22
Q1 2023
FINANCIAL
INFORMATION
─
Note 10
Commitments and contingencies
Contingencies—Regulatory, Compliance
and Legal
Regulatory
Based on findings during an internal investigation, the Company
self-reported to the SEC and the DoJ, in the United
States, to the Special Investigating Unit (SIU)
and the National Prosecuting Authority (NPA)
in South Africa as well as to various authorities in other countries
potential suspect payments and other compliance
concerns in connection with some of the Company’s
dealings with Eskom and related persons. Many of those
parties have expressed an interest in, or
commenced an investigation into, these matters and the Company is
cooperating fully with them. The Company paid $104
million to Eskom in December 2020 as
part of a full and final settlement with Eskom and the Special Investigating
Unit relating to improper payments and other compliance
issues associated with the
Controls and Instrumentation Contract, and its Variation
Orders for Units 1 and 2 at Kusile. The Company
made a provision of approximately $325 million which
was recorded in Other income (expense), net, during the third
quarter of 2022. In December 2022, the Company settled with
the SEC and DOJ as well as the
authorities in South Africa and Switzerland. The matter is still pending
with the authorities in Germany,
but the Company does not believe that it will need to
record
any additional provisions for this matter.
General
The Company is aware of proceedings, or the threat of proceedings,
against it and others in respect of private claims by
customers and other third parties with
regard to certain actual or alleged anticompetitive practices.
Also, the Company is subject to other claims and legal
proceedings, as well as investigations carried
out by various law enforcement authorities. With respect to the
above-mentioned claims, regulatory matters,
and any related proceedings, the Company will bear
the related costs, including costs necessary to resolve
them.
Liabilities recognized
At March 31, 2023, and December 31, 2022, the Company had
aggregate liabilities of $97 million and $86
million, respectively, included
in “Other provisions” and
“Other non
‑
current liabilities”, for the above regulatory,
compliance and legal contingencies, and none of the individual
liabilities recognized was significant. As it is
not possible to make an informed judgment on, or reasonably predict,
the outcome of certain matters and as it is not possible,
based on information currently
available to management, to estimate the maximum potential
liability on other matters, there could be adverse outcomes beyond
the amounts accrued.
General
The following table provides quantitative data regarding the Company’s
third-party guarantees. The maximum potential payments
represent a “worst-case
scenario”, and do not reflect management’s expected
outcomes.
Maximum potential payments
($ in millions)
March 31, 2023
December 31, 2022
Performance guarantees
3,778
4,300
Financial guarantees
94
96
Total
(1)
3,872
4,396
(1)
Maximum potential payments include amounts in both continuing and discontinued operations.
The carrying amount of liabilities recorded in the Consolidated
Balance Sheets reflects the Company’s best estimate of
future payments, which it may incur as
part
of fulfilling its guarantee obligations. In respect of the above guarantees,
the carrying amounts of liabilities at March
31, 2023, and December 31, 2022, were not
significant.
The Company is party to various guarantees providing financial
or performance assurances to certain third parties. These guarantees,
which have various
maturities up to 2035, mainly consist of performance guarantees
whereby (i) the Company guarantees
the performance of a third party’s product or service
according to the terms of a contract and (ii) as member
of a consortium/joint-venture that includes third parties, the
Company guarantees not only its own
performance but also the work of third parties. Such guarantees
may include guarantees that a project will be completed
within a specified time. If the third party
does not fulfill the obligation, the Company will compensate the
guaranteed party in cash or in kind. The original
maturity dates for the majority of these
performance guarantees range from one to ten years.
In conjunction with the divestment of the high-voltage cable
and cables accessories businesses, the Company has
entered into various performance guarantees
with other parties with respect to certain liabilities of the
divested business. At March 31, 2023, and December 31,
2022, the maximum potential payable under
these guarantees amounts to $855 million and $843 million, respectively,
and these guarantees have various original maturities
ranging from five to ten years.
The Company retained obligations for financial, performance
and indemnification guarantees related to the sale of the
Power Grids business (see Note 3 for
details). The performance and financial guarantees have been
indemnified by Hitachi Ltd. These guarantees, which
have various maturities up to 2035, primarily
consist of bank guarantees, standby letters of credit, business
performance guarantees and other trade-related
guarantees, the majority of which have original
maturity dates ranging from one to ten years. The maximum amount
payable under these guarantees at March 31, 2023, and
December 31, 2022, is
approximately $2.5 billion and $3.0 billion, respectively.
Commercial commitments
In addition, in the normal course of bidding for and executing certain
projects, the Company has entered into standby
letters of credit, bid/performance bonds
and
surety bonds (collectively “performance bonds”) with various
financial institutions. Customers can draw on such
performance bonds in the event that the Company
does not fulfill its contractual obligations. The Company would
then have an obligation to reimburse the financial institution
for amounts paid under the performance
bonds. At both March 31, 2023, and December 31, 2022, the
total outstanding performance bonds aggregated to
$2.9 billion. There have been no significant
amounts reimbursed to financial institutions under these types
of arrangements in the three months ended March
31, 2023 and 2022.
Product and order-related contingencies
The Company calculates its provision for product warranties
based on historical claims experience and specific review
of certain contracts. The reconciliation of the
“Provisions for warranties”, including guarantees of product performance,
was as follows:
($ in millions)
2023
2022
Balance at January 1,
1,028
1,005
Claims paid in cash or in kind
(40)
(36)
Net increase in provision for changes in estimates, warranties
issued and warranties expired
65
38
Exchange rate differences
7
(8)
Balance at March 31,
1,060
999