Today we live in the age of technology and this means that we all use our mobile phone for any routine management, from doing business to carrying out important transactions. This leads us to the big question, to what extent can electronic media be used to carry out formal communications?
It is true that currently communications via e-mail are recognized as documentary evidence in legal proceedings, and that messages made via WhatsApp are making their way as a means of communication and notification. So much so, that notaries are beginning to formalize WhatsApp conversations, granting them sufficient validity to be understood as evidence in a judicial proceeding.
On this aspect we have questions such as, Can we use WhatsApp for all kinds of communications? To what extent does the other person understand communicated? Is this type of application reliable?
If we focus on the corporate sphere, and specifically on calling the members of a General Meeting, it is logical to ask whether these types of communications are admissible in law. The first aspect to take into account is what is established in the bylaws, as these are the ones that determine how to communicate / convene a meeting to the partners of a society.
The Statutes may contemplate a single form of convocation or, on the contrary, broader forms of communication. In any case, we must pay special attention to what is established in the statutes since, if later we want to register in the Civil Registry the agreement adopted at the meeting, it will only be registrable if the provisions of the statutes are complied with. On this aspect, registrars follow a restrictive policy and only accept forms of summons included in the Company’s Bylaws. In the same way, if a partner does not agree to the resolution adopted at the meeting and the meeting has not been properly convened, the agreement could be challenged in a judicial proceeding.
Thus, after a first glance it seems difficult for a General Meeting to be convened through WhatsApp, however, this option is viable and totally possible as long as a certain premise is met.
This essential aspect is none other than that such possibility is included in the Company Bylaws including a clause or a section that establishes that “the call to the partners may be made through electronic communications”; “It may be communicated to the partners by electronic means as long as its reception is proven”; or the most direct “the members may be summoned to the general meeting by means of a WhatsApp communication”.
All these options give rise to being able to summon the partners through a simple WhatsApp, thus avoiding tedious communications via Burofax or Certified Letter. Likewise, the option that offers more possibilities is the first since it allows the administrator of the company to convene the meeting both via WhatsApp and by e-mail, the option of which may be more convenient.
It should be emphasized at this point that this option is not yet fully extended in practice, however, with increasing frequency company administrators are using these means to convene Shareholders’ Meetings since it is sometimes difficult to locate a partner who live abroad, or even receive certified mail on time. The most important and crucial thing in this aspect is to attend to what is established in the bylaws, since the registrars make a restrictive interpretation on this aspect and do not give rise to the use of these means unless they are expressly collected in this way.
In conclusion, although the legislator does not currently include electronic communications as a certified means of calling a general meeting, this possibility does exist in the current framework. The inclusion in the bylaws of a clause that enables electronic communications gives the administrator the opportunity to use electronic forms of summons that are, of course, cheaper and faster than sending certified letters. Thus, the use of electronic media, and specifically the use of the WhatsApp application, is here to stay, becoming more and more common in current corporate life.
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