A key issue for alliance contracting is that clauses containing 'pure' agreements to agree are not legally enforceable. This means that such clauses may only be effective when the Participants uphold the alliance ideals and act in line with agreed alliance principles (i.e., they actually come to an agreement, as contemplated).
In the absence of any clear charter of agreed and objectively measurable behaviours, this may be difficult to prove. Also, if one of the Participants does not uphold the alliance ideals by not agreeing to a matter covered by a clause such as this, there is very little the other Participant(s) can do in the circumstances. Not only is the clause not enforceable, but the operation of the no fault - no blame principle may prevent the aggrieved Participant litigating. In this context, if an alliance Participant's breach of a charter of agreed behaviours was characterised as a 'wilful default', it would help improve the value of using 'agree-to-agree' clauses.
Ultimately, however, alliance agreements need to include as many of the terms agreed between the Participants as possible, while maintaining the flexibility for the alliance to evolve. Even if the parties have not yet approved precise terms, a settled process for agreement can be inserted to strengthen the argument that the Participants intend to be bound by the agreement. Despite this, if the parties are unable to come to an agreement about the stated issue, a court may hold that there is no agreement between the parties about the subject matter of the clause and therefore that the clause is unenforceable, at least in part.