By Yuvanant Tangviriyasirikul and Sophon Pathumratworakun
Edited by David Southern
During this COVID-19 crisis, working from home, e-transactions and e-meetings (meetings held through electronic devices) are commonplace business practice because these activities satisfy Thailand need for social distancing to reduce or eliminate the risk of infection from COVID-19.
Now that COVID-19 has changed day to day business practice, it is important for us to consider the law surrounding these business practices. With respect to e-meetings, the Thai law which was materially applicable is the Announcement of the National Council for Peace and Order No.74/2557 Re: Electronic Conferencing dated 27 June 2014 that required e-meetings to satisfy many stringent requirements and conditions of which the most draconian was that all the attendees had to be in Thailand and at least one-third of the quorum had to still be at the same venue, so it was quite impractical to actually arrange and convene e-meetings. During the national emergency in Thailand, due to COVID-19, Thailand has imposed strict requirements and measures for entering into Thailand and therefore some participants are limited to enter into Thailand and are unable to conduct an e-meetings during this period, moreover, for those able to meet in Thailand they should be social distancing and cannot do that if they must attend a venue together in order to achieve a quorum for a company meeting. Due to the fact meetings that comply with these regulations are difficult now, companies decision making processes in Thailand have been delayed.
As a result of the problems of delays created by the e-meetings laws, the government has recently relaxed the rules to facilitate companies to keep their businesses active in Thailand. On the 19th of April 2020 the government issued the Royal Ordinance on Electronic Conferencing, B.E. 2563 (2020) which took immediate effect to relax the previous requirements and conditions. Under this Ordinance, e-meetings can be held, provided that, in the event that attendees are not at the same venue, such attendees can converse with one another through an electronic device and such e-meetings will be held to conform with e-meeting security standards prescribed by the Ministry of Digital Economy and Society and published in the Government Gazette.
In addition, now the Ordinance omits prohibitions against convening matters which are deemed as confidential, secret or top secret in accordance with the regulations pertaining to matters of national security, which are prescribed by the cabinet, to be convened at the e-meeting. Up until todays date no matters have been prescribed by the cabinet.
The Ordinance also widens the scope of the potential attendees of e-meetings to include other groups of persons as specified by law and persons required to give explanations or opinions to the committee, sub-committees or group of persons.
Furthermore, the notice calling the e-meeting, as well as documents used for the e-meeting, could be sent by electronic mail and the person in charge of organising the conference must:
(1) arrange for the attendees to identify themselves for joining the e-meeting before joining the e-meeting;
(2) arrange for the attendees to be able to vote, either by a show of hands or by poll;
(3) prepare the minutes in writing;
(4) arrange for audio recording or audio and video recording, as the case may be, of all conference participants throughout the e-meeting in electronic data format, unless the e-meeting is confidential; and
(5) store the electronic traffic data of all attendees as evidence.
The data under parts (4) and (5) above shall be deemed part of the minutes.
However, unlike the notice for calling e-meetings, as well as documents used for an e-meetings which the law specifies may be done by email, the law does not specify the where a proxy statement maybe served by e-email or not. We are waiting judicial authority to confirm this.
Despite the issuance of new regulations in future as to the requirements and conditions of e-meetings, any e-meeting carried out under the Announcement of the National Council for Peace and Order No.74/2557 Re: Electronic Conferencing dated 27 June 2014 shall be deemed a legitimate conference under the Royal Ordinance.