Dongfang Risheng and FOCUS 5.
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Second, the amount of compensation claimed by FOCUS in the early stage does not meet the standard of information disclosure;
According to the relevant provisions, the company is liable for a large amount of compensation, and the amount of loss accounts for more than 10% of the audited net profit of the listed company in the latest fiscal year. Arbitration cases with an absolute amount of more than 1 million yuan should fulfill the obligation of information disclosure in a timely manner.
In short, things happen for a reason, not deliberately concealed. Although Dongfang Risheng's reply letter has made a seemingly reasonable explanation for the practice of late disclosure in the early stage, it has a vague treatment of some information. For example, Dongfang Risheng considered that FOCUS had breached the contract first and failed to issue the notice of commencement as agreed, and the agreement was automatically terminated, so why not issue a letter of termination to the other party? Why did the arbitral tribunal finally rule in favor of FOCUS? Why can these cases be disclosed? He also said that after self-examination, the company did not have other litigation and arbitration matters that should be disclosed but not disclosed.
In this reply announcement, Dongfang Risheng also disclosed more details of the dispute with FOCUS. On December 16 ,
2020, FOCUS signed two component supply agreements with Dongfang Risheng. The agreement stipulates that:
(1) Dongfang Risheng will provide FOCUS with 400 MW, 470 MW respectively and 870 MW in total February 27 ," FOCUS sent the notice of commencement to Dongfang Risheng by e-mail, but it was not delivered by mail. On March 11 ,
2021, Dongfang Risheng sent a draft of the advance payment guarantee to FOCUS, and the other party replied that it would provide feedback, but there has been no reply since then.
With the impact of market environment such as silicon material price and the increase of module production cost, Dongfang Risheng renegotiated the contract price with FOCUS. On March 15 , 2021, FOCUS sent a notice of default to Dongfang Risheng on the grounds of seeking to renegotiate the price and failing to issue an advance payment guarantee within the prescribed time limit. Dongfang Risheng replied to refute and urged the feedback of the draft advance payment guarantee provided before to seek a feasible plan to continue the performance of the contract. On June 28 ,
2021, FOCUS sent a letter of termination to Dongfang Risheng to terminate two component supply agreements. Dongfang Risheng once again wrote back to refute FOCUS's allegations of breach of contract and expressed the hope that cooperation could be reached. Dongfang Risheng disclosed that FOCUS signed an alternative procurement contract with a third party on the day it issued the above termination letter. On July 14 ,
2021, FOCUS submitted an arbitration application to ICC (International Court of Arbitration of the International Chamber of Commerce), requesting that Dongfang Risheng breach the contract and compensate for the losses caused by the breach of contract, the interest before and after the ICC award, and bear all the arbitration costs.
Dongfang Risheng believes that, first, FOCUS did not issue the notice of commencement in the agreed way, and the two agreements were automatically terminated on March 1, 2021; Second, even if the arbitration tribunal denies the automatic termination of the agreement, FOCUS claims that Dongfang Risheng's breach of contract can not be established on the grounds that Dongfang Risheng has been negotiating and cooperating with it and renegotiating the price of the agreement, so FOCUS has no right to terminate the contract; Third, FOCUS has no right to terminate the contract on the grounds that Dongfang Risheng violates the agreement on issuing the advance payment guarantee; Fourth, even if the agreement exists, FOCUS unilaterally breaks the contract and has no right to claim any compensation or indirect loss compensation from Dongfang Risheng in accordance with the agreement on the upper limit of liability in the agreement.
In addition, Dongfang Risheng said that the 400MW and 470MW agreements are independent of each other, and the agreed performance periods are different. When FOCUS unilaterally terminates the contract, the 470MW contract is still within the time limit for price negotiation, and the two contracts should be treated differently. On October 26 ,
2021, the ICC formed a court, and the two sides submitted several rounds of replies and defense opinions to the ICC. FOCUS claimed that the company was in breach of contract and demanded a minimum compensation of $71 million for direct losses, interest and arbitration costs. Or compensate for all losses 1. Therefore, the two agreements are automatically contacted, so the company has no breach of contract, and FOCUS has no right to claim any compensation. From February 13 to 17 ,
2023, the arbitration case between FOCUS and Dongfang Risheng was heard in New York, USA. On September 26 ,
2023, Dongfang Risheng received the mail of the award issued by ICC forwarded by the lawyer. According to the arbitration award of ICC, after calculation, the award to the customer is FOCUS $71.675 million, which is equivalent to about RMB 5.
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