We would like to inform you that on October 20th, 2023, a Decree was published by the President of México in the Official Gazette of the Federation (Diario Oficial de la Federación), reforming various provisions of the General Law of Commercial Companies.
The main substantial modification would be related to the possibility of holding partners or shareholders meetings and management bodies meetings using any electronic means that allow the participation of all or part of the attendees through such means at the assembly or meeting in question.
This will apply provided that the participation is simultaneous and that interaction is equivalent to an in-person meeting. In any case, all meetings must have mechanisms or measures that allow access, identification of the attendees, the expression of their vote, and generate the corresponding evidence. Additionally, the resolutions of the managers may be taken using any electronic means if so, established in the bylaws.
It shall not be deemed that a meeting is held outside the registered office simply because any electronic means are used. Meetings may also be held outside the registered office, provided that they are approved by all shareholders, if this is the case, the minutes of the meeting shall indicate the address where the respective meeting took place. The minutes may be signed either with a handwritten or electronic signature by the President, Secretary, and Commissioners of the meeting.
Based on the above, we present to your consideration certain key legal situations to consider:
• The amendment is optional rather than mandatory; therefore, it will be at your discretion whether to integrate electronic means as a mechanism for holding meetings and various gatherings.
• Under the new reform, corporate risks may increase as the certainty of the meeting may be compromised, since electronically signed minutes are susceptible to alterations that may substantially change their content.
• To ensure greater security, the company must have mechanisms or measures that allow access, the identification of attendees, and, where appropriate, the exercise of their vote, and the generation of corresponding evidence. Therefore, we recommend paying attention to these aspects when drafting any amendment to the bylaws in this regard, as the implementation of cybersecurity measures may be necessary for proper legal certainty.
• The decree came into effect the day after its publication in the Official Gazette (Diario Oficial de la Federación), except for the reforms to the second paragraph of Article 81, which will come into force within a period of six months from their publication in the Official Gazette.
While the reform establishes guidelines for digitizing the actions of commercial companies, it does not delimit the parameters aimed at demanding a minimum that provides legal certainty to third parties in the holding of electronic meetings or similar gatherings. It is for this reason that we believe that caution should be exercised regarding the reform until the jurisdictional authorities issue the minimum measures necessary for the holding of electronic meetings, the accreditation of the identity of remote attendees, and the granting of consent at the time of reaching agreements and signing by the partners or shareholders.
We reiterate our appreciation for the trust placed in our Firm and remain at your disposal to provide any additional information and/or consultation you may require regarding the application of the new reform to the General Law of Commercial Companies.