Director's Implied Agreement to Electronic Notice for Convening Board Meetings
Chun-yih Cheng

According to the Companies Act, "in convening a meeting of the Board of Directors, a notice setting forth therein the subject(s) to be discussed at the meeting shall be given to each Director and Supervisor no later than 7 days prior to the scheduled meeting date. However, in the case of emergency, the meeting may be convened at any time." In order to keep pace with electronic age and to expedite the convening procedure, the Companies Act has been recently amended to permit the notice to be sent via electronic means as long as the recipient has so agreed. In practice, convening notices may be sent by computerized fax (where a document is created and sent by a computer to a recipient's fax machine). It is therefore called into question whether computerized fax is an electronic means, and as a result the recipient director's agreement is required.

According to a recent interpretation of the Ministry of Economic Affairs (MOEA), the authority in charge of the Companies Act, faxes could be divided into conventional paper faxes and computerized faxes. The paper fax is not an electronic means, and no agreement from the recipient director is required. However, a computerized fax will be considered an electronic means, and thus the recipient director's agreement is required.

That said, according to the MOEA's interpretation, if the Articles of Incorporation of a company have set forth that the convening notices for Board meetings could be sent by computerized fax or email, no agreement from the recipient director is required. This is so because by accepting the post of directorship, a director should have impliedly agreed that the convening notices may be sent by electronic means. Given the MOEA's recent interpretation, it is suggest that a company's Articles of Incorporation include a provision that the convening notices for Board meetings may be sent by electronic means to save all the troubles.