We would like to kindly inform that in 2011, in 2nd issue of Commercial Law Overview (Przegląd Prawa Handlowego) journal, on pages 4-15 has been published article from one of the partners of our legal office, prof. dr hab. Wojciech Kocot, entitled: “Using information and communication technology (ICT) networks in corporate relations of joint-stock companies”.
Widely discussed in article amendments to the Code of Commercial Companies and Partnerships introduced by the Act of 5 December 2008, which entered into force on 3 Aug. 2009, are, according to prof. Kocot, the first important step towards broadening freedom to use contemporary electronic communication systems in connection with governing bodies of companies – mainly joint-stock companies – in performing their corporate functions. At first, the amendments affected stock-offering companies, especially public companies, whose valid existence is reliant on the exploitation of the newest IT technology. Beside new articles, being a result of implementation of Directive 2007/36/WE and introduction the amendments concerning public companies, Code of Commercial Companies was also extended by new adjustments based on general rules of effortless use of the electronic communication means (for example: art. 4065 § 1 i § 2, art. 401 § 1 i § 6, art. 428 § 4) which have been proven to work for contractual practice as well as for corporation practice in joint-stock companies. Apart from that, thanks to implementation of anti-discrimination, electronic ways of trading friendly interpretatnion (among others: new interpretation of the prescriptive notion “letter”), some of the ways of using the electronic techniques were incorporated into the existing articles.
Prof. Kocot believes that technical potential of the Internet is still not used in full. Although shareholders of Polish joint-stock companies – especially public ones – were allowed to exercise specific powers by electronic means, many corporate functions still have to be performed by traditional methods. Furthermore, IT techniques, that are used in contractual practice for a long time now, for instance during the negotiations, are still unavailable for corporate purposes of companies (for example: virtual general meeting). Changes that has been made gives us a reason to hope that this is not the end of the modernization of Code of Commercial Companies and promotion of IT techniques in corporation practice of joint-stock companies and all other capital companies. By virtue of systemic nature of the code regulation and special character of the public companies, the postulate to regulate the issues related to those companies in whole new chapter of Code should be supported and implemented in practice with the next regulation. Moreover, prof. Kocot points out that it’s necessary to reconsider if using the notion “public company” is still well-founded in light of newest solutions of EU law. Also, the combination of the arrangements related to this particular company and the general regulations that are addressed to all kind of companies brings unnecessary complication of the interpretations, difficulties in using and marginal transparency to adopted solutions. For instance can be mentioned art. 401 § 6 or art. 4063 k.s.h., which personal scope of application cause doubts in interpretation, due to systemic interpretation and logic connection with art. 8 of the Directive 2007/36/WE related only to public companies.
