The Pirate’s Code

by Tony Wilson

Is the Softwood Dispute a Hollywood Movie or a wild rollercoaster ride? Or both?
Don’t you just love the Softwood Lumber Dispute these days? With billions of dollars being held to ransom by a seemingly unscrupulous adversary, thousands of jobs at stake, and its own brand of Courtroom drama, I can’t decide whether it’s a Hollywood movie or a wild ride at Disneyland.

Let’s think of a movie script that tells the same story, only allegorically. Perhaps it’s a western. Picture a Big Company run by Big Men who aren’t afraid of using Big Sticks when the Big Moment strikes them. Because they’re so big, we’ll call them “Bigco.” But as every Western has to have an underdog, we’ll call our protagonist “Smallco.”

Smallco sells so much stuff to Bigco, it begins to realize that it’s vulnerable to the whims of its biggest customer, (not to mention the Big Politicians whose campaign expenses Bigco not-so-coincidentally finances). Smallco has done rather well off its business with Bigco, but it wonders whether Bigco might use one of those Big Sticks against it some day. Being small, (and arguably thinking small), Smallco doesn’t like being drawn into messy battles with sticks. It prefers to play by the rules. So in one of Bigco’s weaker moments, Smallco persuades it to enter into a “Code” which they’ll use to settle any conflicts that might come up. Bigco signs the deal because it gets a secure source of something Smallco has lots of (such as “oil”). Smallco adopts the Code only because the dispute resolution rules are binding on Bigco. Just for fun, let’s say they call their Code “NAFTA.”

And in our story, the Code works well for a time. That is, until there’s a Big Problem that turns our Western into a Legal Drama. Bigco has done something rather dodgy over a boring trade issue like “softwood lumber.” Backed by its Big Politicians, it refuses to return to Smallco an unimaginably Big sum of Smallco’s money. Relying on the rules it forged under the Code, Smallco takes the matter to a hearing. It wins. Bigco appeals. Smallco wins again. Bigco appeals again and loses. This goes on for a very long time and each time they have a hearing, Bigco always loses. Finally, with no appeals left, Bigco loses for the last time. Smallco is vindicated. In movie parlance, the asteroid is destroyed, the crew is rescued, the cattle come home, the boy gets the girl and the villain is forced to pay up. Hugs are exchanged in the halls of Smallco, and rousing emotional music fills the theatre to jerk tears from the audience’s eyes.

But wait. It’s a false ending! Our good story now turns bad and ugly. Instead of doing what everyone else does when they lose the last appeal (i.e. they pay up so the audience can go home), we get on a rollercoaster ride. “Frankly” says Bigco “I don’t give a damn what the court says.” “I’m not giving you your money back. And there ain’t nothin’ you can do about it!” Outraged, Smallco holds up the Code and all the judgments in its favour, and says: “We entered this Code because we wanted both of us to live by these rules. Now you won’t comply with the Rules you helped to write?”

“Well”, says the man from Bigco, “They’re not really Rules.” “They’re more like Guidelines.” “Here at Bigco, we call it ‘The Pirate’s Code.’”

So there you have it. It’s not a Western or a Legal Drama! It’s a Pirate movie! But there’s just one problem with our Pirate movie.

We’re not the Pirates.

Tony Wilson is a Franchise Lawyer and Intellectual Property Lawyer at Boughton. He’s written for the Globe and Mail, the Vancouver Sun, and Macleans magazine. E-mail: twilson@boughton.ca.

This article was published in the December 2005 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.