Ballot paper. Is it possible to vote on the layout by e-mail?
The restructuring law provides that a vote may be cast in writing or orally. But what about the beast who would like to voice their voice electronically? Do the regulations provide for such a possibility?
During the creditors’ meeting, votes are generally cast in writing, while oral voting plays a supplementary role. The voting results are entered into the minutes, which indicate whose names and surnames he cast the vote, and on whose behalf he acted. This is very important in the context of the subsequent analysis of the acceptance of the arrangement.
The regulations allow for the possibility of conducting a meeting of creditors using electronic means of communication, but the only example of “the use of electronic means of communication” was the real-time transmission of a creditors’ meeting in which creditors speak. Voting in the manner described above is possible if the judge-commissioner so decides. However, the legislator has not created a closed catalog of electronic means of communication – it is therefore possible to vote “remotely” in a completely different way.
Voting act as a statement of will
In order to determine the possibility of voting in electronic form, it is worth considering what the voting itself is. By casting the floor, the creditor expresses his primary influence on the arrangement in the restructuring proceedings. The act of voting is limited to voting “for” or “against” the arrangement proposals and includes the acceptance or rejection of the arrangement proposals. In the doctrine of the act of voting, a declaration of will in the substantive legal sense is commonly recognized, therefore voting is the creditor’s behavior that reveals his will (approval or negation of arrangement proposals) sufficiently. Importantly, in accordance with the regulations, the declaration of will may take an electronic form.
Voting organization – current practice
The significant dispersion of creditors across the country, and even beyond its borders, makes the gathering of creditors, requiring their simultaneous presence in a designated place at a given time, a great challenge. It is also difficult to organize a broadcast of a creditors’ meeting (videoconference) in a way that allows each of the creditors to vote. There are obstacles both on the part of the manager-organizer and the creditors-participants.
In the era of the coronavirus pandemic, it has become common practice to vote in writing, bypassing the creditors’ meeting. In this model, the creditor receives a ballot paper from the administrator (supervisor) with instructions on how to fill it in and the date of its completion. The day of voting is the day of submitting the completed ballot to the postal operator, in other words – the day of sending the return shipment by the creditor.
Voting through electronic mail
Since the provisions on declarations of will apply to a written voting act, it should be considered that it is also possible to vote via e-mail, provided that the declaration of will meets the requirements regarding the form.
Since a declaration of will may be submitted in an electronic form (Article 781 § 1 of the Civil Code), and this form is equivalent to a declaration made in writing (Article 781 § 2 of the Civil Code), a vote may be made as a digital file with a qualified electronic signature authorized person. However, it is crucial that the signature meets the requirement referred to in the above-mentioned provision. For example, sending a scan of a letter signed “by hand” will be insufficient and ineffective.
In connection with the circulation of correspondence in the form of e-mail, it is necessary to observe additional rules of diligence. Before choosing this method of voting, the creditor should make sure that he has the correct e-mail address of the administrator or supervisor, and then that the correspondence has been received. In this case, the rule according to which submitting a letter at a post office is tantamount to casting a vote does not apply.
Before sending an electronically signed vote, it is worth determining whether the supervisor or administrator accepts this form of the creditor’s actions. Failure to accept it may result in the vote not being recognized and it will be necessary to challenge the position of the supervisor or manager before the judge-commissioner.
In the era of a pandemic, the organization of a creditors’ meeting, which requires simultaneous presence in a designated place, faces a problem not only of a logistic nature, but above all of security. In a situation of widespread health threat, it seems rational to look for alternative methods of voting with the over-system – “e-mail voting” minimizes the risk to the maximum, allowing the creditor to vote without leaving home. At the same time, this method seems to be technically much easier than organizing the aforementioned videoconference.