The COVID-19-Crisis and Company Law: Towards Virtual Shareholder Meetings
Regulators and Parliaments around the world have responded to the COVID-19 epidemic by amending company law. This crisis legislation allows us to examine how, and to what effect, the corporate governance framework can be amended in times of crisis. In fact, almost all leading industrialized nations have already enacted crisis legislation in the field of company law.
In our recent working paper, ‘The COVID-19-Crisis and Company Law - Towards Virtual Shareholder Meetings’, we have sought to (1) document the respective crisis legislation; (2) assist countries looking for solutions to respond rapidly and efficiently to the crisis; (3) exchange experiences of crisis measures; and (4) spur academic discussion on the extent to which the crisis legislation can function as a blueprint for general corporate governance reform.
Countries considered in full or in part include Australia, Austria, Belgium, Canada, China, France, Germany, Hong Kong, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, South Korea, Spain, Switzerland, Thailand, the United Kingdom, and the United States. Readers are encouraged to highlight any inaccuracies in our presentation of the respective laws, and to bring further crisis-related legislation not considered in this working draft to the attention of the authors. Moreover, readers are invited to indicate where there is room for improvement therein, and/or to signal the need for policy reform.
Drawing on the analysis of these more than twenty countries, we note five fields in which legislators have been particularly active. First, the extension of filing periods for annual and quarterly reports to reflect the practical difficulties regarding the collection of numbers and the auditing of financial statements. Second, company law requires shareholders to take decisions in meetings—and these meetings were for the most part in-person gatherings. However, since the gathering of individuals in one location is now at odds with the measures being implemented to contain the virus, legislators have generally allowed for virtual-only meetings, online-only proxy voting and voting-by-mail, and granted relief to various formalities aimed at protecting shareholders (including fixed meeting and notice periods). Third, provisions requiring physical attendance of board members, including provisions on signing corporate documents, have been temporarily lifted for board matters. Fourth, parliaments have enacted changes to allow for more flexible and speedy capital measures, including the disbursement of dividends and the recapitalization of firms, having accepted that the crisis impairs a company’s equity. Fifth and finally, some countries have implemented temporary changes to insolvency law to delay companies’ petitioning for insolvency as a result of the liquidity shock prompted by the imposition of overnight lockdowns.
The legislation passed in response to the COVID-19 crisis provides for an interesting case study through which to examine what can be done to modernize the corporate governance framework with a view to furthering digitalization. Given the difficulties or indeed the impossibility of conducting in-person meetings currently, the overall trajectory of company law reforms has been to allow for digitalization of corporate governance, and ensuring the permissibility of virtual shareholder meetings (VSM), in particular.
In this respect, it is safe to assume that the rules on VSM will have model character. While the details of the modus operandi of VSM will require careful adjustment, to ensure that shareholders will be afforded the same rights and opportunities to participate as they would at an in-person meeting (including Q&A), the experimental phase during the crisis will feed into the policy discussion, with some more successful and some less successful examples providing food for thought. Yet, it is safe to say that the COVID-19 pandemic has unveiled the need for virtual-only shareholder meetings, and that some types of VSM will stay for good long after the current crisis has subsided.
Dirk A. Zetzsche is Professor in Financial Law and ADA Chair in Financial Law and Inclusive Finance in the Faculty of Law, Economics and Finance, University of Luxembourg.
Linn Anker-Sørensen is a Senior Manager at Ernst & Young, Norway.
Roberta Consiglio is a research associate at University of Luxembourg.
Miko Yeboah-Smith is a research associate at the University of Luxembourg.
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