art one: Agreements to negotiate—are they enforceable? ask Antonio Bueno QC & Deborah Tompkinson
A familiar clause in commercial contracts requires the parties to conduct negotiations in good faith, usually to settle matters which have not been, or, which is more likely, cannot be settled at the time of drafting. Such clauses may have been influenced by US contracts, where agreements to conduct negotiations in good faith have been held to be analogous to agreements to use best endeavours, and consequently, enforceable, eg Channel Home Centres, Division of Grace Retail Corporation v Frank Grossman [1986] 795 291.
In England and Wales, however, doubts remain about the legal efficacy of such clauses. Concerns centre on whether an agreement to negotiate is unenforceable because it lacks the necessary certainty for contract, whereas the same was not true, for example, of an agreement to use best endeavours, see Walford v Miles [1992] 2 AC 128, [1992] 1 All ER 453.
If these concerns are legitimate, and Walford v Miles has so broad a scope, it would
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