Can the agenda of a meeting of the Board of a Vietnamese Joint Stock Company be changed during the meeting?
Under the Enterprise Law 2020, the General Shareholder Meeting (GSM) of a joint stock company (JSC) can decide to change its agenda and approve the new agenda when the meeting commences. There is no such provision with regard to a Board meeting. Accordingly, it is not clear if the Board can decide to change the agenda of a Board meeting during the meeting. That said, it is reasonable that the Board should be entitled to do so.
In particular, the Board could decide to change the agenda of a Board meeting based on the following grounds:
the Enterprise Law 2020 does not prohibit the Board from changing the agenda of a Board meeting at the meeting;
it is reasonable that the provisions concerning a meeting of GSM could apply to a meeting of the Board by analogy. In such case, the Board should have the right to change the agenda of a Board meeting as the GMS does; and
in practice, allowing the Board to change the agenda of a Board meeting will make the operation of a JSC more efficient. Since instead of scheduling for another meeting, the Board could decide on the relevant matter immediately at the current meeting.
On the other hand, there are certain following counter-arguments that the law does not allow the Board to change the agenda of a Board meeting at the relevant meeting:
Article 157.6 of the Enterprise Law 2020 provides that the invitation to a Board meeting must specifically determine the time and venue of the meeting, agenda, and issues to be discussed and decided at the meeting. One could argue that the specific agenda of the meeting must be notified to each Board member. Accordingly, changes to such agenda must also be notified to Board directors before meeting and cannot be made at the meeting; and
In practice, it appears that there has been a case where a resolution of the Board of a JSC enterprise was revoked by the court for failure of prior notice of change of agenda to Board directors.
To mitigate the potential counter-arguments, the person convening a Board meeting could add a general item on the agenda notified to Board directors and argue that the requirement for specific details only applies to the time and venue of the meeting.
This post is written by Luu Tuan Hung and Nguyen Quang Vu.