Luat Viet

:: Question :: In order to request to cancel the resolutions of General Meeting of Shareholders (GMS), in case the order and procedures for convening the GMS did not comply with Law on Enterprises and the charter of the company, how should shareholders or shareholder group do in this case?

Answer:

In accordance with to Article 107 of the Law on Enterprises 2005, in order to request to cancel a resolution of GMS, shareholders or group of shareholders shall directly request, or request by written documents the member of Members’ Council, Director or General Director, Inspection Committee to request a court or a arbitrator to consider and cancel such resolution. Then, the shareholders or group of shareholders should take into account some following legal issues:
Firstly: Determine the time-limit of the request
Article 107 of the Law on Enterprises 2005 provides that: within ninety (90) days from the date the minutes of the GMS is received or the minutes of the results of counting of votes being written opinions from the GMS is received, shareholders, members of the Board of Management, the Director (or General Director) and the Inspection Committee shall have the right to request a court or an arbitrator to consider and cancel a resolution of the GMS in case the order and procedures for convening the GMS not in compliance with the Law on Enterprises 2005 and the charter of the company.

Secondly: Determine competent jurisdiction for dispute settlement
Jurisdiction for dispute settlement might be an arbitral organization in one of the following cases: (i) The Charter of the Company stipulate clearly that the jurisdiction is an arbitral organization; or ii) Although the Charter of the Company has no stipulation on the competent arbitrator but after the dispute arises, relevant parties agree to choose an arbitral organization as jurisdiction for dispute settlement.
Competent jurisdiction for dispute settlement might be the court of law in the following cases: (i) There has no stipulations or no explicit stipulations on the jurisdiction for settling such disputes in this cases and after the dispute arises, there is no agreement to choose a specific arbitral organization for the dispute settlement; or (ii) the agreement on Arbitration between parties, although exists, is null and invalid in accordance with regulations and laws on Arbitration.

Thirdly: Submission of the Request for consideration/Petition and provision of evidences
Shareholders or group of shareholders or member of Members’ Council, Director or General Director, Inspection Committee have the right to submit Request for consideration (request for consideration of commercial and business case) for the cancellation of the resolutions of the GMS, or submit a petition (request for settlement of commercial and business dispute) to the competent arbitral organization or court of law for the cancellation of the resolutions of the GMS. Such request or petition shall meet some requirements in accordance with regulations and laws such as: valid copies of the minutes of the meetings (minutes of checking the votes of the GMS), and the resolutions of the GMS requested for the cancellation, evidences proving the incompliance of the order and procedures for convening the GMS with the Law on Enterprises 2005 and the charter of the company such as: valid copies of the charter of the company and other information and documents referring to the GMS issuing the resolutions requested for the cancellation such as: convocation for GMS, list of shareholders entitled to attend the GMS.
In each specific case, arbitrator or court will, based on evidences provided and produced by parties and on the governing regulations and laws, consider the cancellation of the resolutions of the GMS in accordance with the laws.
 

• » Question :: I am a member of the Supervisory Commission (the Commission) of a public company which is unlisted and termed from 2007 to 2010. Until now, my term is still valid. In 2009, I was [not] invited to attend any meeting of the company’s Commission. Recently, I also did not attend the Commission’s meeting to produce the Commission’s Report for submission to the General Shareholder’s Meeting (the Meeting) year 2010 on April 9. I was informed that this Commission’s Report was built by the Commissions’ Director (the another member of the Commission also did not attend). I would like to ask you whether the operation of the Commission like that is legal or not? Is the Report mentioned above legal? What should I do to comply with the rights, duties and obligations of a Commission’s member? (01/06/2010)
• » Question :: I am a president of the Management Board (“the Board”) of a public company. As per regulations, the term of the Board, Supervisory Commission (“the Commission”) is five (5) years. Therefore, the first term of the Board, Commission is due on November 2010. However, in order to facilitate the voting of the Board, the Commission in the second term, the Board would like to submit the General Shareholder’s Meeting (“the Meeting”) with the latest on April 19, 2010 for renewal of the first term of the Board, the Commission until April 2011. So, the question is that is the renewal true or not? If the shareholders are not taken opinions directly at the Meeting, can the Board collect opinions indirectly from shareholders in writing? If the Meeting does not pass the renewal, how can the voting of the Board, the Commission be taken in compliance with laws? (31/05/2010)
• » Question :: Our company registers shares at the Securities Depository Central (SDC), but cannot deposit, of which my 10.000 shares. So, can I transfer directly 2.000 shares to my brother and compliment 2.000 shares to my wife? (03/05/2010)
• » Question :: We are a unlisted public company which issued convertible bond (two years term) nearly two years ago. In the coming time, the company will register to list shares in the Ho Chi Minh City Stock Exchange (HOSE). In order to shorten time, will the company be able to conduct this procedure along with converting bonds to shares? (28/04/2010)
• » Question :: In 2009, the price of listed shares of many companies increased continuously. Therefore, such companies were required to provide explanation for such increase. There are many companies used the same explaining contents for different explanation. Please kindly provide the regulations on content of the explanation on increase of price of shares? (21/03/2010)