The Enterprise Law 2014 provides that in a meeting of the Board of a joint stock company (JSC), a Board director may authorise another person to attend if such authorisation is approved by the majority of members of the Board. However, the Enterprise Law 2014 is silent about the ability of a Board member to authorise another person to vote for such Board member if the Board decides to pass its decision by way of collecting written opinion of Board members.
One may argue that authorisation for voting by way of collecting written opinion of Board members is permissible since:
· The provision on a face-to-face meeting of the Board could apply by analogy;
· The general rules on authorisation under the Civil Code 2015 could arguably allow a Board member to authorise another individual to conduct the work of Board member; and
· No provision under Enterprise Law 2014 specifically prohibits a Board member from authorising another person to act on his/her behalf.
On the other hand, since a Board member has certain fiduciary duties, one can argue that a Board member can only delegate such duties if expressly permitted by law. Under Enterprise Law 2014, the procedures and formalities for the Board of a JSC to pass a resolution by collecting opinion in writing must comply with the company’s charter and Vietnamese law. Accordingly, if the charter explicitly allows a Board member to authorise another person to act on his/her behalf to vote by way of getting a written opinion, then such authorisation should be valid.
This post is contributed by Le Minh Thuy, a trainee at Venture North Law.