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Q：
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Do all directors need to sign a directors’ written resolution (“DWR”)?
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A：
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Pursuant to Clause 15 of the Third Schedule of the Companies Act 2016 (“CA 2016”), a DWR is deemed valid if it is signed or assented to by all directors entitled to receive notice of a board meeting.
This requirement is subject to the provisions of a company’s Constitution. If a Constitution has been adopted, the signing threshold may differ (e.g., allowing for a simple majority). Therefore, it is essential to review the company's Constitution to determine the applicable approval requirements for DWR.
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Q：
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Can a DWR be signed in counterparts?
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A：
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A DWR may be executed in counterparts, whereby it consists of multiple identical copies, each signed by one or more directors in accordance with Clause 16 of the Third Schedule of the CA 2016.
All signed counterparts, when taken together, shall constitute a single valid resolution.
If a company has adopted its own Constitution, the provisions therein shall prevail.
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Q：
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Are electronic or digital signatures allowed?
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A：
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Yes. Both digital and electronic signatures are legally binding in Malaysia under the Electronic Commerce Act 2006 and the Digital Signature Act 1997, provided that they satisfy the required standard of validity and authenticity.
Where a company has adopted a Constitution, the provisions of the Constitution shall prevail in determining whether such forms of execution are permitted, provided that such provisions are consistent with applicable laws, including the CA 2016.
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Q：
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Do all the members need to sign a members’ written resolution (“MWR”)?
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A：
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No, not all the members are required to sign the MWR. This approval threshold depends on the type of resolution being passed such as an Ordinary Resolution requires a simple majority, while a Special Resolution requires at least 75% approval. As such, unanimous consent is not required for an MWR.
If a company has adopted a Constitution, its provisions should also be considered. Such provisions may prescribe additional requirements, provided they are consistent with the CA 2016. However, they cannot override the statutory approval thresholds.
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Q：
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Can a members’ written resolution be circulated and signed electronically?
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A：
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Yes. An MWR may be circulated in hard copy or electronic form pursuant to Section 300 of the CA 2016. Under Sections 306(1) & (2) of the CA 2016, members may signify their agreement by signing the document physically or electronically.
As always, if a company has adopted a Constitution, its provisions should also be referred to in determining the acceptable mode of execution, provided that such provisions are consistent with the CA 2016.
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FAQ
