Dynamics is pointed out as one of the characteristics of Commercial and Corporate Law due to the pressing need that economic agents have to find new solutions to continue developing their business activities, circumventing possible barriers and making the activity increasingly profitable and easy.
In this sense, the new Commercial Code, approved by Decree-Law no. 1/2022, of May 25 and currently in force (the "New ComC"), represents a true evolution and dynamism, by bringing technological solutions for General Assembly meetings (and other corporate bodies), expressly providing for the possibility of shareholders being able to participate and vote in General Assembly meetings by electronic means.
Before the entry into force of the New ComC and differently from other legal systems, in Mozambique, the rule of physical presence prevailed. In fact, the previous commercial code required the physical presence of the shareholders (or their representatives) at General Assembly meetings, not allowing their participation by any technological means.
Until the period before the pandemic, the physical participation in General Assembly meetings was one of the most discussed topics in the corporate environment. With the pandemic, this debate became more acute, being questioned how, in a technological and globalized world, where shareholders were located in different parts of the world, the use of technological means to participate in meetings was not allowed, which forced the use of means to circumvent the law. Since 2020, with the outbreak of the coronavirus pandemic, many shareholders / their representatives moved to different points and there were difficulties in bringing them together physically, complying with the rule of the previous Commercial Code. Similarly, there was an increase in the use and offer of virtual or telephone solutions for meetings and remote work, reaching the point of holding meetings with all participants in different locations, thus reinforcing the need to implement the so-called electronic solution in Mozambique.
Several advantages can be pointed out related to the use of electronic means, namely the reduction of costs and the elimination of the difficulties posed by geographical distances.
A possible problem could be raised for meetings held by electronic means: the fact that information technologies are not widely available in our country. We believe, however, that this is a false problem, to the extent that the meetings can be held in a hybrid format, that is, with the physical and also electronic participation of the shareholders of the company, and the company must create the conditions for this.
It is also important to take into consideration that, with the electronic solution in use, it will be convenient, although not mandatory, to use digital documents and signatures, that is, to replace paper documents and handwritten signatures, as long as the same levels of "intelligibility and durability" are ensured. The goal is to make the use of paper documents and handwritten signatures unnecessary in the corporate sphere, and to replace them with computer support, thus making a true transition in the corporate field that can operate 100% through electronic means. The Mozambican legislation already foresees the use of electronic signatures (subject to certification by the competent authority), the use of data messages or electronic information[1], lacking the concretization by the national regulatory entity and the socialization of its use.
The New ComC also includes rules on how notices of meetings shall be made, admitting the sending of notices of meetings through the use of websites and emails , the preparatory information[2] that is necessary for the shareholders to vote and deliberate in an informed manner upon receiving and having the opportunity to analyze the information in a timely manner, and on the , participation in the meeting and voting.
The meetings may be entirely virtual or, as mentioned above, hybrid, and must guarantee (i) the authenticity and security of communications; and (ii) the full recording of the meeting, its contents and respective participants, the respect for the quorum and the mention of the form of participation. Although in a virtual environment, one should not forget the concept of assembly, therefore, and as Susana Almeida writes "the collegiality of the General Assembly should also be guaranteed, avoiding as much as possible interruptions, which may determine the invalidity of the resolutions, the right to participate, discussion and voting and the violation of the rules of security, authenticity, identification of members and registration of the meeting, so that the meeting is not considered invalid and of great capacity to create litigation[3]".
With the New ComC, the conditions are created for commercial companies to be able to hold meetings of their assemblies with greater flexibility and it is expected the massive use of these electronic solutions by companies, complying with the imposed rules. Corporate law must become increasingly dynamic in order to quickly adapt to new trends, as was the case with the use of electronic means for General Assembly meetings.
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Read the original publication at Sal & Caldeira Advogados.