meeting specified in the Emergency Decree does not include shareholders’ meeting on the list. In addition, according to the remark at the end of Emergency Decree, one of the grounds for this Emergency Decree is the indefinite postponement of the AGM.
Conditions of Electronic Meeting
The requirements of the electronic meeting under this Emergency Decree are as follows:
- Attendees must verify their self-identification before the meeting.
- Attendees are entitled to cast votes in either open or secret meetings.
- Minutes of meeting must be made in writing.
- An audio or audiovisual record of the meeting must be recorded throughout the meeting except for secret meetings.
- The electronic traffic data of each attendee must be recorded as evidence.
In addition, an electronic meeting shall be held in compliance with the standards for maintenance of security for electronic meetings prescribed by the Notification of Ministry of Digital Economy and Society which is currently still in the hearing process and shall be soon announced. In the meantime, the Notification of the Ministry of Information and Communication Technology1 re: Standards for Electronic Meeting Security B.E. 2557 shall remain in force insofar as they are not in contrary to this Emergency Decree.
Amendment of Articles of Association (AOA)
The Emergency Decree does not stipulate a requirement of amending the AOA to include electronic meetings. However, the Department of Business Development (DBD) has announced a notification under the last Announcement of the National Council for Peace and Order No. 74/2557 which required public limited companies, associations and chambers, to amend the AOA before they can properly hold electronic meetings. Limited companies or partnerships, whose AOA is silent on the electronic meetings, can hold electronic meetings without having to amend the AOA as long as such electronic meetings are convened in accordance with the requirements under the Announcement of the National Council for Peace and Order. We are in the opinion that the DBD will apply the same practice with this Emergency Decree.
If you have any questions about holding company online meetings through electronic devices, please contact PKF Tax and Consulting Co., Ltd.
1 Former name of the Ministry of Digital Economy and Society