Decree 398 of 2020 addresses concerns regarding the holding of shareholders' meetings, partners' meetings, and board meetings under the current situation caused by COVID-19 or coronavirus, given the epidemiological risk the country is currently facing.
This decree brings to light the most recent pronouncement of the Ministry of Commerce, Industry, and Tourism, which provisionally regulates the rules governing the convening, quorum, and majorities of partners' meetings, general shareholders' meetings, or board meetings so that they may be held in a non-presential manner.
As we know, as a general rule, the meeting of the competent corporate body of companies must be held before March 31, 2020. However, given the situation the country is going through, it is pertinent to apply the exception provided for in paragraph 2 of Article 2.1.1.1.14 of Decree 1081 of 2018 (Single Regulatory Decree of the Presidency of the Republic) as follows:
Article 2.2.1.16.1. Non-presential meetings. (…) when reference is made to (all partners or members), it is understood that it refers to those who participate in the non-presential meeting, provided that the number of participants required to deliberate according to legal or statutory provisions is met (underlining and bold added).
Thus, the legal and statutory provisions on the convening, quorum, and majorities of presential meetings shall be equally applicable to non-presential meetings, even if not provided for in their bylaws.
In this regard, it is recommended to hold meetings in a non-presential manner, using the digital means we have access to today. This is in order to resort to mechanisms that prevent the risk of spreading infections.
Author: Andrés F. Zafra P. Consulting Attorney AZC