This article examines the corporate governance aspects that directors, managers and shareholders in Oman should bear in mind when managing businesses, while continuing to uphold the social distancing mandates set out by the Government.
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On 1 April 2020, Oman was placed on lockdown with closed borders and restricted movement within the country. The authorities directed the entire population to “stay at home” and observe stringent social distancing measures to flatten the curve of the spread of the novel coronavirus (SARS-CoV-2). The lockdown will continue until at least 29 May 2020.
Pre- lockdown, companies have been used to making decisions by meetings in-person, whether these were held by the board of directors or shareholders’ meetings of joint stock companies (JSCs) or managers or partners’ meetings of limited liability companies (LLCs). Today in-person meetings are no longer feasible although the responsibilities of management under the companies law to make the right decisions in the best interests of the company remain the same. This also holds true to the resultant potential personal liability of directors and managers if inappropriate decisions are made – or indeed if resolutions are passed which prove to be invalid because they were not passed in accordance with the requirements of the companies law or other applicable laws or official directions.
Correct and effective corporate decision-making is perhaps even more important during a time-critical period such as this. At the very least such decisions are likely to involve strategies to deal with the COVID-19 crisis while continuing to operate and sustain the business; management of employees working from home, including potential job losses; management of cash flow; management of contractual situations dealing with legal issues such as force majeure and insurance claims (e.g. for business interruption). If the management of a company is adequately supported by robust corporate governance procedures, then it is more likely that the business will survive and management will avoid potential personal liability issues.
While technology offers solutions such as conducting meetings by electronic means and in certain circumstances the law permits written resolutions (i.e., circulated for signature without need for a meeting), it is important to determine for each company which solutions are available and whether there are any limitations to be considered.
In this regard, the recent promulgation by Sultani Decree No. 18/2019 of the new Commercial Companies Law (New CCL) has come at an opportune time. In this article, we have considered the position of LLCs and JSCs (both public JSCs (Societe Anonyme Omanaise Generale or SAOGs) which are listed on the Muscat Securities Market and regulated by the Capital Market Authority, and closed JSCs (Societe Anonyme Omanaise Close or SAOCs) which are not so listed and regulated by the Ministry of Commerce & Industry (MOCI)).
Finally, in the context of “written” minutes or resolutions passed by way of circulation, since 2008 and the Electronic Transaction Law, it has been possible for such minutes/resolutions to be signed electronically.
Most decisions and resolutions made by companies and their management are not challenged. However if they are challenged and it is found that a decision or resolution is invalid, the consequences, especially for management, may be severe. It is therefore essential to ensure that your company’s constitutive documentation is fit for purpose in these challenging times and that the appropriate steps are taken to ensure that decisions are made correctly and in good time.
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