3 March 2021
The COVID-19 pandemic has resulted in a significant increase in the popularity of electronic meetings among businesses across the world, as physical meetings became unfeasible due to government lockdowns and regulations limiting gatherings to limit the risk of further spreading the disease. In Thailand, this turn of events has resulted in the promulgation of a new electronic meeting law to modernize rules that facilitate the convening of corporate entities’ statutory meetings as required under Thai law.
Electronic meetings in Thailand have been permitted to some degree since June 27, 2014, when the Announcement of the National Council for Peace and Order No. 74/2557 on Teleconferences through Electronic Means B.E. 2557 (2014) first allowed the practice, subject to various restrictions. However, many companies considered two strict requirements under this announcement to be impractical: at least one-third of the quorum for the electronic meeting had to physically attend the meeting at the designated meeting venue, which implies that no more than two-thirds of the quorum could choose to attend the meeting via electronic means; and all participants of the electronic meeting (whether attending electronically or in person) had to be physically present in Thailand at the time of the meeting, which effectively prohibited overseas participation.
New Rules for Electronic Meetings
The new electronic meeting law, the Royal Decree on Teleconferences through Electronic Means B.E. 2563 (2020), came into effect on April 19, 2020, replacing the 2014 order and relaxing its most onerous limitations in order to facilitate meetings of directors and shareholders via electronic means during the COVID-19 pandemic.
The key relaxations codified by the royal decree include allowing all attendees to attend meetings via electronic means, such as by phone or videoconferencing, from anywhere in the world. Furthermore, there is no longer a physical attendance requirement, and notices (and enclosures) calling a meeting can be distributed to participants via electronic mail, replacing the standard postal requirement of the 2014 announcement.
The new royal decree also needed to introduce certain statutory protocols in order to safeguard the integrity of the new meeting procedures. First, the meeting organizer must keep records of the meeting notice that is sent out electronically, and must verify the identities of the participants before the meeting starts. There must also be an audio or audiovisual record of the entire meeting (except for secret meetings), and the electronic traffic data of all attendees (i.e., the log file of usernames and login/logout dates and times) must be kept as evidence. Minutes of the meetings must also be documented, whether in an electronic or physical format.
Similar to the previous law, the new royal decree applies to board meetings and shareholders meetings of both private and public companies in Thailand, as well as to meetings of partnerships, trade associations, and chambers of commerce. Companies may choose to hold electronic meetings regardless of whether their articles of association have any provision specially permitting this. In addition, the standard rules and conditions for physical meetings still apply to electronic meetings, for instance, appointment of a proxy is allowed at a shareholders meeting but not at board meetings.
Security Measures for E-Meetings
To supplement the new royal decree, the Ministry of Digital Economy and Society (MDES) issued a new set of mandatory security standards for electronic meetings in its Notification Re: Standards for Maintaining Security of Meetings via Electronic Means B.E. 2563 (2020). The notification, which came into effect on May 26, 2020, outlines various mandatory security measures and procedures for electronic meetings. It also regulates the role and functions of the “conference control system” and the “system controller.” While the new royal decree already addressed security measures to some degree through its statutory protocols, the MDES notification added the following key requirements:
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Method of identity check. The meeting organizer may adopt any secured method of identity verification, such as username and password or one-time password.
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Two-way communication. The meeting must have sufficient bandwidth to provide a clear and continuous communication channel—whether via interactive audio or video communication—to allow participants to interact and express opinions to one another without interruption throughout the meeting.
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Conference control system. The chair of the meeting (or the system controller) must have technological access to control or restrict, whether permanently or temporarily, the participation of attendees during the meeting in case of necessity or emergency.
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Access to documents and data. Attendees must be able to access documents and data presented during the meeting.
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Voting mechanism. The meeting must grant access to the technological tools to facilitate voting by the attendees, whether in the form of a general vote or a secret vote;
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Storage of records. The meeting must keep records and data in connection with the meeting, including method of identity check, method and results of votes, audio or audiovisual recording (except for secret meetings), attendees’ electronic traffic data, and occurrence of disruptions during the meeting (if any).
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Troubleshooting. Attendees must be able to report disruptions and errors that occur during the meeting, and the organizer must arrange for proper solutions and preventive measures.
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IT security standards. The meeting must meet minimum IT security in terms of confidentiality, integrity, accessibility, privacy and protection of personal data, and other IT security measures.
It has become a general and convenient practice for electronic meetings to be conducted via free or paid conference applications or platforms, such as MS Teams, Zoom, Google Meet, and so on. The Electronic Transaction Development Agency (ETDA) is empowered to verify and certify whether the conference control systems have the technical capabilities or functions to comply with the security measures set out by the MDES notification on e-meeting security. To date, several conference control systems have voluntarily completed the ETDA’s self-assessment, but only a few have opted to apply with ETDA for its official certification. Both groups are published on the ETDA website at https://www.etda.or.th.
Meeting organizers from all Thai companies should familiarize themselves with these new laws and rules on electronic meetings and carefully choose a conference control system that both complies with the regulations and is compatible with their needs. Regardless of the platform chosen, the royal decree and the associated MDES notification have taken a much-needed, modernizing step that significantly eases the process of corporate operations in Thailand. These developments are an encouraging indication of Thailand’s intent to facilitate international business in the country, and a welcome innovation for shareholders and board members.
For further information, please contact:
Kobkit Thienpreecha, Partner, Tilleke & Gibbins
kobkit.t@tilleke.com
