Unfortunately, the call for the general meeting has become the victim of pernicious customary practices, causing that, on multiple occasions, such meeting to become null and void for violating the imperative formalities imposed by the legal system that governs it, and, even more, for infringing the fundamental rights of communication and information that the shareholders have. Among such practical deviations, the act by means of which the shareholders are summoned to the general meeting stands out; that is to say, the notice of meeting and its due publication.
The figure of the notice of meeting is set forth in Section Six of Chapter V of the aforementioned body of rules, relating to the holding of general meetings, the following articles being particularly illustrative:
"The call for the meetings shall be made by the Manager or the Board of Directors, or by the Statutory Auditors, except as provided in Articles 168, 184 and 185".
"Article 186.- The call for the general meetings must be made by means of the publication of a notice in the electronic system established by the Ministry of Economy with the anticipation established by the bylaws, or in the absence thereof, fifteen days prior to the date set for the meeting. During all this time, the report referred to in the general statement of Article 172 will be available to the shareholders at the offices of the corporation".
"Article 187.- The call for the Meetings shall contain the Agenda and shall be signed by the person issuing it.
Thus, the call becomes the formal act of publicity deployed by the administrative body of the corporation, or by the supervisory body as the case may be, for the purpose of notifying the shareholders of the imminent holding of a general meeting, complying with the requirements of form and procedure that the General Law of Mercantile Corporations itself categorically establishes. The primary purpose of this legal instrument lies in putting the shareholders in a position to attend the corporate conclave and exercise, consequently, their sacred right to vote, being that "such notice or call to the partners constitutes one of the essential requirements for the legal constitution of a meeting and the adoption of binding resolutions" (García and Tovar, 2018, p. 451).
By virtue of this, a notice of meeting lacking timely precision in its content would ipso facto lose all effectiveness as a suitable means of notification and communication to the members.
Now, what happens if the shareholders do not attend the general meeting on the date, time and place specified in the call? To this end, the legislator has foreseen, with clear vision, that if the general meeting is not able to meet as stipulated in the initial call, then it will be feasible to issue a second call:
"Article 191.- If the Meeting cannot be held on the day set for its meeting, a second call shall be made with an expression of this circumstance and the meeting shall resolve on the matters indicated in the Agenda, regardless of the number of shares represented."
This provision inserted in the General Law of Commercial Companies has an undeniable logic, since the underlying ratio legis suggests that the non-attendance of the shareholders at the meeting should not, per se, be interpreted as a deliberate attitude of avoiding their corporate liability; on the contrary, the law itself admits the possibility that the shareholders have been prevented from participating for reasons beyond their control. Consequently, Article 191 gives the benefit of the doubt, and allows the lack of quorum to be remedied by issuing a second call for the collective deliberation.
So, does this mean that if a general shareholders' meeting is not validly constituted, it must be called repeatedly until it is legally constituted? Would it be feasible to hold a third, fourth or even a fifth call? The answer to these questions is, without any hesitation whatsoever, a resounding "no". It must be vehemently emphasized that the aforementioned Article 191 of the General Law of Commercial Companies establishes that the general meeting may validly meet, through a second call, without requiring the presence of a minimum number of partners or shares representing the corporate capital. Therefore, if the shareholders fail to attend on the date indicated in the second call, the meeting will be considered legally constituted regardless of the number of attendees, unless otherwise expressly established in the articles of incorporation.
Consequently, the corporate legal framework provides a suitable mechanism to avoid the proliferation of successive calls that could result in the paralysis of the corporate will, and at the same time, prevents the holding of a meeting whose validity could be judicially challenged for failure to comply with essential formalities.
However, as mentioned in previous sections, there are corporations that make the mistake of trivializing the relevance of the notice of meeting as an instrument that guarantees the shareholders' right to information. This minimization has given rise to a practice consisting of including, within the same publication, both the first and the eventual second call, thus foreseeing the possibility that the meeting may not be validly constituted on the date originally foreseen.
To illustrate this modality, the following example is given of the drafting of a call for proposals that anticipates the issuance of a second call for proposals:
Based on the provisions of articles 166, section VI, 180, 181, 183, 186 and 187 of the General Law of Mercantile Corporations, the shareholders of the entity ______________ are hereby summoned to the Extraordinary General Meeting to be held on _________ at _________, at the Company's address ________________; likewise, it is hereby informed that if a quorum is not present, the meeting will be held at 12:00 p.m. at the address indicated above, the meeting is to address the matters contained in the following: (Roja, 2020, p. 51).
As can be clearly observed, the preceding model shows that, in the event that the first call does not generate the quorum required by corporate law, a second call is issued in advance and contained in the same act. In other words, the first and second calls are published simultaneously.
Apparently, this practice can be justified under a logic of administrative foresight. The administrator or statutory auditor acting in such a manner seems to anticipate the possibility that the shareholders may abstain from attending, either because they are not at the corporate domicile, because they lack interest in the items on the agenda, or simply because they are not interested in the items on the agenda, or simply because they do not want to attend. In such a scenario, the joint call is a mechanism of procedural economy that avoids redundant procedures.
In this order of ideas, it is imperative to ask: is there a real harm in the joint publication of the first and second notices of meeting? After all, the essence of both is to keep the shareholders fully informed about the holding of the general meeting. Then, what ontological difference could be derived from the fact that both notices are inserted in a single publication?
For almost a couple of decades, the thesis entitled "NULLITY OF A SHAREHOLDERS' MEETING. PROCEEDS WHEN THE CONVOCATIONS DO NOT COMPLY WITH THE RESPECTIVE LEGAL FORMALITIES" was erected as the doctrinal foundation that resolved such questions, categorically holding that the simultaneous publication of both convocations constituted a substantial infringement of Article 191 of the General Law of Commercial Companies, sufficient to declare the nullity of the corresponding meeting:
If it is proven that both the first and second calls for a shareholders' meeting were published on the same day, as if it was already known that the initial meeting could not be held due to lack of quorum, such circumstance leads to the nullity of the meeting held in clear violation of Article 191 of the General Law of Mercantile Corporations, since for the validity of such shareholders' meetings it is an indispensable requirement that the notices be issued within the terms and time limits provided for such purpose, since if the first meeting could not be held on the appointed day, a second notice must be issued stating such circumstance, thus complying with the purpose pursued by such legislation (Tribunales Colegiados, 2000, Tesis Aislada, Registro digital: 191640).
However, an unavoidable fact cannot be overlooked: the regulatory text of Article 191 of the General Corporations Law does not expressly establish a prohibition that prevents the inclusion of both notices in the same publication. In other words, the law does not categorically prohibit the simultaneity of such acts.
Hence, the dilemma arises: is it legally feasible to publish the first and second notices together? Recently, the First Chamber of the Supreme Court of Justice of the Nation has offered a definitive answer in this regard, by means of the case law entitled: "NOTICE OF A GENERAL MEETING OF STOCKHOLDERS OF S.A.'s (SOCIEDADES ANÓNIMAS). ARTICLE 191 OF THE GENERAL LAW OF COMMERCIAL COMPANIES ALLOWS ALLOWING THE FIRST AND SECOND CONVOCATIONS TO BE CONSTITUTED IN THE SAME PUBLICATION OR IN TWO DIFFERENT PUBLICATIONS", in which it concludes that both interpretations are constitutionally admissible:
Article 191 of the General Law of Mercantile Corporations provides that if a meeting cannot be held on the day set for its meeting, a second call will be made with an expression of this circumstance. This rule has had the same wording since the legislator introduced it in 1934 and, since then, it has been interpreted in the corporate reality in two plausible ways. On the one hand, it has been interpreted that this rule allows the first and second calls to be contained in the same publication, since there is no express prohibition in this respect, nor is it expressly required that both calls be contained in different publications. In this sense, it has been a common practice of some companies to make a single publication containing the first and second notices. However, the rule reasonably admits another interpretation, in the sense that, when it provides that the second notice of meeting shall contain an expression of the circumstance of the failure to hold the meeting on the first notice, this implies that the publication of the second notice must be different and subsequent to that of the first notice, and therefore both notices cannot be included in the same publication. Thus, other companies have opted to publish the first and second notices in different publications. In the opinion of the First Chamber of the Supreme Court of Justice of Mexico, both interpretations are constitutionally valid. On the one hand, requiring that the first and second notices be published in different publications would introduce a restriction that is not expressly established in the law and that disproportionately impacts the way in which some corporations have applied this article. On the other hand, the rule also does not prohibit the first and second calls to be made in different publications. Therefore, an interpretation that maximizes the autonomy of the will of the companies should be preferred so that they may determine, according to their circumstances, whether they consider it appropriate for the second call to be made in the same publication as the first or in a different one, and the modality that, if applicable, the companies define in their bylaws, should govern in this respect. (First Chamber of the Supreme Court of Justice of the Nation, 2025, Jurisprudencia, Registro digital: 2030474).
In short, when so determined by the regulatory framework of the bylaws, it will be legally feasible for the second call to be issued simultaneously with the first call, in the same advertising act.
However, in spite of the respectability and authority of the pronouncement issued by the First Chamber of the Supreme Court of Justice of the Nation, I must express, from a strictly personal point of view, my disagreement with the referred jurisprudential criterion, in the understanding that, from my hermeneutical perspective, the wording of Article 191 does not admit interpretative duplicity.
It is sufficient to carry out a grammatical and semantic analysis of the aforementioned numeral, specifically in the section that reads: "a second call will be made with an expression of this circumstance". The governing verb "shall" unambiguously denotes a normative imperative, which means that we are dealing with a provision of an imperative and cogent nature, the observance of which is beyond the dispositive will of the parties; consequently, the structuring of the second call cannot be left to the private autonomy of the partners, nor be subject to the provisions of the corporate bylaws.
In other words, there is no legal basis whatsoever to infer that the eventuality of a second call may be subject to what the shareholders agree, since the wording of Article 191 is so conclusive that it precludes any subjective interpretation. I would even go so far as to assert that its wording possesses a degree of clarity that excludes any hermeneutical ambiguity.
Thus, if article 191 does not admit any interpretation other than its literal wording, it is legally inadmissible for the second call to be organized or published as stipulated in the bylaws. A fortiori, a simultaneous publication with the first one cannot be considered valid, which irremediably means that for its formalization, the requirements prescribed in articles 184, 185, 186 and 187 of the mercantile ordinance must be complied with.
However, it would be wrong to deny that the content of Article 191 has remained unchanged for more than ninety years, which undoubtedly generates practical tensions in an environment where corporations are developing in an increasingly fast-paced and technologically dynamic economic landscape.
But the anachronism of the precept cannot be interpreted as an open door to a multiplicity of interpretative meanings, that is to say, the problem of article 191 does not lie in its polysemy, but in its legislative obsolescence, therefore, the solution to its content does not lie in accepting divergent readings that contradict its literal nature, but in promoting a legislative reform that updates the legal text in accordance with modern times.
What inferences can we derive from the foregoing? It is undeniable that the jurisprudence emanating from the highest national court constitutes, as of today, a firm position on the issue of second calls of the corporation, however, from my perspective -perhaps outdated or excessively attached to the normative orthodoxy-, I could not recommend that the design and execution of the second calls be subject to the discretion of the stipulations contained in the bylaws, I could not recommend that the design and execution of second calls be subject to the discretion of the stipulations contained in the bylaws, since I believe that such a possibility would violate public policy provisions that should not be left to the mercy of private autonomy.
Consequently, from my very personal legal point of view, I consider that the second calls must be subject to the same solemnities and requirements that apply to the first calls, taking into account the following elements:
1. Be published by the administrator, the board of directors or, in its absence, by the statutory auditors, in accordance with the provisions of Articles 168, 184, 185, 186 and 187 of the General Law of Mercantile Corporations.
2. To expressly and clearly include the agenda as the guiding instrument for corporate deliberations.
3.Issued by means of a notice inserted in the electronic system provided for such purpose by the Ministry of Economy.
4.Be published as far in advance as determined by the bylaws; or, in the absence thereof, at least fifteen calendar days prior to the holding of the meeting.
5.Ensure the availability of the pertinent documentation, during the established period, at the corporate offices of the company, in order for shareholders to fully exercise their right to information.
By Eduardo Velasco López
References.
NOTICE OF GENERAL MEETING OF SHAREHOLDERS OF CORPORATIONS. ARTICLE 191 OF THE GENERAL LAW OF CORPORATIONS ALLOWS THE FIRST AND SECOND NOTICES TO BE PUBLISHED IN THE SAME PUBLICATION OR IN TWO DIFFERENT PUBLICATIONS. First Chamber of the Supreme Court of Justice of the Nation. Civil. Jurisprudence. Digital record: 2030474. Thesis: 1a./J. 76/2025 (11th.). Eleventh Epoch. Judicial Weekly of the Federation. https://sjf2.scjn.gob.mx/detalle/tesis/2030474
González García, H. & León Tovar S. H. (2018). Commercial companies and introduction to commercial law. Mexico: Oxford University press.
NULLITY OF A SHAREHOLDERS' MEETING. THE NULLITY OF A SHAREHOLDERS' MEETING IS APPLICABLE WHEN THE NOTICES DO NOT COMPLY WITH THE RESPECTIVE LEGAL FORMALITIES. Digital record: 191640. Instance: Collegiate Circuit Courts. Ninth Epoch. Subject Matter(s): Civil. Thesis: II.2o.C.229 C. Source: Judicial Weekly of the Federation and its Gazette. Volume XII, July 2000, page 794. Type: Isolated.
General Law of Mercantile Corporations. Last amendment published in the Official Gazette of the Federation on October 20, 2023. Amounts updated by Resolution DOF 12/28/2023. https://www.diputados.gob.mx/LeyesBiblio/ref/lgsm.htm
Ruiz Rojas, Lic. R. (2020). Meeting of partners or shareholders in commercial corporations. Kindle edition (5th ed.). Mexico: Editorial ISEF.
